Nelitz et al. v. Dyck et al. [Indexed as: Nelitz v. Dyck]
52 O.R. (3d) 458
[2001] O.J. No. 64
Docket No. C32264
Court of Appeal for Ontario
Morden, Rosenberg and Simmons JJ.A.
January 16, 2001
Corporations--Tortious liability--Corporation may be liable for battery directly by using individual to commit act --Plaintiff's insurer made appointment for her to attend for independent chiropractic examination--Insurer did not tell plaintiff that she had right to refuse to attend--Plaintiff showed up for examination and did not resist or protest--In absence of consent by plaintiff to examination insurer could be directly liable for battery because it retained chiropractor to commit tort--Plaintiff consented to examination by her conduct.
Insurance--Duty of good faith--Insured receiving accident benefits from insurer for chiropractic care--Insurer made appointment for insured to attend for independent chiropractic examination--Insurer did not tell insured that she had right to refuse to attend--Letter had coercive tone--Insurer did not breach duty of good faith.
Torts--Battery--Plaintiff's insurer made appointment for her to attend for independent chiropractic examination--Insurer did not tell plaintiff that she had right to refuse to attend --Plaintiff showed up for examination and did not resist or protest--Plaintiff consented to examination by her conduct --Examination did not constitute battery.
After she was involved in two motor vehicle accidents, the plaintiff claimed accident benefits from her insurer, Gore, primarily for chiropractic care. Gore had difficulty obtaining information from the plaintiff's chiropractor about the plaintiff's prognosis. Accordingly, Gore arranged an independent chiropractic examination with the defendant D and wrote to the plaintiff instructing her to attend for a scheduled appointment. The plaintiff was not told that she had the option of refusing to attend. The plaintiff attended D's office and submitted to an examination. While she did not sign a form consenting to the examination, she gave no sign that she was not consenting. She later claimed that, at the conclusion of the examination, D pushed down on her head quickly and harshly, and that she began to feel unwell after the examination. She claimed that she continued to experience nausea, dizziness and an inability to concentrate. She could no longer perform properly at work, and her relationship with her husband suffered. She attributed her change in health to D's actions in pushing down on her head.
The plaintiff brought an action against D for damages for battery and against Gore for damages for battery and breach of the duty of good faith. An expert witness called by the plaintiff testified that the best explanation for the plaintiff's symptoms was vertebrobasilar artery injury (VBI) caused by manipulation of the spine. However, the weight of the evidence, including that of the plaintiff's expert chiropractor, was that the procedure described by the plaintiff would not cause VBI because there was no twisting of the head. The defence expert offered several explanations for the plaintiff's symptoms, including VBI possibly caused by the manipulations of the plaintiff's own chiropractor, and pre- existing physical and emotional problems. The trial judge accepted that the plaintiff suffered sudden and debilitating symptoms after her visit to D's office. She did not accept that VBI was the only possible cause of the plaintiff's symptoms. She found that D, a highly qualified and experienced chiropractor, had not performed the procedure described by the plaintiff. Turning to the plaintiff's theory that the examination itself was a battery because the plaintiff did not genuinely consent to it, the trial judge found consent by conduct. She found that Gore had no right to require an independent chiropractic examination of the plaintiff and that the letter to the plaintiff informing her of the appointment had a "coercive tone". However, she found that a corporation cannot, itself, commit battery and that Gore could not be vicariously liable because it neither pleaded nor proved that D was Gore's employee or agent. After considering the whole course of conduct between Gore and the plaintiff, she concluded that there was no breach of the duty of good faith, notwithstanding that Gore had failed to inform the plaintiff that she was not required to attend the examination and that the letter had a tone of coercion. The action was dismissed. The plaintiff appealed.
Held, the appeal should be dismissed.
