SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-401690

DATE: 20151120

RE: Jordan Sacks, Lisa Sacks, Ryan Sacks, by his Litigation Guardian Lisa Sacks, Alexis Sacks, by her Litigation Guardian Lisa Sacks, Emma Sacks, by her Litigation Guardian Lisa Sacks, Michael Sacks and Annette Sacks, Plaintiffs

AND:

Theodore Ross, Aliyah Kanji, Anna Maureen Bendzsak, Jeffrey Singer, John Doe I. John Doe II, Pamela Raye-Ilogu, X.Li.T. Hollowitch, Jane Doe I, Jane Doe II, and Sunnybrook Health Sciences Centre, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Duncan Embury and Daniela M. Pacheco, for the Plaintiffs

Frank McLaughlin and Dorothy Charach, Counsel for the Defendants, Theodore Ross, Aliyah Kanji, Anna Maureen Bendzsak and Jeffrey Singer, and William D.T. Carter and Anna L. Marrison, for the Defendants, John Doe I, John Doe II, Pamela Raye-Ilogu, X. Li. T. Hollowitch, Jane Doe I, Jane Doe II and Sunnybrook Health Sciences Centre

HEARD: November 13, 2015

ENDORSEMENT

[1] This is a medical negligence action brought by the Plaintiff Jordan Sacks against 4 of his treating doctors and 3 of the nurses arising from treatment he received while a patient at the defendant hospital in May 2008. Damages have been agreed upon and the action is proceeding on liability with a jury.

[2] While counsel agree on the legal test for causation, they do not agree on the wording of the questions to be put to the jury on causation; they also disagree on whether or not the jury should be asked to provide particulars of causation if that question is answered in the affirmative.

Positions of the Parties

Plaintiffs

[3] Counsel for the Plaintiffs submits that the Supreme Court of Canada has made it clear that in a medical negligence case, the Plaintiff must prove on a balance of probabilities that the defendant’s breach caused or contributed to the Plaintiff’s injury. However, the Plaintiff need not establish that the defendant’s negligence was the sole cause of the injury; it is sufficient that is was a cause. [emphasis mine]. Citing Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, Mr. Embury argues that as long as a defendant’s act was part of the cause of the Plaintiff’s injury, the Defendant is liable even though the act alone was not enough to create the injury. He submits that while the legal test as set out by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32 is “but for”, that is confusing for the jury, as it suggests to the jury that a Defendant’s tortious conduct must be the only cause when the law is that the conduct must only be a cause, and there might be multiple causes. Mr. Embury argues that the question to the jury ought to reflect what the Plaintiff has to prove in order to be successful: did the breach cause or contribute to the losses suffered by the Plaintiff?

[4] Counsel for the Plaintiffs argues that because this case involves an alleged delay in diagnosis, one defendant’s conduct will never be the sole factual cause of the injury. The law requires only that the Defendant’s conduct be a necessary contributing cause: Cottrelle v. Gerrard (2003), 2003 50091 (ON CA), 67 O.R. (3d) 737 (C.A.).

[5] Furthermore, counsel submits that the language of the Negligence Act, R.S.O. 1990, c. N.1, which states that “where damages have been caused or contributed to by the fault or neglect of two or more persons….”, ought to be incorporated into the jury questions. This case involves a number of defendants whose acts are alleged to have caused or contributed to the losses of the Plaintiff so the question to the jury should make it clear that it is sufficient if they find the conduct was a cause as opposed to the only cause.

[6] Mr. Embury wishes the question on causation to read, “Did the failure of ___________ to meet the standard of care cause or contribute to Jordan Sacks’ injury?”

[7] On the issue of providing particulars on causation, counsel submits that in the normal course, a jury is not required to give reasons for the answers they return. An exception to this general rule has developed in personal injury and medical negligence cases. Mr. Embury submits that there is no case law that states that a jury is required to detail the reasons for their answers on causation; simply because a practice has developed does not mean it is correct in law. There is no requirement that a jury be unanimous on how they arrive at an answer to a question. There is no principled reason to depart from the general rule that a jury need not give reasons for its verdict. Causation does not require the application of a professional standard so there is no reason to require particulars to ensure the jury understood its duty.

The Defendants

[8] Counsel submits that there is no reason to deviate from the language used by the Court in Clements when drafting the question to the jury on causation. Further, it is submitted, there is a danger that using the phrase “cause or contribute” could be misleading or confusing to the jury. When dealing with the issue of causation and what has to be proven, Clements does not use the words “cause or contribute”; the law is clear that the act must be a necessary cause.

[9] Counsel for the Defendants argues that the language in Clements could not be clearer and that same language ought to be used in the jury questions to avoid the possibility of confusion: “The test for showing causation is the “but for” test. The Plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury—in other words, that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the Plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.” [para. 8].

[10] On the issue of providing reasons for causation findings, counsel for the Defendants submit that the same logic behind asking the jury for particulars on the standard of care – i.e., to ensure that the jury understood the instructions and properly assessed the evidence – applies to causation. Causation is an element of negligence and is often based on expert opinion so it is necessary to know how causation was decided by the jury.

Analysis

Causation—the proper form of the questions

[11] Professor Erik Knutsen noted in his article “Clarifying Causation in Tort” (2010) 33 Dal. L.J. 153 at 154, “There is much confusion about causation in negligence law. Indeed, causation is the cause of much angst in Canadian legal spheres…” In my view, on complex actions where the jury must decide questions of standard of care and causation, it is the duty of counsel and ultimately the court to ensure that the questions for the jury are as simple and straightforward as possible.

