COURT FILE NO.: 07-CV-341551-PD1

DATE: 20130801

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OLIVIA CONN and WILLIAM CONN, minors, by their Litigation Guardian, Shae Conn, SHAE CONN, personally, and BETH ROBSON

Plaintiffs

– and –

IAN DARCEL

Defendant

Paul Harte, Giuseppe Michelucci and Maria Damiano, for the Plaintiffs

William D. Black, Jeffrey E. Feiner and Andrew McCutcheon, for the defendant

HEARD: April 8, 9, 10, 11, 12, 15, 16, 17, 18 and 19, 2013

Stinson J.

1This is a medical malpractice case. It concerns the tragic and untimely death of Christopher Conn. He died suddenly, minutes after crossing the finish line of the half-marathon portion of the Toronto Marathon running race, on October 16, 2005. He was 36 years of age and left behind his wife and their two young children.

2The defendant Ian Darcel is a cardiologist. Mr. Conn was Dr. Darcel’s patient.

3As I will discuss in more detail below, it is common ground that Mr. Conn had a congenital problem with the aortic valve in his heart and that he was diagnosed early on with a condition known as aortic stenosis. It is also common ground that his death was due to this condition, combined with the exertion experienced by his heart as a result of participating in the half-marathon. At issue in this case is whether Dr. Darcel properly advised Mr. Conn about the seriousness of the level of risk in which he stood, and regarding an appropriate level of physical activity. The parties agreed in advance of trial on the amount of damages to be awarded to the plaintiffs if they are successful in establishing liability: $2.6 million.

4The proper determination of the issues raised will involve findings of fact and assessment of expert evidence.

facts

The parties

5The principal plaintiff is Mr. Conn’s widow, Shae Conn. They were married in 1997. The remaining plaintiffs are his children Olivia (born 1999) and William (born 2002) and his sister Beth Robson.

6Mr. Conn was employed by the Royal Bank of Canada where he had worked since he was 17 years old. He worked his way up from the branch level through various positions of responsibility. At the time of his death, he was a Senior Manager in anti-money laundering operations at RBC. He was on the management fast track program and was recognized (and remunerated) as a top performer. His career was demanding and at times required significant travel. He worked approximately 60 hours a week.

7Mr. Conn was the main breadwinner of the family. While he was a hard working individual, he was also a dedicated family man. He was devoted to his family and made an effort to set aside time to be with his children every day and on the weekend.

8Dr. Darcel is a community cardiologist. He graduated from medical school at the University of Toronto in 1982 and, after some initial training, received a fellowship in internal medicine in 1986 and a fellowship in cardiology in 1988, having done an extra year of training in echocardiography. In 1988, Dr. Darcel opened a cardiology practice in Burlington, Ontario where he was practicing at the time of his treatment of Mr. Conn and where he continues to practice today. Like many of his patients, he saw Mr. Conn on a referral basis from Mr. Conn’s family physician, Dr. Bernard Chiu. While Dr. Darcel was Mr. Conn's long time primary physician for his cardiovascular health, he reported by way of consultation notes to Dr. Chiu on a regular basis following Mr. Conn’s appointments with him.

Mr. Conn’s heart condition

9When Mr. Conn was a child (i.e. in the mid-1970s) his family doctor detected a murmur in his heart sounds. An echocardiogram examination of his heart was performed in 1985. An echocardiogram uses sound waves to produce images of the heart and to measure certain internal functions, such as blood flow and pressure. It is an important, non-invasive diagnostic tool in assessing heart ailments. The 1985 examination showed that Mr. Conn had a congenital aortic heart ailment, and he was diagnosed with a "bicuspid aortic valve with aortic stenosis".

10The aortic valve is located between the left ventricle of the heart and the aorta. The left ventricle pumps oxygenated blood through the aortic valve to the aorta, from where it supplies blood to the rest of the body. While a normal aortic valve has three "leaflets" and thus is called a "tricuspid" valve, Mr. Conn’s valve had only two leaflets, and was thus considered to be a "bicuspid" valve.

11Bicuspid valves are more prone to calcium deposits forming around the valve which can cause narrowing of the valve opening or "stenosis". Bicuspid valves are also prone to aortic regurgitation, in which some blood flows back into the left ventricle through an aortic valve which can no longer fully close. A patient with a bicuspid valve may require open heart valve replacement surgery if the stenosis becomes sufficiently severe and causes symptoms. Typical symptoms include including light headedness, dizziness, shortness of breath and chest pains.

Dr. Darcel’s past interactions with Mr. Connn

12Dr. Darcel first saw Mr. Conn in February 1994, on a referral from Dr. Chiu. I observe at this stage that (understandably in light of the passage of time) Dr. Darcel had limited recollection of his appointments with Mr. Conn. Much of his testimony was based on his review of his notes and records and his reports to Dr. Chiu, which he tended to dictate fairly soon after his patient appointments. Dr. Darcel also testified as to his standard and habitual interactions and practices when dealing with patients who presented with particular conditions or symptoms. Thus, Dr. Darcel’s testimony regarding his dealings with Mr. Conn was based on a combination of his records, his recollections and his usual practices.

13It is well-established that the ordinary practice of the professional can be given significant weight by the court: see Bafaro v. Dowd, [2008] O.J. No. 3474, at para. 29 (S.C.), affirmed 2010 ONCA 188, 260 O.A.C. 70. The doctrine of the admissibility of invariable practice evidence is well-established. This topic was discussed by the British Columbia Court of Appeal in Belknap v. Meakes, 1989 CanLII 5268 (BC CA), [1989] B.C.J. No. 2187 (B.C.C.A.) at pp. 13-14 as follows:

If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it in that way on the day in question.

Wigmore on Evidence, Vol. IA (Tillers Rev. 1983), states that there is no reason why habit should not be used as evidence either of negligent action or of careful action (Para. 97), and that habit should be admissible as a substitute for present recollection. Phipson on Evidence, 13th ed., para. 9-22, reachesa similar conclusion.

Similar reasoning admits evidence of a general course of business, a question dealt with by the New Brunswick Court of Appeal in Medical Arts Ltd. v. Minister of Municipal Affairs (1977), 1977 CanLII 2293 (NB CA), 23 A.P.R. 147 at p. 152:

The evidence adduced on behalf of the Minister of the usual course of business in the district office together with the certificate of the post office employee date stamped September 3, 1974 were admissible to prove the sending to the respondent of the documents referred to in s. 25(4) of the Act. Phipson on Evidence, 7th ed. states at p. 102:

To prove that an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done; there being a probability that the general course wM be followed in the particular case.

See also Turkington v. Lai, [2007] O.J. No. 4418 (S.C.) at para. 93.

14During his initial assessment, Dr. Darcel observed Mr. Conn’s heart murmur and noted from Mr. Conn’s medical records that he had undergone previous echocardiographic examination. In relation to aortic stenosis, an echocardiogram is used to assess heart size, valve area, aortic valve jet velocity, and pressure gradient. Collectively, these parameters, along with patient symptoms, allow cardiologists to assess the severity of the condition. Dr. Darcel noted that Mr. Conn had previously been diagnosed with a bicuspid aortic valve with a "gradient of 25 mmHg" and with mild aortic regurgitation. The gradient relates to the pressure difference on either side of the aortic valve (which tends to increase as the valve becomes increasingly stenotic because greater pressure is needed to allow blood to flow through a narrower valve) a phenomenon that can be detected through a combination of the results detected by the echocardiogram and the application of known scientific formulae.

15Dr. Darcel also noted, however, that Mr. Conn was entirely asymptomatic (that is, he had experienced no symptoms attributable to his condition) and had not noticed any change in his exercise tolerance (that is, his ability to exercise without exhibiting symptoms). Among other activities, Mr. Conn sometimes rode his bike to work and back for an approximate distance of 6 kilometres a day without problems. Based on this information, and his assessment of Mr. Conn, but without the benefit of a current echocardiogram, Dr. Darcel concluded that Mr. Conn had at least moderate aortic stenosis. He ordered a current echocardiogram to confirm this provisional diagnosis.

16A few days after the initial appointment in Dr. Darcel’s office, Mr. Conn underwent an echocardiogram at Dr. Darcel’s cardiology clinic. (The actual echocardiogram testing is performed by a trained technician, who reports the results to the physician whose responsibility it is to interpret the information and assess its significance.) Based on the results of the echocardiogram, Dr. Darcel determined that Mr. Conn’s stenosis fell into the severe range but was not yet critical. The echocardiogram result, combined with the fact that Mr. Conn remained asymptomatic, lead Dr. Darcel to conclude that, although Mr. Conn would almost certainly require aortic valve replacement at some point in the future, the indications for aortic valve replacement, being the development of symptoms or the development of a critical gradient, had not yet materialized.

