SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rhonda Hong-Ching Cheung and Ronald Chun-Pok Cheung, minors by their Litigation Guardian, Yuen Ni Cheung-Kw An, Raymond S.H. Cheung and the said Yuen Ni Cheung-Kw An personally, Plaintiffs
AND:
D. Samra, J. Ma, A. Joglekar, A. Madikiza, Rouge Valley Health System-Centenary Health Centre Site, G. Mitchell, S. Treuer, P. Taylor, J. Moses, A. Bartlay, M. Jacobs, A. Tranter, S. Reno, Defendants
BEFORE: Madam Justice Darla A. Wilson
COUNSEL: Hilik Y. Elmaleh and Michael Hershkop, Counsel for the Plaintiffs
Darryl A. Cruz, Gillian Kerr and Meghan S. Bridges, Counsel for the Defendants D. Samra and J. Ma
HEARD: May 15, 2018
ENDORSEMENT
1This is an action brought by the Plaintiff Carol Cheung against her treating doctors, the Defendants Dr. Samra and Dr. Ma, alleging negligence in the management of her pregnancy and the delivery of her baby, Rhonda. Dr. Samra was Carol’s obstetrician and Dr. Ma was the doctor on call at the hospital who delivered Carol’s baby by emergency Caesarian section (“C-section”) on April 22, 2006.
2The action proceeded to trial before me with a jury for 22 days commencing March 19, 2018. Counsel had agreed on damages so the issues of liability and causation were to be determined by the jury.
3Certain facts were not in dispute. Rhonda has been diagnosed with hypotonic cerebral palsy and she is profoundly disabled, requiring assistance with virtually all daily activities. She is wheelchair bound and is fed through a G-tube. It was not disputed that Rhonda has severe brain damage: namely, hypoxic ischemic encephalopathy (“HIE”).
4A critical issue at trial was whether the brain damage occurred in or around the time of her birth or whether it was unrelated to the events of her birth. Each party called a number of eminently qualified expert witnesses to offer opinions to the court on the standard of care and the causation issues.
Evidentiary Background
5Dr. Samra saw Carol at regular intervals during the course of her pregnancy. At the appointment on March 17, he noted the baby was in breech position and would have to be delivered by C-section, as Carol’s first baby was. The date of April 25 for the C-section was selected.
6On March 30, Dr. Samra diagnosed intrauterine growth restriction (“IUGR”), which means that the fundal height measurements were lagging behind the gestational age numbers such that the foetus was small. It was agreed by the experts who testified at trial that IUGR babies have to be managed and watched as there are certain risks associated with IUGR status. Dr. Samra ordered weekly non-stress tests (“NST”) and biophysical profile assessments.
7Dr. Samra assessed Carol on April 20, at which time the tests were all reassuring. He knew the C-section was set for 5 days hence. On April 21, Carol attended at the hospital for her scheduled NST. The nurse who conducted the NST felt it was not reassuring and Dr. Ma was the obstetrician on call so she was summoned. Another NST was ordered and Dr. Ma read the fetal heart strips. She felt the strips were reassuring and all other test results were good; she believed there was no indication of compromise of the foetus. As a result, she discharged Carol.
8The following morning, Carol presented at the hospital with some blood. Dr. Ma was on call and she assessed Carol and reviewed the fetal heart strip, which she felt was abnormal. As a result, she did an urgent C-section. During the course of the surgery, she noted the baby’s head was trapped in the pelvic area. Dr. Ma did a vertical incision to expedite delivery and she delivered Rhonda. The umbilical cord was around the baby’s body a couple of times.
9The baby was flat at birth with very low Apgar scores and she needed a great deal of resuscitation. After that, she was able to breathe on her own. Cord blood gases were taken and they were within the normal range. She was transferred to the Hospital For Sick Children (“HSC”) for assessment. An MRI done on April 26, 2006 was normal, as were the evoked potential tests. Rhonda was able to feed by breast and bottle and she was discharged home on May 3, 2006.
10In July 2006, Rhonda suffered her first seizure and she was admitted to the HSC for investigation and treatment. Following the onset of the seizures, Rhonda lost the ability to eat independently and to control her head. She has never recovered functionality.