The trial judge did not misdirect herself with respect to causation. There was no inconsistency between her finding that the plaintiff was an honest witness and her finding that D did not perform the complained-of procedure. The balance of the evidence was largely inconsistent with D having performed the procedure. The plaintiff failed to show that the procedure was performed. The trial judge did not err when she held that she had to be persuaded on a balance of probabilities that the diagnosis of VBI was the only possible explanation for the plaintiff's symptoms. This case was distinguishable from cases in which there was no doubt that the defendant's tortious conduct could have caused the plaintiff's injuries, and the issue was whether there were other factors that caused or contributed to the injuries. In such cases, clearly, it is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. That would be applicable to this case only if the trial judge had found that D performed the act complained of and a question then arose as to the contribution of the plaintiff's pre-existing conditions. The case, however, never made it that far. As the plaintiff did not prove that D committed the act, the primary basis for the battery claim failed.
D reasonably relied upon the fact that the plaintiff appeared for the examination and did not express any lack of consent. D was entitled to rely on the plaintiff's conduct as indicative of her consent. Even if the plaintiff did not consent to the examination because of the misrepresentation by Gore, D was, in effect, an innocent agent.
The trial judge erred in finding that Gore could not be liable for battery because it was a corporation. While a corporation cannot itself commit battery, because it cannot physically touch an individual, it can be liable for battery either directly by using an individual to commit the act or vicariously for acts committed by an employee or agent within the scope of his or her authority. The trial judge considered only vicarious liability and dismissed the claim because D was an independent contractor. However, if the plaintiff did not consent to the examination, Gore could be liable directly for battery because it expressly retained D to commit the tort. Subject to the question of consent, there was no doubt that Gore used D to commit the alleged battery. Gore contacted D, made the appointment and instructed the plaintiff to attend for the examination. However, consent was made out. After receiving Gore's letter, the plaintiff had over a month to voice any objection to attending the examination. Her failure to resist or protest was an indication of implied consent. There was no force or threat of force nor any fraud or deceit as to the nature of Gore's conduct. The failure to disclose to the plaintiff that she was not legally required to attend the examination did not constitute deceit sufficient to vitiate consent.
The trial judge did not err in concluding that there was no breach of the duty of good faith by Gore.
APPEAL by the plaintiff from the dismissal of an action for damages for battery and breach of the duty of good faith.
Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, [1997] 1 W.W.R. 97, 203 N.R. 36, 31 C.C.L.T. (2d) 113; Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289, 110 N.R. 200, 107 N.B.R. (2d) 94, 267 A.P.R. 94, 4 C.C.L.T. (2d) 229, distd Other cases referred to Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, 92 D.L.R. (4th) 449, [1992] 4 W.W.R. 577, 138 N.R. 81, 68 B.C.L.R. (2d) 29, 12 C.C.L.T. (2d) 1 Statutes referred to Family Law Act, R.S.O. 1990, c. F.3 Insurance Act, R.S.O. 1990, c. I.8 Rules and regulations referred to Statutory Accident Benefits Schedule--Accidents before January 1, 1994, R.R.O. 1990, Reg. 672 (Insurance Act) Authorities referred to Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) Prosser, Handbook of the Law of Torts, 4th ed. (St. Paul, Minn.: West Publishing Co., 1971)
Roderic G. Ferguson, Q.C., M. Steven Rastin and Joyce Vanden Bos-Chun, for appellants. Timothy M. Lowman, for respondent Dyck. W.J. McCorriston, for respondent Gore Mutual Insurance Co.
The judgment of the court was delivered by
[1] ROSENBERG J.A.: -- Pauline Nelitz appeals from the judgment of Eberhard J. dismissing her action against the respondent Dr. Gary Dyck for damages for battery and against the respondent Gore Mutual Insurance Company for damages for battery and breach of duty of good faith. Her husband Robert Nelitz appeals from dismissal of his claim under the Family Law Act, R.S.O. 1990, c. F.3. These claims arose out of an independent chiropractic examination performed by Dr. Dyck at the request of Gore. The trial judge ordered that the plaintiffs pay party-and-party costs to the defendants. The appellants also seek leave to appeal against the costs order and argue that there should have been no costs ordered.
[2] The principal issues on appeal concern proof of causation, liability of a corporation for battery, and the scope of the consent defence in the context of an independent medical examination requested by an insurer. For the reasons that follow, I would dismiss the appeal.