17According to Dr. Darcel, at a follow up visit shortly after the echocardiogram results were available, he explained to Mr. Conn that his aortic bicuspid valve disease was in the severe range and that he would need valve replacement surgery at some point in the future. Dr. Darcel testified that, in accordance with his standard practice, he discussed with Mr. Conn the restrictions to be placed on Mr. Conn’s lifestyle as a result of his aortic stenosis. This included the importance of antibiotic prophylaxis to defend against potential endocarditis in appropriate situations (including in particular while undergoing dental care).

18Dr. Darcel further testified that he discussed with Mr. Conn the need to avoid severe exertion. He told Mr. Conn that he had a one percent risk of sudden death, which is usually associated with severe exertion. He testified that, in accordance with his standard practice, he provided Mr. Conn with a detailed explanation of what "severe exertion" meant. According to him, this is part of the "standard discussion" that Dr. Darcel routinely has with aortic stenosis patients at every visit, in which he routinely tells these patients to avoid severe exertion and to avoid competitive activities. His specific advice to these patients is that they should avoid snow shovelling and lifting heavy weights and further that any activities in which the patient engages should allow the patient to complete a full sentence without having to stop and take a breath. Dr. Darcel normally explains that with this condition there is a small risk of sudden death, which is usually associated with exertion.

19Dr. Darcel testified that as part of his usual practice he would have advised Mr. Conn at each visit about the importance of avoiding strenuous physical activity. Dr. Darcel explained that his usual practice was to ask questions of his patients to satisfy himself that they were truly asymptomatic and, in particular, to ensure that there was no change in the patient’s exercise tolerance. Dr. Darcel would, he testified, explore the specific activities in which the patient was involved as well as any symptoms that the patient experienced in relation to those activities. Dr. Darcel would also routinely speak about the kinds of symptoms that the patient should watch out for and advised Mr. Conn to report any such symptoms immediately. As part of his standard discussion, Dr. Darcel would tell patients to perform 30 to 45 minutes of moderate exercise on most days.

20At the conclusion of each visit, Dr. Darcel advised Mr. Conn that he should return for another visit in 6 months, and an appointment would generally be made for Mr. Conn at that time. Although Dr. Darcel encouraged Mr. Conn to return for another visit in 6 months, and routinely encouraged Mr. Conn to attend regularly, Mr. Conn did not follow this advice. Between February of 1994 and January 2004, Mr. Conn returned to see Dr. Darcel only sporadically. He rarely kept to the 6 month regime, and the gaps between his visits were routinely greater than 12 months, including one occasion in which he did not return for more than two and a half years.

21Dr. Darcel testified that, on those occasions when he did attend and underwent echocardiogram testing, Mr. Conn remained asymptomatic, and his aortic stenosis remained relatively stable. The findings reported on echocardiography suggest that Mr. Conn’s aortic stenosis fluctuated between moderate and severe. While this form of testing is highly sophisticated and technologically advanced, it is subject to uncertainties and variables, given that it essentially uses an ultrasound probe to detect and measure internal bodily structures and functions. Thus the precise location on the spectrum of measurement of the severity of the stenosis may vary slightly from one test to another.

The events of 2004-2005

22In late 2003, as a result of a high cholesterol test, Dr. Chiu (the family physician) again sent Mr. Conn to see Dr. Darcel. Following a December 2003 echocardiogram, they met on January 26, 2004. This was Mr. Conn’s first office visit with Dr. Darcel since May 2001. Following his review of the echo results and blood tests, Dr. Darcel concluded that Mr. Conn’s cholesterol did not require pharmacological intervention at that time.

23Mr. Conn had a follow-up echocardiogram and office visit with Dr. Darcel in August of 2004. No significant cardiac changes were noted, but Mr. Conn had been experiencing vision problems, which prompted Dr. Darcel to send him for a carotid Doppler study in case the symptoms related to mini-strokes. The results of those tests were negative but they confirmed mild plaque buildup in Mr. Conn’s carotid arteries. Another cholesterol test in September 2004 showed moderately elevated cholesterol, as a consequence of which Dr. Darcel recommended that Mr. Conn take medication to lower his cholesterol level along with so-called "lifestyle changes" – modified diet and exercise. Mr. Conn decided he did not want to follow Dr. Darcel’s advice and start taking cholesterol-lowering medication; instead, he opted to try to control his cholesterol levels with lifestyle changes alone. Dr. Darcel also referred Mr. Conn to the Heart Health Clinic at Joseph Brant Memorial Hospital for further assistance regarding dietary changes needed for lowering his cholesterol levels.

24On February 8, 2005, Mr. Conn and his wife attended the Heart Health Clinic which made specific recommendations for dietary changes and regular exercise. In relation to exercise, the advice was for 30 minutes of regular activity, not every single day, but on a regular basis. There is no evidence as to what advice if any the Heart Health Clinic gave with respect to the upper end of exercise.

25Following his attendance at the clinic, Mr. Conn made significant modifications to his diet. He and his wife joined the YMCA, and attended regularly. Mr. Conn would do light exercise on the elliptical machine for 20 to 30 minutes at a time. According to Mrs. Conn, he started this program on the advice of his doctor.

26In addition, in early June 2005, Mr. and Mrs. Conn wife joined a beginners’ long distance running clinic organized by the Running Room, a retail chain that specializes in running-related gear and activities. The beginners running program was designed to train novices so that they could ultimately participate in the Toronto Marathon running race, which was to be held on October 16, 2005. Mr. Conn did not seek advice from any physician, and in particular, Dr. Darcel, before undertaking this training regime.

27The marathon training program entailed running five days a week. Initially, the distances run were between 4 and 8 kilometres. Thereafter, they increased toward the date of the marathon. The method of training used by the Running Room promoted 10 minutes of running, followed by a 1 minute walking break (the so-called "run-walk" method). The clinic had four different pace groups. Mr. Conn and Mrs. Conn signed up for the slowest pace group – the so-called "finish with a smile" group. There was no specific time goal associated with their pace group.

28Through the Running Room clinic, Mr. Conn participated in weekly long Sunday runs and weekly shorter runs one night during the week, with other members of the clinic. On one occasion (July 31, 2005) Mr. Conn ran approximately 23 kilometres during a long Sunday run (the so-called "mansions run" through the residential streets of Oakville). According to the training regime, Mr. Conn was to supplement these group runs with three additional runs by himself during the week.

29It is fair to say that Mr. Conn completed his training runs at a relatively low level of intensity: he would both walk and run. Although the run/walk method involved running for 10 minutes and walking for one minute, he and Mrs. Conn would often spend portions of the 10 minutes of designated "running" time doing further walking. Mrs. Conn recalled on one occasion during which she and Mr. Conn walked for approximately 75% of the run. Mr. Conn did not engage in the speed work or hill training recommended by the Running Room’s training program. Mr. Howlett, who was the Running Room instructor, gave evidence that he would be concerned about whether a runner could complete a half-marathon within the goal time without partaking in this aspect of the training program.

The July 12, 2005 echocardiogram and the August 2, 2005 office visit with Dr. Darcel

30After he began participating in the Running Room clinic, Mr. Conn underwent a further echocardiogram on July 12, 2005. This echocardiogram continued to show moderate to severe aortic stenosis with a peak gradient of 81 mmHg, a mean gradient of 49 mmHg and a calculated aortic valve area of 1.1 cm2. Mr. Conn’s left ventricular size and function continued to be normal. Although the peak gradient appeared to be much higher than the previous study, which was reported at 51 mmHg, the valve area remained stable. Based on these measurements, Mr. Conn’s aortic stenosis could be characterized as "moderately severe" or "severely moderate."

31Mr. Conn saw Dr. Darcel in a follow up appointment on August 2, 2005. Dr. Darcel conducted a physical examination and discussed Mr. Conn’s symptoms and activities, including his recently-commenced running regime. In his consultation note to Dr. Chiu for that visit, Dr. Darcel reported that Mr. Conn’s cholesterol is "markedly improved". He reviewed the results of the July 12 echocardiogram and concluded:

Christopher Conn seems to be doing well. His aortic stenosis is in the moderate to severe range. However, he remains convincingly asymptomatic. I feel we can continue to follow him along. I made no change today and look forward to reviewing him in six month’s time.

I did counsel him against marathon running which he was considering.

32There is a factual dispute between the parties about specifically what was said during this appointment. The only participants in the discussion were Dr. Darcel and Mr. Conn. Dr. Darcel testified that he told Mr. Conn that he felt that running 20 kilometres was too much, and that Mr. Conn should cut back. Mrs. Conn gave evidence that she was subsequently told by Mr. Conn that he had told Dr. Darcel that he was planning on participating in a full marathon and that Dr. Darcel cautioned him against running a full marathon but said he could continue with the distances he had already been running. Mrs. Conn’s sister Sandy Stark gave evidence that Mr. Conn told her about the advice he had received from Dr. Darcel, in substantially the same terms as he did to his wife. The admissibility of this evidence from Mrs. Conn and her sister is contested. I will return to this subject, and the specifics of the August 2, 2005 discussion, in due course.