11The experts who testified at trial on behalf of the Plaintiffs attributed Rhonda’s brain damage to events around the time of her birth. Placental insufficiency and occlusion of the umbilical cord in the period of time immediately prior to delivery resulted in a lack of oxygen to the baby which caused brain damage.
12The experts who were called by the defence were firm in their opinions that Rhonda did not suffer a brain injury resulting in damage at birth; while Rhonda’s case was perplexing, and may be due to a genetic disorder not yet identified by testing, it was not caused by anything Dr. Samra or Dr. Ma did or failed to do.
Trial Issues
13Counsel could not agree on the jury questions and as a result, I made a ruling in which I set out what form the questions for the jury would take.
14Counsel for the Plaintiffs wished the causation questions to read “Did the breach of the standard of care cause or contribute to the injuries of Rhonda?” (emphasis added).
15Counsel for the Defendants wished to include what was described as a “threshold question” prior to the jury answering the actual questions dealing with their findings on causation. The threshold question asked whether the Plaintiffs had established that Rhonda’s problems were “caused by hypoxic ischemic encephalopathy (or HIE) sustained in the perinatal period”.
16In oral reasons delivered on April 24, I ruled that the proper language for the causation questions was not “caused or contributed to” but rather the language employed by the Supreme Court in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, and other cases, asking whether but for the negligence would the Plaintiff have sustained the damage. Furthermore, I rejected the use of the threshold question prior to answering the causation questions. In my view, while the jury certainly had to address the question of whether Rhonda’s HIE was caused by anything that occurred in the perinatal period, the use of a threshold question was not warranted in the questions for the jury and was something to be addressed in my charge on the law, as part of the analytical process. The jury questions were finalized in accordance with my ruling.
17During the course of the trial, Mr. Cruz submitted that the Plaintiffs had failed to lead evidence as to what would have happened had Rhonda been delivered prior to April 22, 2006. He argued that it was incumbent on the Plaintiffs to call evidence to establish on a balance of probabilities that if Rhonda had been delivered earlier, it was more likely than not that she would not have brain damage, relying on the analysis in Salter v. Hirst, 2010 ONSC 3440, 97 C.P.C. (6th) 353, aff’d 2011 ONCA 609, 107 O.R. (3d) 236, leave to appeal ref’d (2012), 303 O.A.C. 388 (note). Mr. Cruz argued that it was not sufficient for expert witnesses to make bald statements that an earlier delivery would have made for a better outcome; rather, there had to be evidence about how the injury occurred and how the damage would have been avoided with an earlier delivery. It was agreed that this particular issue would be addressed, if necessary, after the jury verdict was received.
18In his closing address to the jury, the solicitor for the Plaintiffs told the jury that if they found causation, in answering questions 2B, they ought to “simply repeat the answer you’ve given in the previous question, meaning having diagnosed IUGR, Dr. Samra failed to advance the C section and deliver Rhonda by April 18, 2006.” Similarly, he told the jury with respect to the questions on causation for Dr. Ma, they ought to “simply repeat the answer in question 3B, Dr. Ma failed to deliver Rhonda on April 21, 2006.” See transcript of trial April 25.
19Following the closing address by the solicitor for the Plaintiffs, counsel for the Defendants objected to what the jury had been told about how they could answer the causation questions. I agreed that what Mr. Elmaleh had told the jury about the proper way to answer the causation questions was misleading and wrong in law. As a result, I included in my charge a correcting instruction to the jury specifically directed to what Plaintiffs’s counsel had told them to do. I instructed the jury that if causation was found, they could not simply insert the same answers for the particulars of causation as they did for the particulars of the breach of the standard of care. Rather, I advised the jury that they had to state how the negligence caused Rhonda’s brain damage and I provided direction on how the jury should deal with the causation issue and the analysis that needed to be undertaken.
20The jury was asked to answer questions, which they did. The jury’s answers, marked as Exhibit 82, are appended to these reasons as Appendix A. The jury found that both Dr. Samra and Dr. Ma fell below the standard of care. With respect to Dr. Samra, the jury found that he ought to have moved up the date of the scheduled C-section from April 25 to April 18, 2006. Question 1B required the jury to provide particulars of the negligence and they wrote, “Dr. Samra diagnosed Rhonda with IUGR, who was falling off the growth curve. He should have moved the C-section to April 18, 2006.”