The Facts
[3] Pauline Nelitz was involved in two motor vehicle accidents. The first accident was in 1985 and resulted in her having to undergo a discotomy. After this accident, Mrs. Nelitz began treatment with a chiropractor, Dr. Stackhouse. On January 27, 1993, she was involved in the second accident. This accident was not as severe as the first. She continued treatment with Dr. Stackhouse and claimed accident benefits from her insurer, Gore, primarily for chiropractic care with Dr. Stackhouse. Gore had difficulty obtaining information from Dr. Stackhouse about Mrs. Nelitz's prognosis. For over a period of a year-and-a-half, Gore wrote to Dr. Stackhouse, and later to Mrs. Nelitz, seeking information such as the schedule of visits before the accident. Gore received no proper response from either. In February 1994, Gore asked Dr. Stackhouse for Mrs. Nelitz's progress and indicated that Gore was planning to have her examined by another chiropractor. There was no response at that time nor to follow-up letters in June and September nor to a telephone call in October. Notwithstanding Dr. Stackhouse's lack of response, Gore continued to pay his accounts as submitted as well as Mrs. Nelitz's mileage. Finally, Gore's senior claims consultant, Dieter Fischer, contacted Dr. Dyck to arrange an independent chiropractic examination. On December 7, 1994, Fischer wrote to Mrs. Nelitz advising her of the appointment with Dr. Dyck. The text of the letter is important:
Please be advised that we have arranged for an Independent Medical Examination of you by Dr. Gary Dyck, located at 27 Gowan St. Barrie, ON, telephone 705-726-9292, for Wednesday, January 11, 1995 at 10:00 a.m.
Dr. Dyck has requested that you bring along any X-rays which may have been taken either by your family physician or your chiropractor is [sic] it relates to your motor vehicle accident related injuries.
Should you not be able to attend for the scheduled appointment we would ask that you telephone Dr. Dyck's office directly and make alternate arrangements. Should you fail to attend this appointment, any fee charged by the doctor's office for the missed appointment will be your responsibility.
[4] Although it does not say so, Mrs. Nelitz interpreted the letter to mean that if she did not attend for the examination, Gore would stop paying for her chiropractic care with Dr. Stackhouse. She went to Dr. Dyck's office on January 11, 1995. She signed a form authorizing Dr. Dyck to give the results of the examination to Gore. She did not sign a consent to the examination. On the other hand, she gave no indication at all that she was not consenting to the examination. The examination lasted about 25 minutes. She had no complaint about any part of the examination except for what she said happened at the end. She gave the following testimony:
Then I sat down on his examining table and he was standing behind me and I felt his hands on my head and all of a sudden there was a very quick, a quick and a very harsh hand movement pushed down on my head and I kind of was taken, I was kind of shocked, I was stunned. And I said, oh gee, that hurt. And that was the end of the examination.
(Emphasis added)
[5] Mrs. Nelitz testified that after the examination she began to feel unwell. She saw Dr. Stackhouse a few days after the examination and complained to him. He suggested that she call Dr. Dyck. She did so and complained that he "really hurt" her. During the conversation Dr. Dyck used the term "foraminal compression test" (FCT). Dr. Dyck made a note of this term which he attached to the file. Mrs. Nelitz continued to experience nausea, dizziness and an inability to concentrate. She found that she could no longer perform properly at her part-time sales job because she was making errors. She became depressed and angry and this impacted on her relationship with her husband. She attributed the change in health to the actions of Dr. Dyck in pushing down on her head.
[6] Dr. Dyck is a highly qualified and experienced chiropractor and has conducted many independent chiropractic examinations. During his testimony, he described his procedure in exhaustive detail, including the manner in which he performs the FCT. He reviewed his records of the examination of Mrs. Nelitz and described the manner in which he would have performed the FCT:
I would come in behind the patient and do what is written here as the foraminal compression test. Pressure is put on his shoulders. I am going to push down. Stop me if there is any discomfort at all. As I push downwards, it was indicated to me that discomfort was created in the mid dorsal region. That was recorded on the chart right beside the foraminal compression, as mid D.
