SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-325350PD1
DATE: 20151209

RE: Indernil Surujdeo, elmer m. abear and IMELDA ABEAR, Plaintiffs

AND:

Dr. Donald Louis Melady, DR. AVRUM ARON SOICHER, DR. ZAID HUSHAM BEHIYA, DR. LAURIE LEIGH HILL, DR. J, DOE, NURSE J. DOE and william osler health centre – brampton memorial campus, Defendants

BEFORE: Justice Gans

COUNSEL:
Richard Bogoroch, for the Plaintiffs

Christopher Hubbard and Mira Novek, for the Defendants

HEARD: December 1, 2015

ENDORSEMENT

Introduction

[1] The jury in this matter, after almost three weeks of evidence and argument, deliberated for a little more than three days. It is evident from their questions of the court and counsel and the particulars they expressed in response to the specific jury questions posed that the members of the jury were not only engaged and serious about their assigned task, but had rolled up their collective sleeves, metaphorically speaking, to render a thoughtful decision.

[2] Counsel for the plaintiff moved after the verdict was rendered for judgment in accordance with the jury’s verdict. This motion was countered with a motion from the defendant doctors for an order dismissing the action without costs, or, in the alternative, for an order directing that the action be retried with another jury.

Test for not entering judgment in accordance with jury’s answers

[3] Subsection 108(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), states that “[w]here a proceeding is tried with a jury, (a) the judge may require the jury to give a general verdict or to answer specific questions… and (b) judgment may be entered in accordance with the verdict or the answers to the questions.”

[4] Despite the discretionary language (“may”) in s. 108(5)(b) of the CJA, Rule 52.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that the “verdict of a jury shall be endorsed on the trial record”, and case law is clear that a trial judge must enter judgment consistent with the jury’s verdict: see Loffredi v. Simonetti (1988), 29 C.P.C. (2d) 10 (Dist. Ct.) at paras. 13-17, and Kamyab v. Bruce, [2000] O.J. No. 2167 (S.C.J.) at paras. 9-15.

[5] There are limited exceptions. Section 52.08(1) of the Rules of Civil Procedure states that “…where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.”

[6] The common law provides an additional basis for a trial judge to disregard the jury’s answers – where “the jury gives an answer to a question which cannot in law provide a foundation for a judgment”: see McLean v. Knox, 2013 ONCA 357, 362 D.L.R. (4th) 664, at para. 20. Also see Hill v. Church of Scientology of Toronto (1992), 1992 7516 (ON SC), 7 O.R. (3d) 489 (Gen. Div.), at p. 498, rev'd in part on other grounds (1994), 1994 10572 (ON CA), 18 O.R. (3d) 385 (C.A.), aff'd 1995 59 (SCC), [1995] 2 S.C.R. 1130 (S.C.C.).

[7] In Salter v. Hirst, 2010 ONSC 3440, 2010 CarswellOnt 3940, aff’d 2011 ONCA 609, 107 O.R. (3d) 236, leave to appeal ref’d [2011] S.C.C.A. No. 503, Eberhard J. stated that the circumstances in which a trial judge will not enter judgment in accordance with the jury’s verdict on account of “no evidence” are rare:

15. Indeed, nothing could jangle more profoundly against the accustomed role of a Trial Judge sitting with a jury than to replace their finding with one's own view of the facts or set aside their verdict where there was some evidence to support it. This is so deeply ingrained in the administration of justice as we value it and the jury system as we respect it, that a Trial Judge's disagreement with jury findings, however often or seldom it may occur, is never known.

16. Justice Horkins [in Sandhu (Litigation Guardian of) v. Wellington Place Apartments, [2006] O.J. No. 2344 (S.C.J.)] restated this notion poetically by rejecting the moving party's suggestion that the evidentiary basis must be more than "a gossamer thread", "sheer or delicate". She concluded that for the moving party to succeed, there must be absolutely no evidence whatsoever:

It is clear from this test that the ability of the trial judge to intervene once the jury has rendered its verdict is "extremely narrow".

...As the case law confirms, there must be "no" evidence to support the verdict if the motion is to succeed. The verdict must be "devoid" of evidentiary support. Devoid means, "completely lacking".

[Footnotes omitted.]

[8] In Salter, at para. 19, Eberhard J. defined “no evidence” in Rule 52.08(1) in contrast to “some evidence”. That is, as long as there is “some evidence” on which the jury could have given certain answers, the trial judge should enter judgment in accordance with those answers, even if the trial judge would have found such answers “unreasonable because of, for instance, a [sic] entire lack of credibility or reliability in a witness who gave the evidence.”

[9] In Kamyab, at paras. 17-18, Campbell J. doubted whether a trial judge could weigh the evidence in deciding whether there was or was not “no evidence” to support the verdict.

Test for causation

[10] The parties agreed that the test for causation was the ‘but for’ test: see Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.

[11] In Clements, McLachlin C.J. offered the following guidance on applying the ‘but for’ test:

9. The test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. …

10. A common sense inference of ‘but for’ causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. …

[12] In Goodman v. Viljoen, 2012 ONCA 896, [2012] O.J. No. 6332 at para. 76, leave to appeal ref’d 2013 CarswellOnt 9421, Doherty J.A., dissenting on a different point, described the ‘but for’ inquiry as a “practical one”:

The robust and pragmatic approach takes into account the nature of the factual issues underlying the causation question and the kind of evidence that the parties are reasonably capable of producing on those issues. The approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the plaintiff has established causation on the balance of probabilities and not to a scientific certainty. Clearly… the robust and pragmatic approach does not countenance speculation or resort to common sense to determine issues that require expert knowledge. To resort to speculation or the misuse of common sense is to misapply the robust and pragmatic approach.