21The jury found Dr. Samra’s breach of the standard of care caused Rhonda’s brain damage. In question 2B they were asked to answer how Dr. Samra’s breach of the standard caused Rhonda’s brain damage and they answered, “Dr. Samra’s failure to move the C-section to April 18, 2006 put Rhonda at higher risk which more likely than not caused Rhonda’s brain damage” (emphasis added).
22The jury found that Dr. Ma breached the standard of care by not delivering Rhonda on April 21, 2006. In response to question 3(b), which required the jury to provide particulars of the negligence, the jury wrote, “Dr. Ma should have delivered Rhonda on April 21, 2006 based on Rhonda being IUGR, her medical history and her NST results.”
23They answered that the breach by Dr. Ma caused the brain damage. Question 4B required the jury to provide answers to how the breach caused Rhonda’s brain damage. The jury answered, “Dr. Ma’s failure to deliver Rhonda on April 21, 2006 due to her being IUGR, her medical history and NST results more likely than not caused her brain damage” (emphasis added).
24Following the delivery of the jury verdict, counsel for the Defendants advised the court that he wished to make submissions on two issues: whether there was evidence on the causation issue upon which the court could enter judgment in accordance with the jury verdict (the Salter v. Hirst issue that he had raised previously as a concern); and, alternatively, whether the jury’s answers were responsive to the questions on causation and could found a basis for judgment. As a result, I invited counsel to provide me with written argument and briefs of authorities. I heard the motion brought by the Defendants pursuant to Rule 52.08 on May 15, 2018.
25I will address at this point the submissions of Mr. Elmaleh, the solicitor for the Plaintiffs, in his written materials that the procedure undertaken following the delivery of the verdict was inappropriate. I disagree. Mr. Cruz raised the issue of whether there was any evidence on which the jury could make a finding of causation prior to the end of the evidence. He was not obligated to bring a motion for a non-suit. This issue was canvassed in Salter v. Hirst and Eberhard J. dealt with the motion for lack of evidence following the jury verdict. I agree with this approach because the problem only arises in the instant case if the jury found a breach of the standard of care and causation. I indicated to counsel based on Mr. Cruz’s submissions that it was preferable to deal with the issue after the jury rendered its verdict, should it be necessary. Mr. Elmaleh did not advise that he disagreed with this approach.
26On another procedural point, Mr. Elmaleh submits that it was incumbent on the defence to raise the issue of the adequacy of the jury’s responses to questions 2B and 4B prior to the jury being discharged. He seems to suggest, although it is not articulated, that the jury ought to have been asked for clarification. This was not submitted at the time the jury’s verdict was received, but again, I disagree with this approach.
27Rather, I agree with the comments of Eberhard J. in Salter v. Hirst where she noted, at para. 7:
I further ruled that sending the issue back to the jury for further detail may be perceived by them as a direction to decide the matter differently. If instruction were given repeating my charge on causation, or emphasizing particular clauses, it would likely taint their discussion such that their further answer would be of little practical assistance in the question now before me and before any reviewing reader.
28While Eberhard J. elected to discharge the jury after she made her ruling on the defence motion, given the fact that the defence had submissions both on the lack of evidence issue as well as on the adequacy of the jury responses, I elected to discharge the jury and give counsel an opportunity to submit written argument on the issues.
29In my opinion, given that I had already provided a correcting instruction to the jury on causation, the dangers identified by Eberhard J. in Salter v. Hirst were increased in this case. In my view, recalling the jury to provide yet another instruction on answering the causation questions properly would have served no useful purpose.
Positions of the Parties
The Moving Defendants
30Mr. Cruz on behalf of the Defendants submits that the case must be dismissed pursuant to Rule 52.08(1) because the Plaintiffs failed to lead evidence that an earlier delivery would have led to a different outcome. While the Plaintiffs’s experts said that Rhonda ought to have been delivered prior to April 22, none of them testified about what difference to the outcome that would have made. Further, it is submitted that inferences cannot be drawn about what likely would have happened had Rhonda been delivered by C-section on April 18 or April 21 because there was no evidence from the experts on that point, although it was certainly available to the Plaintiffs to elicit that evidence from their own experts.