(Emphasis added)
[7] The evidence from the experts was that the procedure described by Mrs. Nelitz in which pressure is applied to the head has some aspects similar to a cervical foraminal compression test (CFCT). Dr. Dyck testified that a CFCT is a standard orthopaedic test to determine whether arm pain is caused from a radicular involvement in the neck. That test, which would have been conducted early in the examination, was not called for because Mrs. Nelitz had no complaints of arm pain. Dr. Dyck testified that Mrs. Nelitz made no complaint of pain at any time during the examination. He denied performing the procedure described by Mrs. Nelitz or a CFCT or performing any chiropractic manipulation of her.
[8] There was a great deal of evidence about Mrs. Nelitz's condition that pre-existed the examination. There was evidence that she had suffered from headaches, ear pain, right-eye blindness, depression, anxiety, variable neck and chest pain and dizziness, awkwardness and nausea, all of which existed prior to the examination by Dr. Dyck.
[9] The parties called expert evidence. The experts tried to account for the symptoms described by Mrs. Nelitz. The most important witness for Mrs. Nelitz was Dr. Spence. He was of the view that the best explanation for her symptoms was vertebrobasilar artery injury (VBI) caused by manipulation of the cervical spine. However, the weight of the evidence, including the plaintiff's expert chiropractor, was that the description of the procedure by Mrs. Nelitz would not be sufficient to cause the VBI, because there was no twisting of the head. Nevertheless, Dr. Spence was of the view that VBI could be caused without such manipulation, although it usually requires rotational manipulation.
[10] The defence expert, Dr. Berry, offered several explanations for the symptoms: (1) That if there was VBI it could have been caused by the manipulations performed by Dr. Stackhouse. That treatment included multiple cervical manipulations involving rotation of the cervical spine. (2) That in view of her pre-existing psychiatric and marital difficulties, Mrs. Nelitz's depression and associated emotional symptoms arose primarily from stress related to a number of serious family problems. (3) That her pre-existing migraine type problem, which had resulted in episodic complete loss of vision in the right eye, supported a diagnosis of basilar migraine that is characterized by many of the neurological symptoms described by Mrs. Nelitz, such as dizziness and nausea.
The Reasons of the Trial Judge
[11] The trial judge found that Mrs. Nelitz, although an honest witness, was imprecise and tended to gloss over or omit medical history when consulting with her physicians and with the expert witnesses. She also rejected the evidence of Mrs. Nelitz that she complained of any pain while in Dr. Dyck's office and rejected evidence given by Mr. Nelitz that his wife had complained to him in Dr. Dyck's office after the examination. Nevertheless, the trial judge accepted that she suffered "symptoms of unwellness [that] were indeed sudden, obvious and debilitating" and that, in general, "from around January 11, 1995 she felt lousy".
[12] The trial judge found Dr. Dyck to be a very precise witness and that "notwithstanding his lack of particular memory about his examination of Pauline Nelitz on January 11, 1995, that this demonstrated standard examination was likely exactly what he would do and has done thousands of times". Thus, if Dr. Dyck did perform the procedure as described by Mrs. Nelitz, "it would have been a big mistake or a frolic taken for inexplicable reasons".
[13] The trial judge concluded this part of her reasons with the following statement:
In assessing the evidence, I am therefore left with this dilemma: I accept totally that Pauline Nelitz is an honest witness who suffered symptoms which would be caused by vertebral artery injury [VBI]. I also totally accept that Dr. Dyck is an honest competent practitioner whose contemporary charting and reports support that he performed a standard independent chiropractic assessment which did not include a cervical foraminal compression test.
(Emphasis added)
[14] Thus, the trial judge could not find that Dr. Dyck had performed the CFCT based on Mrs. Nelitz's testimony. The trial judge then went on to consider whether the symptoms themselves were proof of causation and referred to the decision of the Supreme Court of Canada in Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289. She noted that Snell was a different case because in this case there was a dispute not only about causation but whether the act was done. She then held as follows:
I find I must be persuaded on a balance of probabilities that it [Dr. Spence's diagnosis of VBI] is the only possible explanation, or I cannot reasonably conclude not only that it is the cause but also go on to find that Dr. Dyck must, therefore, have performed a cervical foraminal compression test even though he says he didn't and I would otherwise have believed him.