Subsequent events

33Following his August 2, 2005 visit with Dr. Darcel, Mr. Conn altered his running program. He contacted the clinic coach and began to pursue the training regime for the half-marathon, instead of the full marathon. He submitted an on-line registration for the event, in which he described his heart condition as a "heart murmur" only. Despite the fact that there was no specific time goal associated with the "finish with a smile" pace group, he put a target time for finishing of 2 hours 15 minutes. As the weeks wore on, however, he trained less and less frequently. Mr. Conn missed at least two long Sunday runs with the Running Room marathon training clinic and he also missed non-group runs when he was travelling for work. His training routine did not involve any specific hill training or speed training. Furthermore, he temporarily stopped training completely in early October, while he was "on the fence" about running the half-marathon.

34On September 13, 2005 Mr. Conn attended at Dr. Chiu’s office to discuss a skin problem. They also discussed Dr. Darcel’s advice against marathon running. Dr. Chiu’s note of that visit records that he "advised against doing marathon run as Dr. Darcel did." By the time of this visit, Mr. Conn had already registered to run the half-marathon only.

35The Toronto Marathon running race was scheduled to take place on Sunday, October 16 2005. Unfortunately, Mrs. Conn had been unwell in the period leading up to that date, and she decided not to participate in the half-marathon. Mr. Conn was undecided about participating as well, and his training regime reflected this. Only on the evening of Friday, October 14, 2005, did he decide that he would go through with the event, with the intention to run alongside his friend and neighbour, Jim Babbitt.

36On October 16, 2005, Mr. Conn ran the first 15 kilometres of the half-marathon alongside Mr. Babbitt. They had planned to run together, and to finish together. They utilized the same walk-run approach they had used in training. Mr. Babbitt gave evidence that while the two of them ran up Hoggs Hollow hill (a steep and lengthy incline) near the beginning of the race, Mr. Conn was unable to carry on a conversation. Mr. Babbitt completed the course in two hours and sixteen minutes. Mr. Conn maintained the same pace for the first 15 kilometres of the race, until he was unable to keep up. Mr. Babbitt maintained that same pace, as best as he was able, after Mr. Conn fell behind.

37Mr. Conn crossed the finish line of the half-marathon with a "chip" time (net time) of two hours and twenty three minutes. Minutes later he collapsed. He received immediate medical attention. He was rushed to a nearby hospital, where he arrived with vital signs absent. Sadly, despite the urgent care that he received, he could not be resuscitated.

38The expert witnesses called by both sides discussed the cause of death and the part played by Mr. Conn’s pre-existing heart condition. In simple terms, the plaintiff’s expert, Dr. Fitchett, described the mechanism of death as follows: upon completing the run and stopping exercise, the venous blood flow was abruptly reduced due to the lack of muscle contractions (which assist circulation). The arteries remained inappropriately dilated, due to abnormal neuro-vascular reflexes originating from excessive stimulation of receptors in the heart muscle. This resulted in a lack of adequate blood supply flowing to the heart, leading to a precipitous drop in blood pressure. The situation was complicated by the presence of aortic stenosis since the heart could not compensate as it would have with a normal aortic valve. As a consequence, there was insufficient blood flow going into the coronary arteries that that feed the heart muscle. The heart was unable to compensate enough to tolerate this further loss of oxygen, and as a consequence it went into ventricular fibrillation or a life threatening arrhythmia and arrested. The result was likely sudden death.

39The defendant’s expert witness, Dr. Liu agreed with much of what Dr. Fitchett described, but additionally described a preceding phenomenon, also related to Mr. Conn’s aortic stenosis: during the run, the heart was working as hard as it could but, by reason of the aortic stenosis, it could not pump sufficient blood into the aorta and then into the cardiac arteries to keep the heart itself adequately oxygenated. As a consequence, the heart muscle came to be starved of blood and effectively suffered an ongoing heart attack. Thus it was already compromised when Mr. Conn finished the run. Once he crossed the finish line and stopped exercising, the phenomena described by Dr. Fitchett also came into play which, in combination with the existing problem, ultimately resulted in a fatal cardiac arrest.

40Thus, while the experts disagree slightly regarding some aspects of the actual mechanism of death, they concur that it was due to the strain experienced by Mr. Conn’s heart arising from his aortic stenosis, by reason of his participation in the half-marathon run.

41A post-mortem examination confirmed the presence of severe aortic stenosis. The examining coroner specified the cause of death as "aortic stenosis with calcific stenosis."

The Litigation

42In this lawsuit the plaintiffs assert that Dr. Darcel was negligent and failed to meet the standard of care in his treatment of Mr. Conn in that he did not provide him with advice on the appropriate and safe level of exercise in the face of his severe aortic stenosis. They assert that, instead of telling Mr. Conn to limit his activity to relatively low levels, Dr. Darcel told him he could run distances of up to 20 kilometres.

43Dr. Darcel responds that he provided appropriate care and advice to Mr. Conn, and counselled him not to engage in the level of activity that he had begun to undertake. Despite that advice, Mr. Conn chose to participate in the half-marathon and exceeded the exercise tolerance limits imposed by his heart condition, with the resulting tragic outcome.

44The resolution of this dispute entails an assessment of the evidence surrounding the key encounter between Mr. Conn and Dr. Darcel on August 2, 2005, their final appointment prior to the half-marathon, and the determination whether the advice given on that occasion did or did not meet the standard of care. This requires me to make findings of fact and also entails a review of the expert evidence proffered by the parties. Before embarking on that exercise, however, I will address certain evidentiary issues that arose during the trial

EVIDENTIARY ISSUES AND ANALYSIS

45With the agreement of the parties, on several occasions during the trial I received evidence in the face of an objection from the opposite party, on a so-called provisional basis. This was done on the understanding that, when time permitted, counsel would make appropriate submissions regarding the admissibility of that evidence. It was further agreed that my rulings as to the admissibility of the disputed evidence would be incorporated into my reasons for judgment at the conclusion of the case. What follows is my analysis and ruling in respect of each of these evidentiary issues.

46As the trial judge in a judge-alone trial, I perform the dual functions of judge of the law and trier of fact. In the former capacity, I am called upon to make rulings as to admissibility of disputed evidence. In relation to disputes regarding both hearsay and opinion evidence and its admissibility, I am thus "the gatekeeper" who must first be satisfied that the legal test for admissibility of the evidence is met, before I may go on to consider that evidence in performing my role as trier of fact.

Hearsay statements by Mr. Conn concerning his appointment with Dr. Darcel on August 2, 2005

47As part of the plaintiffs’ case, counsel sought to adduce evidence from Mrs. Conn and from her sister, Sandra Stark, concerning statements made to them by Mr. Conn regarding what was said to him by Dr. Darcel at the appointment on August 2, 2005. In each case, this evidence was proffered with a view to proving the truth of what Mr. Conn said about the appointment, and specifically what advice he had received that day from Dr. Darcel. As such, they are classic hearsay situations. The defendant objected to the admissibility of the evidence on this basis.

48The statements attributable to Mr. Conn (who, for purposes of this analysis, is the "declarant", while Mrs. Conn and Ms. Stark are the "narrators") were made on two separate occasions. The first was on August 2, 2005, within hours of the appointment, by Mr. Conn to Mrs. Conn at their home. The second was made on October 9, 2005 by Mr. Conn to Ms. Stark, in the presence of Mrs. Conn. The latter statement was made at the home of Mrs. Conn’s and Ms. Stark's parents following a family Thanksgiving dinner.

49Mrs. Conn did not attend the appointment with Dr. Darcel on August 2, 2005, but was aware of it. The appointment was scheduled for 4:30 p.m. Mr. Conn came home afterwards and Mrs. Conn had prepared dinner for him. While he was eating, she asked him about the appointment. Their conversation took place at approximately 7 p.m. that same day.

50According to her testimony-in-chief, Mr. Conn mentioned to her that "Dr. Darcel had told him that he didn't want him doing the full marathon." According to her, this was concerning to her, so she enquired as to why. Mr. Conn responded that, based on his condition, Dr. Darcel "just didn't want him to do the full marathon and then he said to me that he is ok to do what he has done thus far." Mrs. Conn wanted to know exactly what Dr. Darcel had said to Mr. Conn and she asked him to tell her word for word what Dr. Darcel had said. According to her evidence, Mr. Conn responded "I am ok to do what we've done thus far". By this stage, Mr. and Mrs. Conn had run up to a 23 kilometer distance training run (the so-called "mansions run") just a few days before.

51In another portion of her testimony-in-chief, Mrs. Conn stated that Mr. Conn reported that Dr. Darcel had said to him "don't do any more than what you've done. But you are ok so far and to do what you've done thus far."