31In the alternative, Mr. Cruz argues that the answers of the jury on the causation questions are not responsive to the issues they were tasked to determine. Their answers do not provide the necessary answers to how the negligence led to the injuries, which is essential to the causation analysis. As such, the Defendants submit that the court must exercise its discretion pursuant to Rule 53.08(1)(c) and order a new trial.
The Responding Plaintiffs
32Mr. Elmaleh submits that there was “ample evidence” on which to found the jury verdict. The Plaintiffs’s experts testified that the brain injury occurred in the 30 minutes or so prior to birth which resulted from the fact Rhonda was IUGR. Thus, it was open to the jury to find that Rhonda should have been delivered earlier, on April 18, and if she had been, that she would not have suffered brain damage. Mr. Elmaleh argued that, to make the causal link, the jury was entitled to draw inferences as follows: Rhonda was IUGR which carried risks; such risks materialized because the pregnancy continued and the risks increased.
33In response to the alternative argument of the defence, Mr. Elmaleh submits that there was nothing inappropriate or misleading about what he suggested the jury do in his closing address. The jury identified IUGR as being the reason Rhonda needed to be delivered sooner and they found the failure to deliver earlier resulted in brain damage. He asks that judgment be entered in accordance with the jury’s answers.
Analysis
34Section 108(5)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that judgment may be entered in accordance with the verdict or the answers of the jury. While this is a discretion retained by the trial judge, it is only in the rare case that a trial judge would refuse to enter judgment in accordance with a jury verdict.
35Rule 52.08(1) provides as follows:
Where the jury,
(a) disagrees;
(b) makes no finding on which judgment can be granted; or
(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,
the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but 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.
36In Hill v. Church of Scientology of Toronto (1992), 1992 CanLII 7516 (ON SC), 7 O.R. (3d) 489 (Gen. Div.), aff’d (1994) 1994 CanLII 10572 (ON CA), 18 O.R. (3d) 385. 114 D.L.R. (4th) 1 (C.A.), aff’d 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, 84 O.A.C. 1, Carruthers J. set out the legal test for a trial judge to follow at p. 498: “a trial judge may refuse to accept the verdict of a jury only when she or he considers that there is no evidence to support the findings of the jury, or where the jury gives an answer to a question which cannot in law provide a foundation for a judgment” (emphasis added).
37In Salter v. Hirst, Eberhard J. confirmed that it would be only in the rare case that a trial judge would refuse to enter judgment in accordance with the jury’s verdict on the basis that there was no evidence to support it. As long as there is “some evidence” on which the jury arrived at their answers, the trial judge must enter judgment in accordance with the jury verdict. It is not for the trial judge to assess the reasonableness of the evidence or its persuasiveness. It matters not to the analysis whether the trial judge agrees or disagrees with the verdict.
The Causation Issue
38Causation is a complex area of the law. Juries regularly deal with cases with difficult issues of causation and it is appropriate that they do so. Indeed, the solicitor for the Defendants brought a motion at the outset of trial, before any evidence was called, requesting an order striking the jury on the basis of complexity. I dismissed the motion. It was renewed later in the trial and I again dismissed it.
39In Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660, 216 O.A.C. 268 (C.A.), leave to appeal ref’d (2007), 233 O.A.C. 399 (note), O’Connor A.C.J.O. set out a comprehensive list of principles governing striking out a jury notice. The court noted that the right to a trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons. See also King v. Colonial Homes Ltd., 1956 CanLII 13 (SCC), [1956] S.C.R. 528, 4 D.L.R. (2d) 561, at p. 533: “the right to trial by jury is a substantive right of great importance of which a party ought not to be deprived except for cogent reasons”.
