Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470

CITATION: Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470

DATE: 20100630

DOCKET: C49087

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Armstrong JJ.A.

BETWEEN

Darcy Berthiaume-Palmer, personally and in her capacity as Estate Trustee of The Estate of Dave Ignatius Palmer, and Maxwell Palmer and Mia Palmer, by their litigation guardian Darcy Berthiaume-Palmer, Cheryl Palmer and Edith Martin

Plaintiffs (Appellants)

and

Dr. Bjug Borgundvaag

Defendant (Respondent)

Ronald D. Manes and Duncan Embury, for the appellants

Michael E. Royce and Naomi D. Loewith, for the respondent

Heard: February 2, 2010

On appeal from the judgment of Justice Randall S. Echlin of the Superior Court of Justice, dated June 26, 2008.

By the Court:

[1] Dave Palmer died of cardiac arrest secondary to a bowel obstruction. His estate and family members allege that the respondent, an emergency room physician, was negligent in failing to diagnose a bowel obstruction and in discharging him from the hospital the day before he died. Following an eleven-day jury trial, the jury returned a verdict in favour of the respondent finding that there was no negligence on his part. The appellants submit that the trial judge erred by failing to provide an adequate jury instruction. In particular, the appellants argue that the trial judge failed to provide the jury with adequate guidance on the critical factual issues to be determined.

FACTS

[2] On the evening of June 26, 2005, Mr. Palmer, attended by his sister, was taken by ambulance to the emergency department at Mount Sinai Hospital. He was seen by the triage nurse and then the emergency room nurse at 12:20 am, June 27, before being assessed by the respondent at 2:15 am. He received IV fluids for dehydration and was discharged by the respondent at 5:45 am on June 27. In the late evening hours of June 27, Mr. Palmer complained of shortness of breath and dizziness, began to vomit and died of cardiac arrest subsequently determined to be secondary to a bowel obstruction.

[3] Some six months earlier, Mr. Palmer had undergone colon resection surgery following a diagnosis of stage 2 colon cancer. He underwent a complete course of chemotherapy following surgery and experienced nausea, diarrhoea and fatigue. He had stopped taking the chemotherapy drugs one week prior to his death.

[4] The crucial and decisive issue at trial essentially involved resolving the contested versions offered by the parties as to Mr. Palmer’s condition and symptoms both at the time he was admitted to the emergency department and at the time he was discharged. The appellants relied on the evidence of Mr. Palmer’s sister, who was with him at the hospital. The appellants assert that evidence showed that the respondent knew or should have known that Mr. Palmer exhibited symptoms of a possible bowel obstruction and that the respondent was negligent in failing to conduct further investigation. In particular, the appellants contend that the respondent knew or should have known that Mr. Palmer’s clinical picture included vomiting and severe abdominal pain of recent onset.

[5] The respondent denied that Mr. Palmer and his sister had provided him with the information that would have led to a diagnosis of bowel obstruction. He acknowledged that if he had been told what the appellants say he was told, he should have altered his differential diagnosis and conducted further investigation as to a possible bowel obstruction. In particular, the respondent submits that, despite his own admission to the contrary on discovery, in the end there was no evidence of vomiting, a common symptom of bowel obstruction. He testified that he attributed Mr. Palmer’s complaints in part to the problems he was having with chemotherapy and that he discharged Mr. Palmer because he appeared to be improving, his abdominal pain was subsiding and he wanted to go home. Some entries in the hospital records tend to support the appellants’ position while others support that of the respondent.

[6] While the parties presented conflicting expert evidence as to whether the respondent had met the applicable standard of care, at the end of the day, the case turned on what the respondent knew or should have known about Mr. Palmer’s clinical condition.

ISSUE

[7] While the appellants advanced a number of arguments in their factum, during oral submissions the issue arising on this appeal was narrowed to whether the trial judge provided the jury with an adequate instruction in relation to the legal and, more significantly, the factual issues to be resolved.