[15] The trial judge held that "in spite of the apparent cluster of symptoms after January 11, 1995" she was not persuaded of "any necessary connection between the symptoms". The trial judge gave extensive and careful reasons for this conclusion and found as follows:
As a result of this analysis, I am unable to accept that vertebrobasilar ischaemia is the only possible cause. It is but one theory that could account for Pauline Nelitz's misery. Since I cannot isolate that as a cause and therefore conclude there must have been some traumatic triggering event, and since I have no reason to believe the plaintiff and disbelieve the defendant, I make no finding that a cervical foraminal compression test was performed.
Therefore, the touch which formed the basis of the allegation of battery is not proven to a civil standard.
(Emphasis added)
[16] Notwithstanding that the trial judge found that the plaintiff had not proved the touch that formed the basis for the allegation of battery, she went on to consider a "wider" consent argument. This was based on the theory that the examination itself was a battery. This theory of liability depended on the allegation that Mrs. Nelitz did not give a genuine consent to the examination and only acquiesced in the examination because of a misrepresentation by Gore in their December 7 letter.
[17] The trial judge found that Dr. Dyck did not know of Mrs. Nelitz's reluctance to undertake the examination. She relied upon an excerpt from A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at p. 66 to find consent by conduct. She also held that there was no conspiracy between Dr. Dyck and Gore and no employment or agency relationship. Therefore, Dr. Dyck could not be held liable "for any vitiation of consent by misrepresentation".
[18] The trial judge then considered the liability of Gore for battery on this theory. She held that Gore had no right under the Insurance Act, R.S.O. 1990, c. I.8 or the applicable Statutory Accident Benefits Schedule -- Accidents before January 1, 1994, R.R.O. 1990, Reg. 672 to require an independent chiropractic examination. The December 7 letter made no mention of Mrs. Nelitz's right to refuse. As well, it was "clearly wrong" to purport to hold her responsible for the cost should she fail to attend and this gave "an otherwise innocuous letter a coercive tone". However, the trial judge found that a corporation cannot, itself, commit battery and it could not be vicariously liable because it was neither pleaded nor proved that Dr. Dyck was Gore's employee or agent.
[19] The trial judge then went on to consider whether Gore could be liable for "breach of the duty of good faith". After considering the whole course of conduct between Gore and Mrs. Nelitz, she concluded that there was no breach of duty of good faith, notwithstanding the fact that Gore failed to inform Mrs. Nelitz that she was not required to attend on the examination and the letter had a tone of coercion. The trial judge held that if she were wrong on this aspect of the case she would only have awarded nominal damages of $1 for breach of duty of good faith.
The Grounds of Appeal
[20] The appellants raise the following grounds of appeal:
(1) The trial judge misdirected herself with respect to causation.
(2) The trial judge erred in finding that Mrs. Nelitz consented to the examination by Dr. Dyck.
(3) The trial judge erred in finding that as a corporation Gore could not be liable, through Dr. Dyck, for battery.
(4) The trial judge erred in finding that there was no breach of duty of good faith by Gore.
(5) The trial judge erred in her assessment of damages.
(6) The trial judge should have made an order of no costs.
Analysis
(1) Causation
[21] This was the main issue on the appeal. The appellants argued that the trial judge misdirected herself with respect to causation and that her dismissal of the claim is inconsistent with certain factual findings. Much of the oral argument was directed to what the appellants consider to be the inconsistency between finding that Mrs. Nelitz was an honest witness and became unwell "from around January 11, 1995" and yet failing to find that Dr. Dyck had performed the CFCT. They also argue that the trial judge erred in placing a burden on the plaintiffs to establish the exact cause of the symptoms. The court did not require the respondents to respond to this part of the appeal.
[22] First, there is no inconsistency between finding that Mrs. Nelitz was an honest witness and yet finding that Dr. Dyck did not perform the complained of procedure. While the trial judge found that Mrs. Nelitz was an honest witness, she did not find that she was an entirely reliable witness. The trial judge disbelieved Mr. and Mrs. Nelitz on important issues. More importantly, she found that Dr. Dyck was an honest and reliable witness. If that were the only evidence in the case, and the trial judge was unable to decide which version of events was correct, the plaintiffs would have failed because they bore the burden of proof.