40The complexity of a case is a proper consideration in determining whether a jury notice should be struck. Complexity relates not only to the facts and the evidence, but also to the legal principles that apply to the case. It is a reversible error for a trial judge to strike a jury notice on the basis that it would be too difficult to explain the law to the jury. Trial judges must know the law and to be able to explain it to a jury. See also Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665, 162 O.A.C. 186 (C.A.), at para. 70.
41I make reference to the issue of the propriety of the case being tried with a jury simply to underscore that counsel were alive to the necessity that the jury understood the issues they were to decide from the outset of the trial.
42I agree with the comment of the Court of Appeal in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, at para. 87, that “the causation doctrine prescribed by the Supreme Court in Clements must be translated into jury-accessible language.” In my view, that statement applies to both trial counsel and the trial judge. I advised counsel at several points during the course of the trial that it was our collective obligation to ensure the jury understood what they were required to do when answering the questions on standard of care and on causation.
43Although some of the medical terminology was difficult, the competing theories of causation were distinct and comprehensible. The Plaintiffs’s theory was premised on the IUGR status of the foetus and asserted that something occurred in the 30 minutes prior to birth that caused Rhonda’s brain damage. The defence theory acknowledged the IUGR issue, but asserted that apart from a difficult delivery, Rhonda was born without compromise and any problems she currently has are unrelated to the events around the time of her birth.
44The instant case is not one where there are multiple defendants involved, multiple potential causes and cumulative injuries, as discussed by the Court of Appeal in Sacks v. Ross. Counsel agreed that Dr. Samra and Dr. Ma each played separate roles in their treatment of Carol. Dr. Samra was her treating obstetrician and the allegations against him were different than those asserted against Dr. Ma, who was the on call obstetrician when Carol was at the hospital on April 21 and 22, 2006. After discussion, counsel agreed that the test to be used for the causation questions was the “but for” test.
45It is the duty of the trial judge to provide the jury with instructions on the law and how to relate the law to the evidence in the case. As the court noted in Sacks v. Ross, at paras. 81-84:
The trial judge plays a vital role in formulating jury instructions, civil or criminal, that help the jury navigate the complexity presented by the law and the facts. The trial judge’s duty is to be an educator and to instruct the jury on the law: D. Watt, Helping Jurors Understand (Toronto: Thomson Carswell, 2007), at p. 2. The primary purpose of jury instructions is to “explain the legal principles that jurors are to apply to reach their decision”: Watt, at p. 60. Instructions should be legally accurate and expressed in plain language, avoiding “legalese”, to enhance juror understanding: Watt, at pp. 82-83.
The trial judge must “strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible”: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 50. The trial judge’s duty is to “decant and simplify”: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 13.
Juries must be properly instructed: Jacquard, at para. 2, but a standard of perfection is not expected. Different trial judges are not likely to prepare identical sets of instructions, nor is that required. What is essential is that the substance of the issue be conveyed to the jury: see R. v. Grant, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 115; R. v. Henderson (2001), 2001 CanLII 4540 (ON CA), 145 O.A.C. 150 (C.A.), at para. 12.
The trial judge must isolate the critical issues in a case and tailor the charge to them: Rodgerson, at paras. 51-52…
46Counsel were provided with my draft jury charge and there was a pre-charge conference during which I reviewed with counsel my proposed instruction on the law of causation and medical definitions that I wished to include in my charge for the jury’s assistance. Apart from one error contained in the charge, counsel had no objections or comments on the proposed instructions dealing with the causation issue.
47As the court noted in Sacks v. Ross, it is standard practice in negligence actions for juries to provide reasons for their findings on negligence. In ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, 11 B.C.L.R. (3d) 201, at p. 702, Sopinka J. wrote:
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.
48In the instant case, counsel agreed that the jury ought to provide particulars for any findings on the breach of the standard of care and on causation. This is in accordance with the practice noted above and it enables the reviewing court to determine if the jury verdict is reasonable and grounded in the evidence, should that step be necessary.
The “No Evidence” Argument
49The case law is clear that for this argument to succeed, there must be a complete absence of evidence to support the jury verdict. To put it another way, the verdict must not have any evidentiary support: see Sandhu v. Wellington Place Apartments, 2008 ONCA 215, 234 O.A.C. 200, at paras. 10-11.