[13] See also Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, [2013] O.J. No. 1872 at para. 45.

Nub of argument

[14] When all was said and done, Mr. Hubbard, on behalf of the defendant doctors advanced two arguments: (1) that there was no evidence that the mechanical assistance that was necessary to prevent Mrs. Surujdeo’s untimely demise likely would have been provided during the window or time period in which she could have been transferred to a hospital which had the appropriate equipment; (2) alternatively, that there was no finding by the jury on which the judgment could have been granted.

[15] Mr. Hubbard, who was successful counsel on Salter argued, in the main, that the instant case was on all fours with Salter because the plaintiff in that case had failed to lead any evidence to establish one key link in the chain of causation, namely that the required surgery likely could have been performed within that window or time period in which assistance could have been provided.

[16] In the instant case, so the argument goes, the defendants argue that the plaintiff failed to lead evidence from either the expert witnesses or even the fact witness, Dr. Hill, as to whether or not the plaintiff could have been transferred to a hospital at which she could have received mechanical support, namely, an Intra-Aortic Balloon Pump (“balloon pump”) until she was put on a Ventricular Assist Device (“VAD”), within the window of opportunity, which might have run, on the evidence, to noon on February 21st.

[17] Mr. Bogoroch argued that the jury was entitled, on a worst case basis, to draw an inference from the facts that were lead that the link in the chain of causation had been established even though there was no ‘direct’ evidence on point. In this regard, he relies on the decisions of the Ontario Court of Appeal in both Gutbir (Litigation Guardian of) v. University Health Network, 2012 ONCA 66, 2012 CarswellOnt 1256 at para. 43, and Goodwin, at para. 68.

[18] He argued that for all intents and purposes, the Court of Appeal has softened the rigors expressed by the trial judge and affirmed on appeal in Salter. He also noted that Salter was rendered, in any event, before the Supreme Court of Canada decision in Clements.

[19] Respectfully to Mr. Bogoroch, I think he is reading far too much into the use of the word “direct” in the expression “no direct evidence of causation”. Put otherwise, he suggests that this expression means that that there was “no evidence” before the court in those two cases on the central issue as to whether or not a fetus in distress could have been delivered in a timely fashion.

[20] From my reading of the cases, I have concluded that there was indirect evidence to establish a connection between a timely intervention and the injury that was sustained by the infants in each of the cases cited. This means that there was ‘some’ evidence, in those cases coming from the experts and not the fact witnesses, from which permissible inferences could have been drawn.

[21] That having been said, for purposes of the matter now in issue before me, I am of the view that there was some evidence, taken as a whole, which would permit the jury to conclude that Mrs. Surujdeo would likely have received some form of mechanical assistance in another institution during maximally a 10 hour window.

[22] Respectfully to Mr. Hubbard, the evidence of Dr. Brankston on the operation of CritiCall, the provincial agency charged with the responsibility of organizing and transferring patients from one facility to another where appropriate treatment options are available, elicited during cross-examination, which I reviewed after the motion was argued, does not paint as bleak a picture on the manner in which patient transfers were undertaken at the relevant time, particularly in instances not involving neurological care. Indeed, I understood his evidence to suggest that a cardiology transfer was not a difficult process, which would pose significant problems.

[23] Furthermore, the evidence of Dr. Fitchett to which reference was made during argument indicated that a balloon pump and intensivist assistance were “readily available” in 2005 and were available at the Trillium Health Centre, which would have gone some way in aiding in the stabilization process until a VAD could have been secured at the TGH. He was of the further opinion, elicited again during cross-examination, that inter-hospital transfers to higher level cardiology units, like the one at St. Michael’s, occurred with some regularity.

[24] In my opinion, the above evidence taken in light of the other evidence led at the trial on the effects and use of inotropes and vasopressors, all of which were to be used with other mechanical assistance, provides the basis for a finding that the jury had some evidence to conclude as it did on the issue of causation.

[25] Insofar as Mr. Hubbard’s second argument is concerned, I agree with the articulation of the law expressed by my colleague Mr. Justice Grace in Prentice v. Thames Valley District School Board, 2015 ONSC 636, [2015] O.J. No. 437 on the judicial deference that should be applied to jury answers and verdicts and the fact that they should not be microscopically analyzed on an after-the-fact basis. To do otherwise, as was expressed in the other cases cited by Grace J., would undermine the integrity of the jury process.

[26] In any event, I am satisfied that implicit in the jury’s use of the words “treatment” and “treated” found in the causation particulars associated with the response to question 4(b), at least, was broad enough to include the modality suggested by Dr. Fitchett, which Mr. Hubbard correctly underscored included not only the use of stabilizing agents, but mechanical assistance as well.

[27] Notwithstanding the first rate presentation of the case throughout by Mr. Hubbard, including this motion, I am therefore of the opinion that the defendants’ cross-motion fails and the trial record will be endorsed accordingly. Judgment will issue in favour of the plaintiff in accordance with the jury verdict.

[28] I cannot leave this motion without making an observation, however, in respect of its timing. While I do not fault Mr. Hubbard for not moving for a ‘non-suit’ after the close of the plaintiff’s case, which carries with it the prospect of being put to an election, a most daunting of prospects, I am of the view that the preferred course to follow would be to bring the motion at the close of evidence and before the jury is addressed and charged. This timeline seems preferable because if the motion were successful, it would bring the case to an end without subjecting the jurors to the difficult task of deliberating, which in this case as I indicated at the outset, lasted just over three days.

GANS J.

Date: December 9, 2015