COURT OF APPEAL FOR ONTARIO DATE: 20210212 DOCKET: C67511

van Rensburg, Hourigan and Brown JJ.A.

BETWEEN

Penny-Lee Champoux Plaintiff (Appellant)

and

Ljudmilla Jefremova and Mohammed Khodabandehloo Defendants (Respondent)

Counsel: Geoffrey Adair and Peter Denton, for the appellant Graham Ragan and Katie Ahn, for the respondent

Heard: November 19, 2020, by video conference

On appeal from the judgment of Justice James A. S. Wilcox of the Superior Court of Justice, dated September 4, 2019, with reasons reported at 2019 ONSC 5143.

Hourigan J.A.:

I. Introduction

[1] This is an appeal of the dismissal of a medical malpractice claim. The trial’s focus was whether the respondent, Ljudmilla Jefremova, breached the standard of care of a reasonable and prudent doctor when she treated Penny-Lee Champoux. The trial judge found that Dr. Jefremova met that standard of care and dismissed the claim in its entirety.

[2] Two issues are raised on the appeal: (i) whether the trial judge’s reasons are insufficient to permit appellate review; and (ii) whether the trial judge erred in his consideration of a Response to Request to Admit filed by counsel for Dr. Jefremova.

[3] As will be explained below, I have concluded that the judgment must be set aside and a new trial ordered. I accept the argument advanced by Ms. Champoux that the trial judge failed in his reasons to analyze essential components of her theory of liability and explain why he found that Dr. Jefremova did not breach the standard of care. Consequently, the trial judge’s reasons do not permit appellate review. Regarding the analysis of the Response to Request to Admit, the trial judge issued contradictory reasons about the central issue of whether it constituted an accurate admission. This resulted in an unfair trial for Ms. Champoux and also warrants a new trial.

II. FACTS

[4] Given that I would order a new trial, only a brief recitation of the facts is necessary to put the grounds of appeal in context.

[5] Ms. Champoux attended Kirkland Lake Hospital’s emergency department on June 29, 2012, intending to seek treatment for an abscess on her buttocks area and hyperglycemia, as she could not get her high blood sugars under control. She has various underlying health problems, including diabetes, PTSD, and fibromyalgia. At the emergency department, a nurse triaged Ms. Champoux, took her vital signs and did a blood sugar reading.

[6] Dr. Jefremova then examined Ms. Champoux and noted that her heart rate was elevated and that her blood sugar level was 11.6. However, prior hospital records indicated that Ms. Champoux’s heart rate was always elevated without cardiac issues and that her normal glucose level was between 8 and 12.5. Dr. Jefremova assessed the abscess, decided it was not yet ready to break, and sent Ms. Champoux home.

[7] Ms. Champoux returned to the emergency department on July 2, 2012, because her abscess had grown rapidly, and her blood sugar was higher. She was admitted for surgery to drain the abscess and discharged on July 13, 2012. Ms. Champoux was re-admitted to the hospital several times afterward to deal with abscess drainage.

[8] Ms. Champoux brought a medical malpractice action against Dr. Jefremova and Dr. Mohammed Khodabandehloo, who had given her a cortisone shot on June 19, 2012. However, the action against Dr. Khodabandehloo was dismissed before trial.

[9] In his reasons for decision, the trial judge reviewed the evidence of Ms. Champoux, her mother-in-law, Dr. Jefremova, and two experts (Dr. Fernandes, who testified for Ms. Champoux, and Dr. McMurray, who testified for Dr. Jefremova), and documents related to the medical events. The evidence focused on whether Dr. Jefremova breached the standard of care of a reasonable and prudent doctor in her treatment of Ms. Champoux on June 29, 2012.

[10] The location of the abscess was an important issue because the standard of care differs based on whether the abscess was a simple buttocks abscess, as opposed to a perianal, ischiorectal, or anorectal abscess. On the issue of the location of the abscess, a Request to Admit served by Ms. Champoux’s counsel became significant at trial. It was served on Dr. Jefremova’s counsel on September 19, 2018. Among other things, Ms. Champoux requested that Dr. Jefremova admit that “[o]n June 29, 2012, Penny Lee Champoux had a perianal abscess.”