52On cross-examination, she confirmed that Mr. Conn did not report that Dr. Darcel had said he could run a half-marathon or that Dr. Darcel said he could enter a race. Mrs. Conn confessed that she is a worrier and wanted to find out what Dr. Darcel had said. She agreed they had a probing discussion. Although she claimed to be certain that Mr. Conn said that doctor's words were that "you are ok to do what you've done thus far", on her examination for discovery 4 years earlier in May 2009, she testified "I can't give you the exact words he said to me. . . . [M]y understanding is that it was the length of time and the impact for such a long period of time that wouldn't be healthy for him."

53The second hearsay statement in dispute was described by Mrs. Conn’s sister, Sandra Stark. Her testimony in chief on the point was as follows:

I was clearing plates and Chris was standing behind Will [his son William]. Shae was sitting across the table. I had … I came right out and directly asked Chris that … about his appointment. I knew he had had one, and I said "I understand that you had an appointment with your doctor about … about the run coming up." And he … he agreed. He said "Yes" he had, and I said "How did that go?" And he said "It was good." He said … I said "I heard from Shae that you, um, were told not to run the full marathon, that you weren't going to run that" and he said "Yeah, that's right." And he said … "He said that, uhm, we could …. He said … he told me he couldn't condone running the full marathon, not to run any distance greater than we had already." So I said "Oh", because I had said to … at first that "I thought you could run the half" and that's when Shae had said across the table, she said, "Yeah". And Chris said "No. He said to not run … He said …" I want to be clear … "He said not to run the distance greater than we had already." And I said "So what are you going to do?" And he said "Well, we've run the half in training, so we’re pulling out of the full, and we are going into the half."

Ms. Stark said that she had a very specific recollection, because this was the last conversation she had with Mr. Conn.

Analysis

54It is common ground that neither of the hearsay statements attributed to Mr. Conn falls within any of the traditional exceptions to the hearsay rule. Rather, the parties agree that the question of the admissibility of this evidence turns on the application of the so-called "principled exception" to the hearsay rule, as articulated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57. As confirmed by that decision, hearsay evidence is presumptively inadmissible, unless it falls under an exception to the hearsay rule. If the evidence does not fall under an existing hearsay exception, it may still be admitted if it meets the twin requirements of necessity and reliability.

55In the present case, it is conceded that the requirement of necessity is met in relation to the statements of Mr. Conn sought to be introduced through Mrs. Conn and Ms. Stark. The reason, simply stated, is that because of his death, Mr. Conn is unavailable to testify; as a result, there is no other source from which the court can hear Mr. Conn's version of what transpired at the appointment with Dr. Darcel on August 2, 2005.

56In Khelawon the Court explained the rationale for the "principled exception" as follows (at para. 49):

The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

57As the judge of the law, my role in assessing the reliability of the disputed evidence is different from my role as trier of fact. When assessing the reliability for purposes of the twin tests of necessity and reliability, the concept refers to "threshold reliability". This means that my function is to determine whether the particular hearsay statements exhibit sufficient indicia of reliability so that, as trier of fact, I will have a satisfactory basis for evaluating the truth of the underlying statement. As the Supreme Court explained in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043 at para. 75:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

58In Khelawon, the Court returned to a discussion of satisfying the threshold reliability requirement at paras. 62 and 63:

62 One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form. [i.e. the statement is inherently trustworthy] ….

63 Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. [i.e. the statement can be tested]. [Bracketed summaries are mine.]

59One factor that has received particular attention in several of the cases is the relationship between the declarant and the narrator and whether the declarant had any motivation to fabricate the contents of the statement in question. This topic was discussed at length in R. v. Czibulka, 2004 CanLII 22985 (ON CA), [2004] O.J. No. 3723 (C.A.) at paras 35 and following. At para. 43 Rosenberg J.A. noted:

It seems to me the record will disclose some variation on three scenarios where the Crown seeks to tender a hearsay statement under the Khan [R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531]/Smith [R. v. Smith, 1992 CanLII 79 (SCC), [1992] S.C.J. No. 74] model of the principled approach. First, the Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused. … Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story. … Or, the case may be one where there is simply no evidence and no logical inference that the declarant had no motive to lie. In the last scenario, motive is in effect a neutral consideration. Because it is for the proponent of the hearsay evidence to show that it was made under circumstances of trustworthiness, if there are few other compelling circumstances of reliability the application to admit the hearsay statement will probably fail. If there are other indicia (and for example in Khan there were many others) the statement may or may not be admitted depending on the strength of those other factors on the reliability issue. [Footnote omitted].

60At para. 50 he observed:

It seems relatively clear, however, that in addition to the immediate circumstances under which the statement was made, the court may take into account evidence of the relationship between the declarant and persons to whom the statement was made. … [I]n Smith, Lamer C.J.C. found that a statement by the deceased to her mother may have been untruthful; in that case, the deceased did not want her mother to send a particular person to pick her up and thus, wanting to "allay her mother's fears", she may have told her mother the accused was going to drive her home. See Smith at [para. 43].

In Smith, the Supreme Court held that the circumstances under which the declarant made the disputed telephone call to her mother "were not such as to provide that circumstantial guarantee of trustworthiness that would justify the admission of its contents by way of hearsay evidence, without the possibility of cross-examination." Because "the hearsay evidence of the contents of the … telephone conversation did not satisfy the criterion of reliability set out in Khan, … [it] was not admissible on that basis." (Smith at para. 44)

61The topic of motive to lie was also the subject of comment by the Supreme Court in R. v. Blackman, 2008 SCC 37, [2008] S.C.J. No. 38, at para. 42, as follows:

There is no doubt that the presence or absence of a motive to lie is a relevant consideration in assessing whether the circumstances in which the statements came about provide sufficient comfort in their truth and accuracy to warrant admission. It is important to keep in mind, however, that motive is but one factor to consider in the determining of threshold reliability, albeit one which may be significant depending on the circumstances. The focus of the admissibility inquiry in all cases must be, not on the presence or absence of motive, but on the particular dangers arising from the hearsay nature of the evidence. …

62In Blackman the Supreme Court confirmed that the credibility of the narrator of the out of court statement is not a factor going to threshold reliability. The key is that the narrator of the statement is present and available to be cross-examined. That said, the credibility of the narrator may be considered in the exercise of the trial judge's residual discretion to exclude evidence otherwise admissible where the potential probative value of the evidence is exceeded by the potential prejudicial effect. In the present case, the defendant did not argue that the potential prejudice of this evidence exceeded its probative value.

63Finally, I note that the onus is on the person who seeks to adduce the evidence to establish that the criteria for admissibility are established, on a balance of probabilities: see Khelawon at para. 47.

64Against the foregoing legal framework, I now turn to an analysis of the admissibility of the statements attributed to Mr. Conn. Because they were made under different circumstances, I will deal with them separately, beginning with the statement described by Mrs. Conn.

65To begin with, the discussion between Mr. and Mrs. Conn took place within hours of the appointment between Mr. Conn and Dr. Darcel. Thus, it was reasonably contemporaneous. In other words, the events described by the declarant (Mr. Conn) were at the time relatively fresh in his mind. There is thus little concern that he may have forgotten or erroneously recalled what he described. This supports the notion of threshold reliability, subject to my comments below regarding spontaneity.

66The discussion concerned a subject of some significance to both Mr. and Mrs. Conn. They had both recently taken up running and training for the marathon in October, and this was a subject that would naturally arise during the course of Mr. Conn's visit with his cardiologist. The running clinic, the training runs, and the eventual plan to run the marathon were undertakings in which Mr. and Mrs. Conn were jointly engaged. It is therefore natural and understandable that he would be expected to report to her what had transpired at his appointment. Thus, Mr. Conn was aware in advance that his wife would be expecting him to explain to her what Dr. Darcel had advised; in other words, his statement to her was not necessarily spontaneous, a factor that detracts from threshold reliability.

67In the present case, another relevant factor is the fact that, to a certain extent, Mrs. Conn cross-examined Mr. Conn about his visit. As she put it, she made a point of asking him, in a probing discussion, to tell her word for word what Dr. Darcel had said. In my view, this reflects a degree of testing of the statement, and supports its threshold reliability.

68Both parties made submissions to me regarding whether Mr. Conn had any motive to fabricate or be untruthful to his wife about what transpired in his appointment with Dr. Darcel. In the plaintiffs’ submission, there was no need for Mr. Conn to mislead his wife. He had no vested interest in participating in the marathon or the half-marathon, and had no abiding interest in competitive sports. He had "nothing to prove" by continuing with the training regime; indeed, if his motivation had been to avoid causing concern to his wife, he could have easily done so and reduced his training regime without causing alarm on the part of his wife. The defendant submits that Mr. Conn had previously been less than candid with his wife about his medical condition and the resulting limitations on his activities, and he had a motive to fabricate.