[23] However, that was not the only evidence and the trial judge went on to consider all of the evidence, including the expert evidence. The balance of the evidence, some of which I have summarized above, was largely inconsistent with Dr. Dyck having performed a procedure like the CFCT. Considering all of the evidence, the trial judge was not persuaded that Dr. Dyck had performed a test that was not required, that would, as she said, mean that he was on a "frolic taken for inexplicable reasons".
[24] In the course of his oral submissions, counsel for the appellants complained that the trial judge had not carried out her duty to make findings of fact. This submission was based on the excerpt quoted above where the trial judge says, "I make no finding that a cervical foraminal compression test was performed". This submission betrays a misapprehension of the trial judge's reasons. The trial judge made extensive findings of fact. In the end, she did not believe Mrs. Nelitz's testimony that Dr. Dyck performed the CFCT-like test. She also did not disbelieve Dr. Dyck's denial that he performed the test. Accordingly, the appellants had failed to show that the CFCT was performed. Put another way, the trial judge could not find that the test had been performed. The burden of proof being on the appellants, the claim failed.
[25] The appellants also submit that the trial judge misdirected herself concerning causation. They argue that the trial judge accepted that Mrs. Nelitz experienced a constellation of symptoms following the January 11 examination and there was no burden on the appellants to show the precise scientific explanation for Mrs. Nelitz's injury, whether it was VBI or something else. The appellants submit that the trial judge erred, in particular, when she held that she had to be persuaded on a balance of probabilities that Dr. Spence's diagnosis of VBI "was the only possible explanation" for Mrs. Nelitz's symptoms. They rely upon Snell v. Farrell and Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In the latter case at p. 467 S.C.R., p. 239 D.L.R., Major J. held as follows:
It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts, 8th ed. (Sydney: Law Book Co., 1992) at p. 193), a "fire ignited in a wastepaper basket is . . . caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth". As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
(Emphasis added)
[26] However, as the trial judge correctly recognized, there is an important distinction between this case and the decisions in Snell and Athey. In Snell, the trial judge found that the physician had been negligent in performing eye surgery. The issue in the Supreme Court of Canada was whether the plaintiff had proved that the loss of sight to the eye was due to the defendant's negligence. Similarly, in Athey, the defendant motorists were admittedly negligent and again the only issue was causation. In both cases, there was no doubt that the defendants' tortious conduct could have caused the injuries. The defendants argued, however, that there were other factors that caused or contributed to the injuries.
[27] In this case, leaving aside whether the examination was tortious in and of itself because of lack of consent, there was a fundamental dispute as to whether Dr. Dyck did anything that could have caused the symptoms suffered by Mrs. Nelitz. All of the evidence, including the appellants' evidence, was that aside from the CFCT-type procedure, there was nothing in the examination as described by Dr. Dyck that could have caused the symptoms complained of. Accordingly, the case focused on the one unusual aspect of the examination as complained of by Mrs. Nelitz, the forceful application of pressure to the top of her head. If the appellants could not prove that Dr. Dyck had committed this act, the examination was unremarkable and could not have been the cause of the constellation of symptoms that occurred at the same time as the examination.
[28] The doctrines set out in the Snell and Athey cases would have been important only if the trial judge had found that Dr. Dyck performed the act complained of, and a question then arose as to the contribution of Mrs. Nelitz's pre-existing conditions. At that point it would have been necessary for the trial judge to apply the holding from Athey set out above. The case, however, never made it that far. The trial judge's references to the expert evidence must be seen in that light. Since she was unconvinced by the testimony of Mrs. Nelitz that Dr. Dyck had performed the CFCT, she examined the expert evidence to determine whether it could establish that Dr. Dyck must have performed that procedure. The expert evidence manifestly did not do so.
[29] To conclude, the central issue in the case was whether Dr. Dyck performed a CFCT-like procedure. The appellants claimed that it was this improper procedure that led to the deterioration in Mrs. Nelitz's health. It was this act that was the basis for the large damage award sought by the appellants. In my view, the trial judge did not err in concluding that the appellants had failed to prove Dr. Dyck committed this act. Accordingly, the primary basis for the battery claim failed. I will now turn to the grounds of appeal based on the simple theory that the examination, even if conducted properly, was a battery because Mrs. Nelitz did not give a valid consent.