[11] On October 9, 2018, a Response to Request to Admit was delivered by counsel for Dr. Jefremova. Among other refusals, Dr. Jefremova’s counsel refused to admit that “[o]n June 29, 2012, Penny Lee Champoux had a perianal abscess”. In the reason for this refusal, Dr. Jefremova’s counsel stated that “[o]n June 29, 2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area.”

[12] At trial, Ms. Champoux’s counsel closed his case on December 12, 2018, without referring to the Request to Admit. It was entered as exhibit 9 on December 14, 2018, as part of a package that included the Request to Admit, the Response to Request to Admit, and a document entitled “Admissions Made by the Defendant Jefromova” [sic].

[13] Dr. McMurray’s evidence in chief was that Ms. Champoux suffered from a simple buttock abscess and that Dr. Jefremova had met the standard of care. In cross-examination, Ms. Champoux’s counsel put to Dr. McMurray that Dr. Jefremova had formally admitted that “on June 29 the abscess was in the general perianal area or region”. Dr. McMurray opined that if it was clearly a perianal abscess or in the perianal region, Ms. Champoux should not have been sent home and the abscess should have been incised and drained right away by the emergency room physician or a surgeon.

[14] On December 15, 2018, Dr. Jefremova’s counsel wrote to Ms. Champoux’s counsel to advise that the Response to Request to Admit had left her office through inadvertence and without Dr. Jefremova’s instructions, and to request consent to withdrawal of the admission. By email dated December 16, 2018, Ms. Champoux’s counsel advised that his client would not consent to the withdrawal of the admission.

[15] Dr. Jefremova brought a motion seeking to clarify or, in the alternative, withdraw the admission contained in the Response to Request to Admit. In written reasons, the trial judge dismissed the motion to withdraw the admission. He also found that it was inappropriate at that point in the proceeding to rule on the interpretation to be given to the Response to Request to Admit. Instead, he held that the interpretation of the admission was best left for consideration after final submissions.

[16] In his reasons for decision, the trial judge considered all of the evidence and found that on June 29, 2012, Ms. Champoux had presented with an abscess located near the middle of the left buttock cheek. He concluded that Dr. Jefremova had met the standard of care based on the location of the abscess. The trial judge did not go on to consider the issues of causation or damages. The action was dismissed.

III. ANALYSIS

[17] As noted, Ms. Champoux makes two arguments on this appeal. The first is that the trial judge provided insufficient reasons. The second is that the trial judge erred in disregarding Dr. Jefremova’s formal admission in determining the location of the abscess on June 29, 2012. These arguments will be considered in turn below.

(a) Insufficient Reasons

[18] The law regarding insufficient reasons is well established. Reasons serve many functions, they: (i) justify and explain the result; (ii) tell the losing party why they lost; (iii) provide public accountability and satisfy the public that justice has been done and is seen to have been done; and (iv), permit effective appellate review: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98. Meaningful appellate review is precluded if the decision of the court below does not provide some insight into how the legal conclusion was reached and what facts were relied on in reaching that conclusion: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 63.

[19] When reasons do not fulfill one or more of their functions, it may be necessary for the appellate court to send the matter back to the court below for a new hearing. This is hardly a desirable result, given the wasted costs of the first hearing and the delay in having the case determined on the merits. Yet sometimes, this rather drastic result is necessary to protect the judicial system’s integrity.

[20] As this court observed in Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, 34 C.P.C. (8th) 144, at para. 93, leave to appeal refused, [2019] S.C.C.A. No. 228, the insufficient reasons ground of appeal appears with such frequency in this court that it is fast becoming a boilerplate ground of appeal. The court cautioned that the ground of appeal was being asserted in cases where there was no reasonable basis for arguing that the reasons for decision of the court below were anything other than straightforward. This is not such a case. Instead, this is a situation where the parties and the court are left to speculate on how the trial judge reached his conclusion on critical issues.