69In relation to Mr. Conn’s past candour with his wife regarding his heart condition, the defendant correctly points out that there were many aspects of Mr. Conn’s medical condition of which Mrs. Conn was unaware. For example, she was not aware of any restrictions on Mr. Conn's physical activities (save his inability to play hockey as a child). She did not know about the long-standing requirement that he must avoid strenuous physical activity or severe exertion. Despite medical advice that he should not do so, he participated in snow shovelling, once again not disclosing to Mrs. Conn his physical limitations. Additionally - and significantly, in my view - Mr. Conn never told his wife that he would likely require heart valve replacement surgery at some point.

70His infrequent and irregular visits to Dr. Darcel in the face of the standing recommendation that he return every six months, suggest that Mr. Conn himself tended to downplay the significance of his condition. This was further reflected in the notation he made on his Toronto Marathon registration form in which he disclosed merely that he had a heart murmur, despite his knowledge that he had aortic stenosis. Dr. Fitchett, the plaintiffs’ expert, agreed that to describe Mr. Conn’s condition as merely a heart murmur would be a very significant understatement of his medical condition.

71The foregoing examples are fairly strong evidence of Mr. Conn’s tendency to understate the significance of his heart condition. The very fact that Mr. Conn did not (according to the evidence of Mrs. Conn) relay Dr. Darcel’s documented advice (as reported in Dr. Darcel’s consultation note to Dr. Chiu) that he had "counsel[led] him against marathon running" is further evidence of this tendency.

72In relation to the issue of motivation to fabricate, it is understandable that, in August 2005, Mr. Conn would wish to understate to his wife (as he had previously) the seriousness of his condition, for several reasons. Mrs. Conn had a recent history of anxiety. The evidence confirms that Mr. Conn was dedicated to his wife and family, and thus it is logical that he would be protective of her and not want to cause her any concern about his medical condition. He was the principle breadwinner in their family. The very joint activity in which they had been training to participate (marathon running) was something he had been told to avoid. Indeed, their most recent marathon training activity - the "mansions run" - was, Mr. Conn would have realized in retrospect, something he should have avoided. Disclosure of that information would no doubt have caused considerable alarm to his wife and would no doubt have prompted a more probing discussion about the true extent of his heart disease. This is something Mr. Conn would have anticipated after he met with Dr. Darcel that day, but before he spoke with his wife. Thus, as I have noted, his statement to her was not spontaneous, but instead consisted of responses to questions he was expecting when he arrived home after the appointment. Put another way, there is good reason to believe that what Mr. Conn said to this wife on this occasion was said to "allay her fears". (Smith, supra.)

73In relation to the topic of corroboration, the plaintiffs submit that Mr. Conn’s subsequent actions of changing the training schedule and enrolling in the half-marathon in lieu of the marathon are corroborative of the truth of the disputed statement. In my view, however, this conduct is equally consistent with seeking to avoid causing alarm to Mrs. Conn arising from the discussion with Dr. Darcel. At best, it is equivocal.

74I am alert to the comment of the Supreme Court in Blackman that "motive is but one factor to consider in the determining of threshold reliability, albeit one which may be significant …." In my view, however, the evidence regarding Mr. Conn’s history of non-disclosure to Mrs. Conn regarding his medical condition and his infrequent visits to Dr. Darcel, coupled with his motivation to fabricate, raise serious doubts whether the statements to Mrs. Conn were made under circumstances of trustworthiness. In essence, he had a demonstrated history of downplaying the seriousness of his heart condition in the past. Although the August 2, 2005 statement to Mrs. Conn was made relatively soon after the appointment with Dr. Darcel, and she did question him about it, the timing and the questioning do not, in my view, serve as a proxy for testing its truth in a courtroom, and do not serve to overcome the concerns I have mentioned. Put summarily, I do not believe it would be safe to rely on this hearsay statement.

75In the circumstances, I conclude that the requirement of threshold reliability is not satisfied. I therefore rule inadmissible the evidence of Mrs. Conn concerning what was said to her by Mr. Conn about the appointment with Dr. Darcel on August 5, 2005.

76I turn now to the statement described by Ms. Stark, at the end of the family Thanksgiving dinner on October 9, 2005. To state the obvious, Mr. Conn made this statement approximately 9 weeks after his appointment with Dr. Darcel. It therefore lacks the element of reasonable contemporaneity. That said, it is remarkably consistent with the substance of what Mr. Conn said on August 2, 2005. Indeed, Mr. Conn went so far as to restate his version of Dr. Darcel's advice, when he disagreed with Mrs. Conn's paraphrased version of it.

77I will not repeat my discussion in relation to the issue of motive to fabricate. This statement by Mr. Conn was made in the presence of his wife. It is therefore understandable that he would repeat the same information, and for the same reasons. I am left with the same concerns regarding the trustworthiness of the statement. I therefore conclude that the requirement of threshold reliability is not met. I rule this evidence inadmissible, as well.

Evidence of Mrs. Conn about what Mr. Conn would have done

78Mrs. Conn was asked in chief whether her husband would have taken the risk of running the half-marathon if, indeed, he had been counselled against doing so by Dr. Darcel. She testified that he would not have run the race if Dr. Darcel had said not to do so. The admissibility of this evidence was disputed by the defendant, and her answer was received provisionally, as above. The admissibility of this evidence was debated by the parties on the basis that it was opinion evidence – essentially, the opinion of Mrs. Conn concerning her husband’s likely course of action, based upon her detailed knowledge of his past conduct and her close relationship with him.

Analysis

79As stated in Sopinka, Lederman & Bryant, The Law of Evidence in Canada , 3rd ed. (Toronto: LexisNexis Canada Inc., 2009) at 771:

As a general rule, a witness may not give opinion evidence but may testify only to facts within his or her knowledge, observation or experience. … A qualified expert witness, however, may provide the trier of fact with a ‘ready-made inference’ which the jury is unable to draw due to the technical nature of the subject matter.

80The plaintiffs acknowledge this broad principle. They submit, however, relying on R. v. Graat, 1982 CanLII 33 (SCC), [1982] S.C.J. 102, that it has been relaxed in relation to lay opinion evidence by the so-called"helpfulness rule". Under this rule, where the witness’s "opinion" testimony is founded on his or her personal knowledge or perceptions, the trier of fact can admit the evidence and then assess the weight to be given to it.

81The defendant submits that the evidence of Mrs. Conn on this point goes well beyond the permissible scope of opinion evidence, whether lay or expert. He relies on Adam v. Campbell, 1950 CanLII 326 (SCC), [1950] S.C.J. No. 51, where the Supreme Court held that an automotive engineer could not give opinion evidence as to how a motorist would respond to a sudden brake failure, and the effect that this would have on reaction time. In that case the majority of the Court stated (at para. 34):

In my view the evidence quoted above was inadmissible on two grounds. The first is that neither witness had conducted any tests or laid any other foundation to indicate that he had any qualification to express an opinion on such a matter as the "reaction time" upon encountering an "unusual" as opposed to an "ordinary" traffic hazard. The second is stated in the following words in Phipson on Evidence, 8th ed., p. 385: "Neither experts nor ordinary witnesses may give their opinions upon matters of legal or moral obligation, or general human nature, or the manner in which other persons would probably act or be influenced." [Emphasis in original.]

82For present purposes, the question thus becomes whether the Graat extension of the rule regarding admissibility of non-expert opinion evidence has had the effect of overruling the limits placed on the kind of testimony that was ruled inadmissible in Adam v. Campbell. In my view, in relation to the admissibility of non-expert opinion evidence, Graat stands for the proposition that a fact witness may give opinion evidence based on facts which he or she has observed where the opinion is simply a convenient way for the witness to communicate those facts. I base this conclusion on the following excerpt from the Supreme Court decision (at p. 14):

I accept the following passage from Cross as a good statement of the law as to the cases in which non-expert opinion is admissible.

When, in the words of an American judge, "the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated", a witness may state his opinion or impression. He was better equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury:

"Unless opinions, estimates and inferences which men in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were mere statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe."

There is nothing in the nature of a closed list of cases in which non-expert opinion evidence is admissible. Typical instances are provided by questions concerning age, speed, weather, handwriting and identity in general [at p. 448].

Before this Court counsel for the appellant took the position that although opinion evidence by non-experts may be admissible where it is "necessary" the opinions of the police officers in this case were superfluous, irrelevant and inadmissible. I disagree. It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state. This is because it may be difficult for the witness to narrate his factual observations individually. …

83In my view, the evidence that the plaintiffs sought to adduce through Mrs. Conn was not merely a convenient way to summarize facts that she had already observed. Rather, based upon her past observations, she was asked to provide a speculative opinion about future events, a category of testimony that extends well beyond the principle established in Graat. That case merely confirms that a witness may, via a statement of his or her opinion or impression, convey the conclusion they reached based on past events they personally witnessed. It is something quite different for a witness to engage in theoretical prognostications, such as what might a particular person might have done in a hypothetical fact situation. Consistent with the decision in Adam v. Campbell, I hold that such evidence amounts to testimony about the manner in which another person would probably act, and is not admissible.

