DATE: 20031208

DOCKET: C38637

COURT OF APPEAL FOR ONTARIO

RE:

MARY MIREMBE (Plaintiff/Appellant) – and – DR. LORNE M. TARSHIS, THE WELLESLEY HOSPITAL and SCHERING CANADA INC. (Defendant/Respondent)

BEFORE:

GOUDGE, MacPHERSON AND CRONK JJ.A.

COUNSEL:

Peter S. Carlisi

for the appellant

Jonathan C. Lisus and Thomas N. T. Sutton

for the respondent

HEARD:

December 1, 2003

On appeal from the judgment of Justice Susan Lang of the Superior Court of Justice dated July 2, 2002.

E N D O R S E M E N T

Released Orally December 1, 2003

[1] Counsel for the appellant advanced a number of attacks on the trial judgment. First, he challenges the credibility findings made by the trial judge, particularly in relation to Dr. Tarshis. Counsel says that the trial judge erred in accepting Dr. Tarshis’s reliance on his invariable practice to determine what he did in relation to the appellant. We see no error in this. It was open to the trial judge to accept this evidence particularly given that she found that Dr. Tarshis was generally credible, his evidence made sense and was, to some degree, supported by the documentation.

[2] Counsel also says that Dr. Tarshis’s evidence at trial that he found infection in and treated both ears should have been disbelieved because it was inconsistent with his evidence on discovery and had not been corrected prior to trial. The admissibility of Dr. Tarshis’s evidence was not objected to and although it troubled her, it was accepted by the trial judge. We did not see the witnesses at trial and can intervene only if we find palpable and overriding error. The trial judge explained why she accepted Dr. Tarshis’s evidence at trial and we can see no basis to interfere with her conclusion.

[3] Beyond these two matters, the trial judge’s findings of credibility were all carefully made and in each case well supported by the evidence. The findings against the appellant were made gently and with balance, often drawing on employment records and academic records as well as oral testimony. None of these findings bespeaks palpable error.

[4] Counsel’s second area of attack is on the trial judge’s findings relating to negligence. In essence, he says that the trial judge should have found that Dr. Tarshis breached his standard of care by failing to determine that ototoxicity was causing his patient’s problems by early in the summer of 1991 and certainly before August 13 when he prescribed Garasone for the second time.

[5] In our view, there was simply no expert evidence to support this conclusion. Rather, there was ample evidence that given the symptoms presented by the appellant, her recent history of infections in both ears and the unlikelihood that ototoxicity was causing her problems, Dr. Tarshis did not fall below the required standard of care in prescribing Garasone on August 13 and August 19, 1991.

[6] Counsel’s final area of attack is that of causation. He challenges the trial judge’s finding that the irreversible damage had been done by September 5, 1991 when the appellant was admitted to hospital. However, the appellant’s own expert confirmed this position. There was simply no evidence of any meaningful possibility of recovery as of September 5, 1991.

[7] Regrettably therefore, given the appellant’s medical condition, the appeal on liability must be dismissed.

[8] As to the costs awarded at trial, we think that the trial judge erred in not giving effect to the respondent’s change in explanation from discovery to trial. This change was on a significant issue. Moreover, the conduct of the respondent did attract negative comment at various points throughout the trial judgment. In our view, this as well warranted being reflected in the costs award. We would therefore grant leave to appeal the costs award at trial, set aside the costs award and substitute an order that awarded the respondent only his disbursements below together with G.S.T.

[9] We would not award any costs on the appeal.

“S.T. Goudge J.A.”

“J. C. MacPherson J.A.”

“E.A. Cronk J.A.”