Court of Appeal for Ontario

Date: 20220429 Docket: C68515

Judges: Doherty, Miller and Sossin JJ.A.

Between:

Sabrin Farej, an infant under the age of eighteen years by her Litigation Guardian Amara Idris, Amara Idris, personally and in her capacity as Estate Trustee of the Estate of Romodan Farej Plaintiffs (Appellants/Respondents by Cross-Appeal)

And:

George Fraser Fellows Defendant (Respondent/Appellant by Cross-Appeal)

And Between:

Murad Farej and Muntasir Farej, a minor by his Litigation Guardian Murad Farej Plaintiffs (Appellants/Respondents by Cross-Appeal)

And:

George Fraser Fellows Defendant (Respondent/Appellant by Cross-Appeal)

Counsel:

John J. Adair, Jordan V. Katz, Duncan Embury, Daniela M. Pacheco and Brandyn Di Domenico, for the appellants Peter W. Kryworuk and Jacob R.W. Damstra, for the respondent

Heard: In-writing

Reasons for Decision

[1] The appellants sued the respondent, alleging negligence in the delivery of Sabrin. The trial judge dismissed the action. In reasons released on March 29, 2022, this court allowed the appeal and directed a new trial on liability and damages: Farej v. Fellows, 2022 ONCA 254.

[2] After reviewing the court’s reasons, counsel for the respondent seeks an order limiting the scope of the new trial to the two specific issues decided in favour of the appellants.

[3] We accept that the parties, having had an opportunity to read the court’s reasons, are entitled to make submissions as to the appropriate terms of this court’s order. The court is not functus, as no order has issued, and s. 134(7) of the Courts of Justice Act at least arguably contemplates the kind of order sought by the respondent.

[4] We also accept that there is nothing in the position advanced by the respondent on the appeal which either forecloses the respondent from seeking the order he requests or puts the appellants at any disadvantage.

[5] We are not, however, disposed to limit the new trial. As we said in our reasons:

The evidence is complicated and the numerous issues are interrelated and interdependent.

[6] In our view, any attempt to examine a single event in isolation from the other events which occurred during the crucial 26 minutes after the respondent arrived in the delivery room would invite artificial and potentially inconsistent credibility assessments and ultimately unreliable fact-finding.

[7] The request to restrict the scope of the new trial is dismissed.

“Doherty J.A.” “B.W. Miller J.A.” “L. Sossin J.A.”