84I therefore rule inadmissible the evidence of Mrs. Conn regarding what Mr. Conn would likely have done had he received certain advice from Dr. Darcel.

Dr. Liu’s evidence concerning his observations about the behavior of adult patients who have congenital heart disease/defects

85During his examination-in-chief, the defendant’s expert witness Dr. Liu was asked questions regarding his observations of the general conduct of adult patients who have been diagnosed with congenital heart disease/defects. He gave evidence, based upon his experience with this patient population, concerning propensities within this group in relation to training and exercise and advice that they may receive concerning those subjects. He described a phenomenon that, despite the usual advice regarding the physical limitations arising from such conditions, these patients will almost challenge that advice and will actually do things to test their limits in a way. The plaintiffs objected to this evidence and it, too, was received provisionally, subject to a ruling to be included in my reasons for judgment.

Analysis

86The plaintiff’s position in relation to this evidence is that it is subject to the same principles that govern the admissibility of Mrs. Conn’s evidence regarding what Mr. Conn would have done. The defendant counters that this evidence is proffered not in an attempt predict a hypothetical future event, but rather to describe a phenomenon that has been observed in patients with a diagnosis similar to that of Mr. Conn. The purpose of this evidence is to provide a context in which the rest of the evidence can be evaluated.

87Through Mrs. Conn’s testimony, which I have ruled inadmissible, the plaintiffs sought to lead opinion evidence from Mrs. Conn as to what Mr. Conn would have done had he received certain advice. This was, effectively, an attempt to lead opinion evidence as to the ultimate issue in the case, namely, whether Dr. Darcel gave proper advice to Mr. Conn. By contrast, the defendant argues, Dr. Liu’s testimony does not include any conclusions specifically about what Mr. Conn would have done. Rather, it provides a context in which the evidence of other witnesses who can speak more directly to the facts of the case, can be placed and assessed.

88In R. v. Abbey, 2009 ONCA 624, 68 C.R. (6th) 201, at para 99 the Court of Appeal held that expert evidence may be admissible to provide a context in which to place and assess the evidence of other witnesses. Abbey stands for the proposition that an expert may give evidence about certain kinds of behavior that are commonly observed in a particular population to provide the trier of fact with a more complete picture when assessing the entirety of the evidence. It also confirms that the witness may not go further to draw specific conclusions about a particular individual. It seems to me, however, that this is the very purpose for which the defendant would have me use this evidence of Dr. Liu: to draw a conclusion regarding Mr. Conn’s conduct and decision-making process in relation to running the half-marathon. This is very similar to the evidence of Mrs. Conn regarding what she believes Mr. Conn would have done had he received certain advice from Dr. Darcel, and it is objectionable on the same basis.

89I therefore conclude that this testimony by Dr. Liu is inadmissible. Even if I had admitted it, I would have assigned no weight to this evidence.

LIABILITY ISSUES AND ANALYSIS

90This is a case in which there are very few disputed facts or disagreements between the experts. There is no material dispute regarding the degree of Mr. Conn’s aortic stenosis or the mechanism of his death and the part that aortic stenosis played in it. What this case comes down to is a determination of what advice Mr. Conn received from Dr. Darcel and whether, in providing that advice, Dr. Darcel met or fell below the standard of care.

What advice did Dr. Darcel provide?

91The critical exchange between Mr. Conn and Dr. Darcel took place at the appointment on August 2, 2005. This appointment followed Mr. Conn’s echocardiogram on July 12, 2005. Dr. Darcel’s notes of the appointment are relatively brief and are supplemented by his August 2, 2005 consultation note to Dr. Chiu.

92According to Dr. Darcel, the appointment began with a review of the findings revealed on Mr. Conn’s echocardiogram. Dr. Darcel noted that the July 12, 2005 echocardiogram continued to show moderate to severe aortic stenosis. His assessment was consistent with the fact that Mr. Conn continued to exhibit no symptoms. Dr. Darcel also carried out a physical examination and felt Mr. Conn’s carotid upstroke. An abnormal carotid upstroke can suggest a narrow aortic valve, however, Mr. Conn’s carotid upstroke was normal.

93In his trial evidence, Dr. Darcel also described his discussion with Mr. Conn regarding his activities and his lack of symptoms. He testified that he was "shocked" to learn that Mr. Conn had begun running distances of up to 20 kilometres, because historically he had been trying to reinforce the message to avoid severe exertion and this seemed to him to be significant exertion. Dr. Darcel testified that Mr. Conn reported to him that the running that Mr. Conn was doing with his wife consisted of a combination of running and walking. Dr. Darcel recalled Mr. Conn reporting that he was alternating between 10 minutes of walking and 10 minutes of running. He further testified that Mr. Conn reported that the activity approached in this way was easy to do and not significantly stressful or strenuous and that he was experiencing no problems or symptoms such as fainting, feeling short of breath, or chest pain as a result of this exercise.

94When asked what he told Mr. Conn about what level of activity would be acceptable in his case, Dr. Darcel testified in chief that he told him to do less than what he was doing because he was not happy with what he was doing. Dr. Darcel was unable to recall specifically what he told Mr. Conn he could do, but said that, as was his usual practice, he would have told him to do moderate exercise, which is 30 to 45 minutes of brisk walking. Dr. Darcel testified that he reminded Mr. Conn that for someone with Mr. Conn’s condition there was a small but real chance of sudden death associated with strenuous activity. Dr. Darcel testified that he told Mr. Conn that the risk of "sudden death" was approximately 1% and that any severe exertion of a patient with aortic stenosis is dangerous and potentially life-threatening.

95On cross-examination, Dr. Darcel was taken to his discovery evidence concerning this discussion, in which he was asked about what he told Mr. Conn about safe and appropriate levels of activity. On that occasion, he indicated that he could not recall the specifics. The plaintiffs submit that this discovery evidence was at odds with his trial testimony. I disagree. In chief, Dr. Darcel conceded he could not recall specifically what was said. He then went on to explain his usual practice in such circumstances. I see no contradiction. As I have noted previously, habit is admissible as a substitute for present recollection, and I understood Dr. Darcel’s trial testimony to be based on his usual practice in such a situation.

96The plaintiffs argue that, because Dr. Darcel had never before encountered a 36 year old patient with severe aortic stenosis who had taken up a training regime such as the one Mr. Conn had, there was no "usual practice" to which the doctor could resort and describe in the absence of specific recollection. With respect, I consider that to be an overly narrow approach to this issue. Every patient has individualized circumstances; nevertheless, it is not a stretch to accept that an experienced cardiologist would be able to say with assurance what his response would have been to a given presentation. That is precisely what Dr. Darcel did here, and given the past interactions between doctor and patient, his evidence on the point is persuasive.

97Although the August 2, 2005 discussion is central to this dispute, it cannot be considered in isolation. Rather, it was another in a long series of discussions between Mr. Conn and his cardiologist. Dr. Darcel’s invariable practice was to warn patients with aortic stenosis regarding the need to avoid strenuous physical activity or severe exertion. Over the years (and dating back to their initial consultation) that advice was repeated regularly to Mr. Conn. It is therefore logical and natural that, when Dr. Darcel learned that Mr. Conn had taken up distance running and planned to run a marathon, he would react with shock and advise Mr. Conn not to do so but instead pursue a moderate exercise regime. A 20 kilometer run, even when performed with a walk/run regime, must qualify as a strenuous physical activity, by anyone’s definition; when performed in the context of an organized running race, it would also qualify as a "competitive activity", something Mr. Conn had been told repeatedly to avoid. (While I am alert to the plaintiffs' submission that Mr. Conn did not run "to compete" but instead "to complete" the half marathon, it remains the case that he set a predicted time of 2 hours, 15 minutes and ran most of the way alongside his friend, Mr. Babbitt, who finished in 2 hours, 16 minutes. This would suggest that, in some fashion, Mr. Conn treated the half-marathon as a competitive event.)

98Dr. Darcel’s testimony is consistent with his letter to Dr. Chiu in which he expressly stated that he counselled Mr. Conn "against marathon running which he was considering." Plaintiffs submit that the letter reflects advice that Mr. Conn should not run a marathon. Once again, with respect, I consider that to be an overly narrow parsing of that sentence. "Marathon running", in my view, connotes not merely the traditional 42 kilometer footrace, but any long-distance road race. A so-called "half-marathon" of 21 kilometers would also qualify as a long-distance race.