(2) Dr. Dyck's defence of consent
[30] As indicated, the trial judge found that Mrs. Nelitz had consented to the examination by Dr. Dyck. She relied upon the following passage from Linden, Canadian Tort Law, op. cit., at p. 66:
A valid consent can be given without uttering a word. For example, a person standing in a line of people being vaccinated and holding up an arm to be inoculated has indicated consent by behaviour. Unexpressed private feelings if not communicated do not govern, whereas the objective manifestation of consent does. When people reasonably rely on such conduct by plaintiffs, they must be protected from tort liability.
[31] A similar view is expressed in W. L. Prosser, Handbook of the Law of Torts, 4th ed. (St. Paul, Minn.: West Publishing Co., 1971) at p. 101:
The defendant is entitled to rely upon what any reasonable man would understand from the plaintiff's conduct. If the plaintiff expressly says, "It's all right with me," he will of course not be permitted to deny that he did consent. By the same token, if he holds up his arm without objection to be vaccinated, he will not be heard to deny that he has consented after the defendant has relied upon his action.
(Emphasis added)
[32] In my view, this principle applies in the circumstances of this case in respect to the allegation of battery against Dr. Dyck based solely on the examination. As found by the trial judge, he reasonably relied upon the fact that Mrs. Nelitz appeared for the examination and did not express any lack of consent. The circumstances were like that of the example used by the authors of a person standing in line for a vaccination and holding up her arm to be inoculated. The evidence of all of the experts who testified at the trial was that they did not obtain written consent from the patient before conducting an independent medical examination. They relied upon the patient's apparently voluntary attendance for the examination. I agree with Linden and Prosser that a physician in the place of Dr. Dyck should be protected from liability for battery. Even if Mrs. Nelitz did not consent to the examination because of the misrepresentation by Gore, Dr. Dyck was, in effect, an innocent agent.
(3) Corporate liability for battery
[33] In my view, the trial judge erred in finding that Gore could not be liable for battery because it was a corporation. While a corporation cannot itself commit battery, because it cannot physically touch an individual, in my view, it can be liable for battery directly by using an individual to commit the act, or vicariously for acts committed by an employee or agent within the scope of his or her authority. The trial judge considered only vicarious liability and dismissed the claim because Dr. Dyck was an independent contractor. However, if Mrs. Nelitz did not consent to the examination, Gore could be liable directly for battery because it expressly retained Dr. Dyck to commit the tort. There is no question that this form of liability was pleaded by the plaintiffs. In the statement of claim, the plaintiffs alleged that Gore, "actively participated in the battery by encouraging or forcing Pauline Nelitz to undergo treatment by the Defendant, Dyck". Subject to the question of consent, there is also no doubt that Gore used Dr. Dyck to commit the alleged battery. Gore contacted Dr. Dyck, made the appointment and instructed Mrs. Nelitz to attend for the examination.
[34] It is therefore necessary to consider whether Mrs. Nelitz consented to the examination. Gore had the burden of proving consent. The trial judge found the following:
(1) Gore had no legal right to compel its insured, Mrs. Nelitz, to attend for the examination.
(2) Gore did not tell its insured that she had the right to refuse to attend.
(3) The letter had a "coercive tone".
[35] The trial judge also appears to have accepted Mrs. Nelitz's evidence that she believed that if she did not attend for the examination, Gore would stop paying for Dr. Stackhouse's treatments, treatments that were very important to her. Nevertheless, I am satisfied that consent was made out.
[36] La Forest J. defined consent for the purposes of the tort of battery in Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, 92 D.L.R. (4th) 449. La Forest J. first considered the traditional definition of consent at p. 246 S.C.R., p. 457 D.L.R.:
The alleged sexual assault in this case falls under the tort of battery. A battery is the intentional infliction of unlawful force on another person. Consent, express or implied, is a defence to battery. Failure to resist or protest is an indication of consent "if a reasonable person who is aware of the consequences and capable of protest or resistance would voice his objection": see John G. Fleming, The Law of Torts, 7th ed. (Sydney: Law Book Co., 1987), at pp. 72-73. However, the consent must be genuine; it must not be obtained by force or threat of force or be given under the influence of drugs. Consent may also be vitiated by fraud or deceit as to the nature of the defendant's conduct. The courts below considered these to be the only factors that would vitiate consent.