[21] The trial judge spent much of his reasons summarizing the evidence of the witnesses who testified at trial. This approach to writing reasons is often problematic. There is nothing impermissible in writing reasons this way, and it is important to capture the evidence adduced at trial. However, it is worth emphasizing that a detailed factual recitation is not a substitute for a considered analysis of the issues. What frequently happens when reasons begin with a very detailed recitation of the evidence is that when it comes time to grapple with the issues in the case, the analysis is largely conclusory. This was what happened in the case at bar.

[22] In his reasons, the trial judge concluded that the abscess was located near the middle of the plaintiff’s left buttock cheek. He then went on to comment on the expert evidence at paras. 139-140:

I was favourably impressed with Dr. McMurray’s evidence and prefer it to Dr. Fernandes’s. Meaning no disrespect to Dr. Fernandes who has impressive credentials, as noted above, I found Dr. McMurray’s experience to be more closely related to the situation in this case. Also, I was impressed with the apparent practicality of his approach to scenarios such as the defendant was confronted with on June 29, 2012, as compared to what I saw to be the more academic approach of Dr. Fernandes. Furthermore, I find that Dr. McMurray’s initial opinion was based on the facts as found, specifically about the location of the abscess when the defendant, Dr. Jefremova, saw it on June 29, 2012.

Consequently, I am not persuaded that the defendant Dr. Jefremova failed to meet the standard of care on June 29, 2012 and would dismiss the claim against her.

[23] As in most medical malpractice cases, the expert evidence was of significant importance. There were several areas where the experts disagreed. The trial judge was obliged to explain in some level of detail why he preferred the evidence of Dr. McMurray over Dr. Fernandes. Expressing a general preference based on a statement that he found “Dr. McMurray’s experience to be more closely related to the situation in this case” does not suffice. Nor does a reference to Dr. McMurray’s approach being more practical. The trial judge was obliged to weigh in on important issues, including, but not limited to:

• Was the standard of care breached when Ms. Champoux was sent home without Dr. Jefremova knowing why her heart rate was elevated and her blood sugars uncontrolled?
• Was Dr. Fernandes correct in his criticism of Dr. Jefremova when he said that she failed to undertake appropriate testing of Ms. Champoux?
• Was Dr. Fernandes correct when he opined that the standard for all abscesses is immediate incision or drainage once they are diagnosed?
• Was Dr. McMurray correct when he testified that there were two abscesses, one on the buttocks and an ischiorectal one that was discovered during surgery?
• Why was Dr. McMurray’s experience considered more applicable to the case at bar when he testified that he had never aspirated an abscess or seen it performed?
• Was the standard of care breached by Dr. Jefremova in delaying treatment?

[24] Given the failure to consider these and other key issues, the trial judge’s reasons are not amenable to appellate review. Understandably, Ms. Champoux complains that the trial judge failed to engage with the crux of the case before him and, accordingly, she is unable to understand why her claim was dismissed. As an appellate court, we are also left in the dark about how the trial judge dealt with these critical issues. For this reason, I would order a new trial.

(b) Withdrawal of Admission

[25] I would also order a new trial as a result of the trial judge’s treatment of the admission in the Response to Request to Admit. His analysis resulted in an unfair trial for Ms. Champoux.

[26] Before considering the trial judge’s analysis, I would reject Dr. Jefremova’s argument on appeal that the impugned admission in the Response to Request to Admit was not a formal admission because it was proffered in the context of a refusal. The purpose of request to admit procedures — to save time and costs by narrowing the facts in issue — would be undercut if litigants could deny a fact in a Request to Admit on the basis that an alternative set of facts is accurate, but then treat those proffered alternative facts as non-binding. That approach would obfuscate rather than clarify what facts are in issue. Further, Dr. Jefremova’s counsel brought a motion to withdraw the admission after seeking Ms. Champoux’s consent to the withdrawal, indicating that all parties viewed the response as a formal admission.

[27] Turning to the trial judge’s analysis, in the written reasons on the motion to withdraw the admission, the trial judge stated at para. 26:

I am not persuaded that it is appropriate at this point in the proceeding to rule on the interpretation to be given to the Response to Request to Admit. Rather, that evidence would be left for consideration after the trial submissions have been heard, if the admission still existed then. Consequently, it is necessary in the circumstances to consider the request to withdraw the admission. For this, I turn to the applicable test.