99Overall, I found Dr. Darcel to be a thoughtful, honest witness, who did his best to recall the events in question. His inability to recall with precision the specific words that he used on particular occasions does not, in my view, detract from his credibility or the reliability of his evidence. For the most part (although not always) he was non-argumentative; at times, however, he was defensive, which is understandable given the nature of the allegations made against him, and the fact that his record-keeping was minimal. That said, the complaint against Dr. Darcel is not based on the adequacy of his records, but on the sufficiency of his advice to Mr. Conn

100Overall, his evidence made sense; it was internally consistent. He was not, in my view, seriously contradicted on cross-examination. Most importantly, his testimony was logical and had a "ring of truth." Simply put, it is illogical that a cardiologist who had Dr. Darcel’s level of familiarity with Mr. Conn’s condition, would treat the news that his patient was training to run a marathon in any other fashion than the way Dr. Darcel described their exchange. Put another way, it is illogical that Dr. Darcel would advise Mr. Conn that it was acceptable to continue doing what he had been doing. While I acknowledge that he has an interest in the outcome of the litigation, I found him to be a credible witness.

101One point that gave me concern regarding the reliability of Dr. Darcel’s recollection was his testimony that he discussed with Mr. Conn his plan to participate in a half-marathon, and his advice that Mr. Conn should not do so. At the time of the visit, Mr. Conn was training with the intention of participating in the full marathon on October 16, 2005. It was not until after the appointment that Mr. Conn altered his plans and registered instead to run the half-marathon. It therefore does not make sense that Mr. Conn would have discussed the half-marathon during the appointment on August 2, 2005. As a matter of logic, Dr. Darcel’s evidence on this point cannot be accurate.

102Despite that inaccuracy, I do not consider that it detracts from the overall reliability of Dr. Darcel’s evidence. There can be no doubt that the focus of this case over the past 7 years has been on the tragic consequences of Mr. Conn’s participation in the half-marathon race. In the circumstances, Dr. Darcel’s erroneous recollection on that narrow point is perhaps understandable. I do not find it indicative of any intention on his part to mislead or provide false evidence to the court. Simply put, his recollection on that point is mistaken.

103Based on the foregoing analysis, I make the following findings of fact in relation to the discussion between Mr. Conn and Dr. Darcel on August 2, 2005:

(a) When Mr. Conn told Dr. Darcel about his running activities, Dr. Darcel told him he was doing too much and that, despite being asymptomatic, he should cut back and do significantly less;

(b) Dr. Darcel told Mr. Conn that he should not participate in distance running as he had and as he planned to do;

(c) Dr. Darcel warned Mr. Conn that the running in which he had engaged to date was too much exertion, given his heart condition;

(d) Dr. Darcel told Mr. Conn that significant exertion carried with it a risk of death; and

(e) Dr. Darcel told Mr. Conn to do moderate exercise.

104In arriving at the above findings of fact, I am acutely aware of the plaintiffs’ countervailing argument that it is illogical that Mr. Conn would proceed to participate in the half-marathon in the face of advice that he was engaging in a life-threatening exercise. Having declined to admit the evidence of either Mrs. Conn or Dr. Liu regarding their respective perspectives on whether or why Mr. Conn would have acted as he did in the face of Dr. Darcel’s advice (as I have found that advice to be) it is similarly inappropriate for me to engage in such speculation. I can only point to the past conduct of Mr. Conn in understating and downplaying the seriousness of his condition (all as detailed above) as reflective of the manner in which he responded to the advice he was previously given and the manner in which he conducted himself. Prior to the tragic outcome of the half-marathon, Mr. Conn had been completely asymptomatic. His decision to participate in the half-marathon despite Dr. Darcel's advice would be consistent with his past conduct and experience.

Did Dr. Darcel meet the standard of care?

105The answer to this question requires a review of the legal framework that underlies a claim in professional negligence, as well as an assessment of the evidence of the expert witnesses who testified at trial.

The legal framework of the standard of care

106To establish negligence, the plaintiffs must establish a duty of care exists, that there has been a breach of that duty and damage has resulted from that breach. Dr. Darcel does not challenge that he owed Mr. Conn a duty of care. The crux of this case is whether or not Dr. Darcel met the standard of care.

107The seminal case concerning the standard of care involving a claim for medical negligence is Crits v. Sylvester (1956), 1956 CanLII 34 (ON CA), 1 D.L.R. (2d) 502 (Ont. C.A.), affirmed by the Supreme Court of Canada, 1956 CanLII 29 (SCC), [1956] S.C.R. 991. In that case, the Supreme Court of Canada approved of the following passage articulated by the Ontario Court of Appeal at 508:

The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.

A doctor will have met the standard of care if he or she exercised the degree of care and skill which would reasonably be expected of an average physician in his or her field with the same experience and in similar circumstances: Crits v. Sylvester.

108More recently, in the case of ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at 693, the Supreme Court of Canada set out the standard of care as follows:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in the light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: [authorities omitted]

In this case, the applicable standard of care is that of a community cardiologist practising in 2005.

109An unfortunate outcome is not proof of negligence. It is improper to simply infer a breach of standard from the fact that there has been an unfortunate or unexpected result. As confirmed by the Supreme Court of Canada in St-Jean v. Mercier, 2002 SCC 15, [2002] S.C.J. No. 17 (at para. 53):

To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focussing on the result rather than the means. Professionals have an obligation of means, not an obligation of result.

110A physician should not be judged retrospectively or with the benefit of hindsight. Courts have repeatedly cautioned against the use of hindsight in assessing the care provided by medical professionals and the extent of the advice that a doctor must give. As held by Sopinka J. for the Supreme Court of Canada in ter Neuzen (at para 34):

[T]he conduct of physicians must be judged in light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence. As Denning L.J. eloquently stated in Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137, "[w]e must not look at the 1947 accident with 1954 spectacles". That is, courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge.

111As was observed by Gonthier J. for the Supreme Court in Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 (at para 28):

[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

112In their written submissions, the plaintiffs argue (relying on E.I. Picard and G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Carswell, 2007) at 349, and Joshi (Guardian ad litem of) v. Wooley, [1995] B.C.J. No. 113 (B.CS.C.)) that a physician has a duty to inform a patient about the status of their health and provide appropriate advice to manage risk. Where a physician gives advice, the physician must ensure that he gives the patient sufficient information to enable the patient to carry out the instructions. When a physician delegates to the patient the performance of some of the part of the treatment, there is a duty on the doctor to explain clearly what is expected of the patient and to give a warning as may be required by the circumstances. The physician must look at the special circumstances of the patient in giving any advice or instructions. A physician must consider the specific clinical situation of each patient and tailor advice accordingly. I accept that submission.

113At the same time, patients have a duty to act reasonably in their own welfare: see Picard et al at page 348. As the defendant submits (and I agree) the physician/patient relationship is a two-way street. A patient has a duty to participate fully and honestly in his or her own health care. In Wei Estate v. Dales, [1998] O.J. No. 1411 (Ont. Gen. Div.); affirmed, [2000] O.J. No. 2753 (C.A.) at para. 108-109 the trial judge stated:

108 The patient himself had a responsibility not only to take the medication as prescribed but to monitor his own signs and symptoms and to comply with the request for follow-up appointment.

109 The treating physician cannot be expected to follow-up every instruction given to a patient. The treating physician has the right to expect the patient will follow his or her instructions. If the patient disagrees with the doctor’s instructions, then he has a duty to advise the doctor.

The importance of expert evidence

114Expert evidence is generally required to establish the standard of care, the breach of the standard of care and that the negligent treatment was connected to the injury in question. Expert evidence must be considered in light of, among other considerations:

(a) the relevance of the training, experience and specialty of the witness to the medical issues before the court;

(b) any reason for the witness to be less than impartial;

(c) whether the medical standard propounded reflects the standard of the great majority of medical practitioners in the field in question; and

(d) whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial.

It is ultimately up to the trier of fact, having regard for all of the expert testimony, to determine the standard of care.

Assessment of the expert evidence

115Two expert cardiologists gave evidence regarding the standard of care of a cardiologist.

116The plaintiffs’ expert, Dr. David Fitchett, is a cardiologist practising at St. Michael’s Hospital in Toronto. The defence concedes that Dr. Fitchett is a well-qualified expert. Dr. Fitchett was qualified as an expert witness with expertise sufficient to provide opinion evidence in relation to the standards of practice of a community cardiologist particularly in connection with the evaluation and medical care to be provided to patients with aortic stenosis and the pathophysiology of aortic stenosis.

117Dr. Darcel called expert evidence from Dr. Peter Liu. Dr. Liu was qualified as an expert to provide opinion evidence in relation to the practice of cardiology and the diagnosis, pathophysiology, management and treatment of patients with heart disease, including those with congenital bicuspid aortic valves and aortic stenosis. Dr. Liu, too, is a well-qualified and trained cardiologist, practising at the Toronto General Hospital, at the University of Ottawa Science Institute and at the Ottawa Heart Institute. The plaintiffs do not dispute his qualification.