ANALYSIS

[8] The appellants served a jury notice and thereby elected to have a jury determine any and all contested issues of fact. Before us, counsel for the respondent frankly conceded that this was a case that could have gone either way. While the appellants assert in their factum that the verdict was unreasonable, that submission quite properly was not pursued in oral argument as there was evidence which, if accepted by the jury, would support the verdict.

[9] It is common ground that on each of the crucial factual issues, there was some evidence supporting the appellants’ position and that there was also some competing evidence supporting that of the respondent. It is well-established that it is not open to an appellate court to retry the case or to substitute its opinion on the facts for the findings of the jury. As our role is not to retry the case or to substitute our opinion of the evidence for that of the jury, we do not propose to review the evidence in detail. Our role is limited to the question of whether the jury was properly instructed in law and, accordingly, it is upon that question that we focus our analysis.

[10] The trial judge provided the jury with what amounted to a standard instruction on the law, which included a correct explanation of the legal test to be applied in a case of alleged medical malpractice. The trial judge did not, however, review the evidence or identify issues of fact arising from the evidence, except in general terms. The appellants assert that the trial judge’s failure to review the evidence amounted to an error of law resulting in a miscarriage of justice within the meaning of s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”), so as to require a new trial.

[11] The trial judge conducted a pre-charge conference with counsel to review his draft instructions. The appellants’ trial counsel indicated that both he and counsel for the respondent felt that the jury might need a bit more guidance than was set out in the draft charge with respect to the factual issues to be determined. The trial judge stated that he had not reviewed the facts because both counsel had done “such a marvellous job in going into detail” in their closing addresses to the jury. He observed, however, that if counsel could agree on something he would consider including it. There the matter rested. The trial judge instructed the jury in terms of the draft charge and no further issue was taken with his treatment of the facts.

[12] Ordinarily, a trial judge should provide the jury with an outline of the evidence with a view to assisting it on the factual issues to be determined, and nothing in these reasons should be read as being intended to discourage that practice or to support some other practice. That said, we are not persuaded that, in the circumstances of this case, the trial judge erred in approaching his instructions in the manner that he did or that his failure to review the evidence resulted in a miscarriage of justice.

[13] As we have explained, the respondent essentially admitted that if he had known what the appellants contended he knew about Mr. Palmer’s symptoms and medical condition, he should have taken further steps to investigate the possibility of a bowel obstruction. The respondent gave one version of the facts and the appellants offered a different version. At the end of the day, the entire case turned on whether the jury accepted what the appellants alleged the respondent knew or should have known about Mr. Palmer’s symptoms and condition when he first examined him that night in the emergency room, and when he finally discharged him early in the morning. That issue was thoroughly canvassed in the evidence and, as the trial judge observed, the competing evidence was thoroughly reviewed by counsel in their very effective closing addresses. We are satisfied that the trial judge rightly perceived that the crucial factual issues dividing the parties and that the jury needed to decide had been clearly identified and joined. Simply put, we are satisfied that the jury could have been under no misapprehension as to the issues they had to decide or as to the evidence that bore upon those questions.

[14] We know of no authority laying down the rule that, in a civil jury trial, the judge is inevitably required to review the facts. Nor were we given any authority for the proposition that the failure of the trial judge to review the facts necessarily requires this court to order a new trial. Rather, the jurisprudence lends support to the position of the respondent that no new trial should be ordered in this case.

[15] We take the functional approach as the applicable analytical framework for the assessment of the adequacy of a jury instruction, as set out in the following terms by this court in R. v. Pomeroy (2008), 2008 ONCA 521, 91 O.R. (3d) 261, at paras. 116-117:

Appellate courts must adopt a functional approach to reviewing jury charges. The purpose of such review is to ensure that juries are properly -- not perfectly -- instructed. In conducting an appellate review, the Supreme Court emphasizes in Daley, [2007 SCC 53, [2007] 3 S.C.R. 523] at para. 57:

The extent to which the evidence must be reviewed “will depend on each particular case. The test is one of fairness. The accused is entitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”. [Citations omitted.]