[28] The trial judge then went on to apply the test from Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.), as recently endorsed in Liu v. The Personal Insurance Company, 2019 ONCA 104, 89 C.C.L.I. (5th) 195, at para. 13. That test directs courts to first consider whether the admission is one purely of fact, law, or mixed fact and law (since questions of law can be more easily withdrawn than questions of fact), and then apply a three-part conjunctive test regarding when an admission could be withdrawn, being:

(a) Does the proposed amendment raise a triable issue in respect to the truth of the admission?; (b) Is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?; and, (c) Has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?

[29] The trial judge found that the admission was one of pure fact. His analysis of the triable issue factor was as follows, at para. 29:

On the second branch, this is a medical malpractice case. The result depends on the standard of care that applies in the circumstances. Insofar as an abscess is concerned, what the standard is depends on its location and its type. The interpretation of the Response to Request to Admit is integral to determining these. The defence submitted that the admission is not incorrect, but is being misinterpreted. As I stated above, the interpretation of the admission is to be left to follow trial submissions. Therefore, I find no triable issue with respect to the truth of the admission, as contrasted with its interpretation.

[30] The trial judge noted that the test for a withdrawal of an admission was conjunctive. Therefore, he found that Dr. Jefremova had not met her onus for the withdrawal of an admission. He dismissed the motion for leave to withdraw the admission.

[31] In his reasons for decision on the trial, the trial judge reviewed the evidence regarding the location of the abscess and concluded, at para. 125, “it is asking too much in seeking to have that imprecise expression [in the Response to Request to Admit] accepted as proof on the balance of probabilities that the plaintiff presented to the ER with anything more serious than an abscess on her buttocks.”

[32] I note that nowhere in his reasons on the motion or reasons for judgment does the trial judge consider the document in exhibit 9 wherein the admissions made by Dr. Jefremova are listed. Among those admissions is the following: “On June 29, 2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area (response to fact 10).”

[33] The problem with the trial judge’s analysis is that he dismissed the motion to withdraw the admission on the basis that it was an admission of pure fact and that there was no triable issue with regard to its truth. However, in his analysis of the admission’s interpretation, he proceeded to effectively conduct an analysis of the truth of the admission. Thus, the reasons on the motion and the reasons on the trial were contradictory. In the first, he concluded that there was no triable issue regarding the truth of the admission and in the second, he undertook an analysis of whether the admission was true and found that it was not true.

[34] A trial judge has the freedom to interpret what an admission means: Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an analysis of the veracity of the admission. A formal admission is not like other pieces of evidence led at trial that a judge can weigh at their discretion. A formal admission is conclusive of the matter admitted. The court is bound to act on formal admissions before it, even if other evidence contradicts the admission: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106.

[35] In the case at bar, the trial judge weighed the admission against the other evidence led at trial and proceeded to effectively permit the withdrawal of the admission on the basis that it was not accurate. He did so despite his earlier finding that there was no triable issue in respect of the truth of the admission and his dismissal of the motion to withdraw the admission. In so doing, he ignored the issue of non-compensable prejudice to Ms. Champoux, who clearly based her trial strategy on the fact that she had this admission. In my view, his reasons effectively bypassed the rigorous test for the withdrawal of an admission and resulted in an unfair trial for Ms. Champoux. This trial unfairness requires an order for a new trial.

IV. Disposition

[36] For the foregoing reasons, I would set aside the trial judge's judgment and order a new trial.

[37] Regarding the costs of the first trial and the costs of the appeal, if no agreement can be reached, I would order that: Ms. Champoux serve and file her costs submissions, including a bill of costs, within 14 days of the issuance of these reasons, Dr. Jefremova serve and file her responding costs submissions, including a bill of costs, within 10 days of the receipt of Ms. Champoux's submissions, and any reply submissions be served and filed within 7 days of the receipt of the responding submissions.

Released: “K.M.v.R.” February 12, 2021

“C.W. Hourigan J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. David Brown J.A.”