(Emphasis added)
[37] The conduct of Mrs. Nelitz falls within this definition. After receiving the December 7, 1994 letter, she had over a month to voice any objection to attending the examination. During this period she saw her own chiropractor. She could easily have spoken to someone at Gore or sought legal advice. Her failure to resist or protest was an indication of implied consent. There was no force or threat of force, nor any fraud or deceit as to the nature of Gore's conduct. The failure to disclose to Mrs. Nelitz that she was not legally required to attend the examination is not deceit sufficient to vitiate consent. See Linden, Canadian Tort Law, op. cit., at p. 69.
[38] Accordingly, consent was made out under the traditional definition of consent. However, La Forest J. went on to consider consent in cases where there is an inequality in the relationship. He held as follows at pp. 246-47 S.C.R., p. 457 D.L.R.:
In my view, this approach to consent in this kind of case is too limited. As R.F.V. Heuston and R.A. Buckley, eds., Salmond and Heuston on the Law of Torts, 19th ed. (London: Sweet & Maxwell, 1987), at pp. 564-65, put it: "A man cannot be said to be 'willing' unless he is in a position to choose freely; and freedom of choice predicates the absence from his mind of any feeling of constraint interfering with the freedom of his will." A "feeling of constraint" so as to "interfere with the freedom of a person's will" can arise in a number of situations not involving force, threats of force, fraud or incapacity. The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of cons ent must, therefore, be modified to appreciate the power relationship between the parties.
(Emphasis added)
[39] La Forest J. then considered the circumstances in which a position of relative weakness can mean that there has been no effective consent. He held that there is a two-part test which he summarized at p. 256 S.C.R., p. 464 D.L.R.:
The first step is undoubtedly proof of an inequality between the parties which, as already noted, will ordinarily occur within the context of a special "power dependency" relationship. The second step, I suggest, is proof of exploitation. A consideration of the type of relationship at issue may provide a strong indication of exploitation. Community standards of conduct may also be of some assistance. . . . If the type of sexual relationship at issue is one that is sufficiently divergent from community standards of conduct, this may alert the court to the possibility of exploitation.
(Emphasis added)
[40] While I have considerable doubt that there was the type of special power dependency relationship discussed in Norberg, I am prepared to assume that the first step was made out since Mrs. Nelitz was dependent on Gore to continue to pay for her treatments that she believed necessary. However, there is no proof of exploitation of the relationship. Whatever Mrs. Nelitz may have taken from the December 7 letter, Gore did not threaten to cut off any benefits to Mrs. Nelitz if she failed to attend the examination. The only aspect of the letter that suggests any kind of exploitation is what the trial judge referred to as the "coercive tone" from this paragraph:
Should you not be able to attend for the scheduled appointment we would ask that you telephone Dr. Dyck's office directly and make alternate arrangements. Should you fail to attend this appointment, any fee charged by the doctor's office for the missed appointment will be your responsibility.
[41] This paragraph is familiar to anyone who has dealt with health professionals. It warns the patient that she will be responsible for the missed appointment fee. As La Forest J. held in Norberg, community standards of conduct might be of some assistance. This kind of language is not enough to show exploitation.
[42] Accordingly, Gore proved consent and the claim based on battery was properly dismissed.
(4) Breach of duty of good faith by Gore
[43] The trial judge fully reviewed the relationship between Gore and Mrs. Nelitz and concluded that there was no breach of duty of good faith. The appellants have not pointed to any error of law or any misapprehension of the facts. I would not interfere with the trial judge's finding.
(5) Damages
[44] In view of my conclusion that the actions were properly dismissed, there is no need to consider the trial judge's assessment of damages.
(6) Costs
[45] The appellants sought leave to appeal the costs order. At trial, the appellants sought an order that each party bear its own costs. The trial judge considered all the relevant circumstances and held that the defendants should have their party-and-party costs. The appellants have not pointed to any error in principle by the trial judge in the exercise of her discretion. There is no basis for interfering with the costs award.
Disposition
[46] Accordingly, I would dismiss the appeal with costs.
Appeal dismissed.