118Both experts testified at length about the practice and science of cardiology as it relates to aortic stenosis. It is apparent that each is a highly knowledgeable and experienced expert in the field. Both displayed a thorough familiarity with the science of aortic stenosis, in relation to its causes, diagnosis, effects, risks and treatment. Both presented their perspectives on the diagnosis and correct approach to the treatment of Mr. Conn’s condition as it presented on August 2, 2005, and whether Dr. Darcel’s care on that occasion met the standard of care.

119One of the primary duties of an expert witness is to be objective and to avoid partisanship. This duty is underscored by the contents of the Acknowledgement of Expert’s Duty form (Form 53) that the expert must complete under rule 53.03(2.1)7, which requires the expert to confirm the obligation "to provide opinion evidence that is fair, objective and non-partisan…." An expert witness must be neutral, objective, independent and not an advocate for a party: see Interamerican Transport Systems Inc. v. Canadian Pacific Express & Transport Ltd., [1995] O.J. No. 3644 at para. 61 (Gen. Div.); Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 1998 CanLII 14856 (ON SC), 40 O.R. (3d) 456 at para. 10 (Gen. Div.); Bank of Montreal v. Citak, 2001 CanLII 12419 (QC CQ), [2001] O.J. No. 1096 (S.C.).

120While it is challenging to decide between the evidence of two such well qualified experts, and which should be accorded greater weight, I have concluded that where there is a difference between the opinions of Dr. Fitchett and those of Dr. Liu on any material point, I prefer and accept the evidence of Dr. Liu. One of my principal reasons for doing so is that Dr. Fitchett had a marked tendency to depart from the neutral posture of an expert and instead become an advocate for the plaintiffs' case. Despite being reminded repeatedly that he should confine his responses to the questions asked, during cross-examination he often offered additional information that was not sought by the questioner, but was (in his view) supportive of the plaintiffs’ case; in doing so, he stepped out of the role of witness and assumed the role of advocate. As a result of Dr. Fitchett’s frequent advocacy for the plaintiffs’ position, I was left with doubt as to his neutrality and objectivity, which in turn leads to my reluctance to rely on his opinions.

121By contrast, the defendant’s expert Dr. Liu did not, in my view, stray into the role of an advocate for one side. He did at times provide additional information, but it was largely by way of explanation to assist in the understanding of the technical matters about which he was testifying. In contrast to Dr. Fitchett’s testimony, the extra information provided by Dr. Liu was not proffered with a view to bolstering the case for the party who called him; more often than not Dr. Liu merely sought to clarify or refine the question asked or qualify the detailed topics that he was discussing. Unlike Dr. Fitchett, I was not left with concerns regarding Dr. Liu’s partisanship and objectivity.

122Another concern regarding the neutrality or objectivity of Dr. Fitchett’s testimony arises from the fact that he prepared his reports – in which he concluded that Dr. Darcel did not meet the standard of care – without having read the transcript of Dr. Darcel’s examination for discovery. By contrast, Dr. Liu had regard to all discovery transcripts when preparing his opinions. Thus, Dr. Fitchett committed to certain conclusions before he had the benefit of reviewing the defendant’s own evidence. At no stage did he indicate, after having read the discovery transcript, that any of Dr. Darcel’s evidence had any impact on his assessment of the case. It may well be that nothing Dr. Darcel said on discovery could have had any effect on Dr. Fitchett’s conclusions, but on its face this appears to be something of a "cart before the horse" or dogmatic approach. Having fixed on a set of conclusions, Dr. Fitchett was reluctant to concede any points that did not support or align with them.

123Having regard to his relative neutrality and objectivity and also the approach he followed, I would attribute greater weight to Dr. Liu’s expert evidence.

124Most importantly, for the reasons set out below, the grounds on which Dr. Fitchett concluded that Dr. Darcel fell below the standard of care do not accord with the facts as I have found them. Dr. Liu’s conclusions are based on facts that are more closely aligned with the facts I have found. For this additional and fundamental reason, I would accord more weight to and accept Dr. Liu’s opinion that Dr. Darcel met the standard of care.

125According to Dr. Fitchett’s expert evidence, when meeting with a patient with Mr. Conn’s presentation on August 2, 2005, he would want to know what type of activities the patient was involved in and what activities was the patient proposing to do. If the patient had moderately severe or severe aortic stenosis and he learned that the patient intended to do activities which involved either prolonged or excessive physical exertion, he would counsel them against any form of activity which involved competitive activity, activity at a high level, and a prolonged level of activity.

126Having been asked to assume that Dr. Darcel told Mr. Conn to avoid severe exertion, to not run a half-marathon, but that he could continue to do what he had been doing to date (which was jogging distances of about 20 kilometres at one time) Dr. Fitchett opined that such advice would not meet the standard of care. Rather, Mr. Conn should have been given advice as to what level of activity he should be pursuing: in someone who has moderately severe to severe aortic stenosis, the advice should have been to exercise at a relatively low level. Dr. Fitchett also opined that Mr. Conn should have been advised to undergo a stress test.

127Dr. Fitchett conceded that if Dr. Darcel specifically told Mr. Conn that what Mr. Conn was doing to that point was too much and that he should cut back that advice would have been reasonable. He said the same in response to the assumption that Dr. Darcel had recommended 30 to 45 minutes of moderate activity in the nature of walking as opposed to running. He agreed that if Dr. Darcel had given that advice, he would have met the standard of care.

128On the facts as I have found them, when he met with Mr. Conn on August 2, 2005, Dr. Darcel did inquire regarding Mr. Conn’s past and proposed level of activity; he told him he was doing too much and that he should cut back and do significantly less; he told him to do moderate exercise; he told Mr. Conn that he should not participate in distance running as he previously had and as he planned to do; and Dr. Darcel told Mr. Conn that significant exertion carried with it a risk of death. In so doing, he met the standard of care as conceded by Dr. Fitchett and confirmed by Dr. Liu.

129As I have noted, a physician must look at the special circumstances of the patient in giving any advice or instructions and must consider the specific clinical situation of each patient and tailor advice accordingly. In the present case, Dr. Darcel had met Mr. Conn on numerous occasions. He knew him to be an educated and relatively sophisticated patient. His advice to Mr. Conn must be viewed and evaluated in that context. In my view, having advised Mr. Conn as he did, Dr. Darcel discharged his professional obligation properly and within the appropriate standard of care.

130In relation to the issue of the need for a stress test, Dr. Liu’s opinion was that none was necessary, in light of the fact that Mr. Conn had been asymptomatic in the face of having completed a 20 kilometer run. Dr. Liu further observed that to subject Mr. Conn to such a test would be to expose him to unnecessary risk. I accept that logic and analysis and, for that reason and the reasons previously expressed, I accept and prefer Dr. Liu’s evidence over the evidence of Dr. Fitchett on this point. It follows that Dr. Darcel’s failure to prescribe a stress test did not fall below the standard of care.

131There was considerable expert evidence regarding the finer points of the information disclosed by Mr. Conn’s July 12, 2005 echocardiogram, including the significance of the peak gradient and the calculated measurement of valve area at that time, and the appropriate delineation of and treatment for the degree of stenosis detected. That evidence, coupled with the undisputed evidence regarding Mr. Conn’s exercise tolerance, supports the conclusion that Mr. Conn’s stenosis would be classified as severe or moderately severe, yet asymptomatic. On the facts I have found, Dr. Darcel treated Mr. Conn on that basis. The information and advice that he imparted were based on that assessment and he met the standard of care.

CONCLUSION AND DISPOSITION

132I end where I began, by observing that this is a tragic case. A young family has been left without a vibrant and loving husband and father. Despite that unhappy reality, my duty is to assess the evidence, both factual and expert, and arrive at the conclusions to which it leads me. In this case, that evidence leads to the conclusion that the defendant doctor met the standard of care and cannot be held responsible for his patient’s untimely and unfortunate death.

133The action must therefore be dismissed.

134In relation to costs, I encourage the parties to resolve that issue directly. If they are unable to reach agreement, I direct as follows:

(a) the defendant shall serve his bill of costs on the plaintiffs, accompanied by written submissions within thirty days of the release of these reasons;

(b) the plaintiffs shall serve their response on the defendant within fifteen days thereafter;

(c) the defendant shall serve his reply, if any, within ten days thereafter;

(d) in all cases, the written submissions shall be limited to three pages, plus bills of costs; and

(e) the plaintiffs are invited to submit the bill of costs they would have presented to the court had they been successful in the action.

I direct counsel for the defendant to collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the defendant will assemble a single package for delivery as described above.

135Finally, I express my appreciation to all counsel for their thorough preparation and professional presentation of this case. Their conduct and care in representing their clients and their civility in dealing with the court, witnesses and one another were exemplary and I commend them.

___________________________ Stinson J.