[12] The Supreme Court of Canada in Clements summarized the current state of the law on causation as follows, at paras. 13-14:

“To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. …this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one of more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

“But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk….”

[13] While I acknowledge there are cases where the material contribution test for causation must be used, the case before me is not one of those rare exceptions. Rather, it is a medical negligence case being tried with a jury, where both doctors and nurses are sued and the Plaintiff has the burden of proving a breach of the standard of care and causation in order to be successful. In my view, there is no compelling reason not to use the language of causation from Clements and other cases when drafting the questions for the jury on causation. The legal test as articulated by the Supreme Court of Canada is clear: but for the defendant’s negligent act the injury would not have happened.

[14] The relationship between the ‘but for’ test described Clements and jury instructions was addressed by the Ontario Court of Appeal in Goodwin v. Olupona, 2013 ONCA 259. Epstein J.A. stated the following, at paras. 84-85:

“The proper test for causation, set out in Clements, at para. 8, is the “but for” test: ‘The plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.’ It is clear that the trial judge was well aware of the test and properly instructed the jury on it. In his charge the trial judge explicitly set out and repeatedly reminded the jury of the “but for” test. ..This type of wording was used every time the trial judge instructed the jury with respect to its consideration of whether a causal connection had been made out in relation to each defendant. This wording was also incorporated into the questions the jury was required to answer…”

[15] In my view, using the words “caused or contributed” is not the best way to phrase the causation questions. To use the words “caused or contributed to the injury” could be the source of confusion or misunderstanding for the jury. The fact that such language is reflected in the Negligence Act does not mean it ought to be employed in the jury questions; Causation is a factual determination for the jury, taking into account all of the evidence. I will instruct the jury on the law as it relates to causation and will use the “but for” test. I see no advantage to departing from the legal test as articulated by the Supreme Court of Canada when asking the jury to answer the questions on causation.

[16] The questions on causation will read as follows: If your answer to question 1(a) is YES, have the Plaintiffs proven, an a balance of probabilities, that but for the breach of the standard of care, the injuries of Jordan Sacks would not have occurred?

Causation—should particulars be provided by the jury?

[17] In ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, Justice Sopinka wrote, at para. 66, “To avoid the problem encountered in this case due to the inscrutability of the jury’s response to the question relating to negligence, and as a precaution to test the jury’s understanding of the instruction, the question to the jury with respect to negligence should require that the jury specify in what respects the defendant was negligent. In a case in which the general rule applies, the answer will reveal whether the jury has understood and applied the judge’s instruction that it must accept the standard practice as the legal standard against which the defendant’s conduct must be measured. Additionally, in a case which falls within the exception to the general rule and where the jury can fix the standard irrespective of the expert evidence, the answer to the question will ensure that the standard which the jury has adopted is not unreasonable or unknown in law.”

[18] While I am unaware of any jurisprudence specifically on this issue, and counsel were unable to direct me to cases where this issue had been considered, there are a number of appellate decisions which examine the questions asked of the jury and the responses given on medical negligence claims. This usually occurs in the context of an argument that the verdict was unreasonable or unsupported on the evidence.

[19] In Goodwin v. Olupona, 2013 ONCA 259, in considering whether a jury verdict was unreasonable and the jury charge proper on causation, the court examined the questions the jury was asked to decide. The questions incorporated the “but for” test and the jury gave answers to particulars on causation, which the court considered in coming to its decision on the reasonableness of the jury verdict.

[20] In Salter v. Hirst, 2010 ONSC 3440, aff’d 2011 ONCA 609, leave to appeal ref’d [2011] S.C.C.A. No. 503, the trial judge had to decide whether to enter judgment in accordance with the verdict of the jury when it was submitted that there was no evidence upon which the jury could find causation. In reviewing the evidence, the trial judge made reference to the questions to the jury which required them to provide reasons for their findings on causation. Salter is an example of the court engaging in an analysis of whether there was evidence to support the jury’s finding and it is unclear how this review could be undertaken appropriately if the jury had not provided reasons for their finding on causation.

[21] Section 108(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 expressly gives discretion to the trial judge to require the jury to answer specific questions. There is long- standing authority supporting the view that a judge can require the jury to provide specifics in their responses. In Spencer v. Alaska Packers Assn. (1904), 1904 23 (SCC), 35 S.C.R. 362, Nesbitt J. held that “particularly in actions of negligence, it is well for a trial judge to get from a jury, by questions to be answered, the grounds specifically upon which they find negligence.”

[22] In ter Neuzen the Supreme Court of Canada articulated why in negligence claims involving standard of care complexities and expert opinion, it was necessary that the jury provide answers to its findings on breach of standard of care: to ensure the jury understood and applied the judge’s instruction. I see no reason why the same concern would not apply to the jury’s deliberations on causation, which is a difficult and complex area of the law. The case before me is one in which it is alleged numerous defendants were negligent in different ways. The medical issues are complex and experts have testified with disparate opinions on causation. In my view, following the reasoning in ter Neuzen the jury ought to be required to provide answers to the particulars of causation, if causation is found.

D.A. Wilson J.

Date: November 20, 2015