The functional approach also requires the appellate court not to divorce the jury charge from the greater context of the trial. The comments of counsel during their addresses, including comments on legal issues should also be considered in assessing whether the charge is adequate: see Daley, at para. 58. Here, despite its facial imbalance, the trial judge’s charge to the jury, when considered together with the closing addresses of counsel, provided the jury with an appreciation of the factual issues to be resolved, the evidence relating to the issues, the proper law to be applied and the positions of the parties.

[16] Applying that functional approach, when reading this record as a whole, we are satisfied that the jury was provided with adequate explanation of the factual issues it was to resolve, the evidence that related to those issues, the proper law to be applied, and the positions of the parties.

[17] We are directed by s. 134 (6) of the Act not to order a new trial unless the error resulted in a “substantial wrong or miscarriage of justice”. In Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co., (2006), 2006 CanLII 12284 (ON CA), 209 O.A.C. 127, at para. 75, this court stated that, even where the trial judge misdirects the jury, “it will generally not be sufficient for an appellant to demonstrate simply that it was open to the jury on the evidence to reach a different result. Something more than that is required.” Pereira goes on to describe, at paras. 75-76, what that “something more” might be, laying out three possibilities that “[a]n appellant may demonstrate”: 1) “that the case was not fairly put to the jury, as, for example, where the charge leaves the jury with a misapprehension as to the applicable legal principles”; 2) “that the charge was “materially deficient”; or 3) “that the law was not clearly stated on a critical issue”. This statement was approved by the Supreme Court of Canada in Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at para. 43.

[18] There is no suggestion that the trial judge’s charge was unbalanced or unfair, or that the evidence was misstated. The trial judge accurately described his approach in the pre-trial conference before giving the parties his draft charge: “I take a hands-off position. I don’t try to put my hands on the scale ... [i]t’s their decision and, if I can point them in the general direction then, it’s their call”. Nor is there any suggestion that the law was not accurately stated.

[19] The issue is whether the charge was “materially deficient”. The cases considering that issue essentially adopt the functional approach set out above and have refused to order a new trial where the deficiency in the charge is a failure to review the evidence without more. In Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722, at para. 68, this court decided that the charge was not materially deficient despite the failure to review the testimony and evidence relating to the material issues, because the charge “got the job done” and did not “give rise to a serious concern as to whether the appellant received a fair trial.” Writing for the court, Cronk J.A. noted the following, at paras. 63-64:

• the case “was relatively straightforward”, as the expert evidence “was not overly complex”, the parties’ positions were “uncomplicated” and “the medical issues were clear”;

• “the expert evidence was reviewed by counsel for the parties in their respective closing addresses” and “[t]he jury charge was delivered shortly thereafter”; and

• the judge explained the “key” factual issue to be resolved.

[20] Similarly, in Caza v. Casselman et al. (2003), 2003 CanLII 39169 (ON CA), 172 O.A.C. 388 (C.A.), the court noted, at para. 34, that the “question is whether the errors, which may include omissions, deprived the party of a fair trial.” It confirmed the context-specific analysis to determine fairness in the following fashion: “[A]n appeal court should look at the charge in the context of the entire trial and ask if the jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law and the positions of the parties”, and only order a new trial “when the appeal court is satisfied that the trial judge’s errors have caused a substantial wrong or miscarriage of justice.” Looking to the “context of the entire trial”, the court further noted, at paras. 35-37:

• “[t]his was not a particularly difficult trial”;

• “[t]he issues on liability were straightforward”;

• “the evidence was not complicated. The conflict between the respondent’s and the appellant’s evidence was apparent and easily understood. The difference in the parties’ positions as to what caused the respondent’s injury was also clear.”; and

• Moreover, counsel “clearly set out the issues, their positions and the evidence relied upon in support of those positions” in their closing addresses.

[21] In our view, the circumstances described in these passages have equal application to the present case. While we can certainly understand the appellants’ disappointment with the jury’s verdict, on the basis of the law that we must apply, we conclude that there is no error that would justify this court in ordering a new trial.

DISPOSITION

[22] Accordingly, the appeal is dismissed. The respondent is entitled to costs, but only if demanded, fixed at $15,000 inclusive of GST and disbursements.

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

RELEASED: June 30, 2010