50There need only be an evidentiary basis for the conclusion reached by the jury for the trial judge to grant judgment. The law is clear that it is not for the trial judge to consider whether the jury’s verdict is the correct one.
51In determining whether there is any evidence to support the jury’s findings, the trial judge must “take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss”: Clements, at para. 46.
52While juries are instructed that they can draw inferences, there must be evidence from which the inferences can be drawn. Justice Eberhard dealt with this issue specifically in Salter v. Hirst, noting that the burden of proof of causation remains with the plaintiff at all times and any inference drawn must be rooted in expert evidence and not based on speculation.
53In Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, the court considered the issue of whether there was evidence to support the inference drawn by the jury. In doing so, the court noted that consideration must be given to the type of factual issue underlying causation and the kind of evidence the parties are able to bring forward. In certain cases, and in particular cases of professional negligence, there may be no evidence because of the actions or conduct of one of the defendants. Thus, in those circumstances, it would be unfair and impossible to require a plaintiff to lead such evidence. The instant case does not fall into this category.
54The expert evidence called by the Plaintiffs on causation was less than ideal, in my view. The testimony from the numerous experts called by the Plaintiffs lacked cohesiveness and specificity. In the instant case, the theory advanced by the Plaintiffs and espoused by their experts was that Rhonda was an IUGR foetus, a status which carried certain risks. As a result, she had to be monitored in the last stages of the pregnancy to avoid an adverse outcome. The expert evidence was that IUGR babies are at higher risk around the time of birth for a variety of concerns: abnormal fetal heart rate; asphyxia; the need for a C-section and HIE. Dr. Oppenheimer, the expert obstetrician called by the Plaintiffs, testified that if Rhonda had been born on April 21, most likely her brain damage would have been avoided; he did not elaborate or explain how that would occur.
55The neonatologist, Dr. Perlman, testified that in his opinion Rhonda’s brain insult causing injury occurred in the last 30 minutes prior to delivery. Dr. Hill, the expert pediatric neurologist stated that in his opinion the IUGR was caused by placental insufficiency and he said that he thought her “problems” were caused by compression of the umbilical cord shortly before delivery.
56I agree with the submissions of Mr. Cruz that much of the expert opinion on causation consisted of bald assertions or what I would describe as broad brush statements lacking in specificity. Mr. Elmaleh submits that defence counsel ought to have cross examined the Plaintiffs’s experts if he wished more detail to their opinions and that “the defendants’ decision not to do so was made at their own peril.” I reject this submission; the onus is not on the defence to elicit evidence to prove the Plaintiffs’s case. Rather, it is for the Plaintiffs to lead clear and cogent evidence upon which a properly instructed jury can make findings and answer the jury questions.
57The law is clear that causation does not have to be established with scientific precision and the court should adopt a “robust and pragmatic approach”: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, 107 N.B.R. (2d) 94. The Supreme Court has stated that the test for causation is not to be applied too rigidly: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. Nonetheless, the plaintiff has the onus of proving causation on a balance of probabilities.
58In Goodman v. Viljoen, 2012 ONCA 896, 299 O.A.C. 257, leave to appeal ref’d (2013), 327 O.A.C. 397 (note), at paras. 74-76, Doherty J.A., dissenting on a different point, elaborated on the proper approach to be undertaken in the analysis of causation:
74Whatever controversy there may have been in the case law was put to rest in Clements. The Chief Justice, in the course of summarizing the present law of causation in Canada, stated, at para. 46:
As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
75Nothing in the Chief Justice’s summary suggests that a different approach is to be taken to the evidence when the defence calls evidence relevant to causation.
76The robust and pragmatic approach describes the manner in which evidence is to be evaluated, not some special burden of proof: see Aristorenas, at para. 56. 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, as counsel for the appellant urges, 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.
59As I have indicated, there must be no evidence on which the jury could arrive at its answers to questions for the trial judge to refuse to grant judgment. That is a very low threshold. In Stilwell v. World Kitchen Inc., 2015 ONCA 770, 327 O.A.C. 146, the Court of Appeal reviewed the principles of law dealing with civil jury verdicts and stated, at para. 32-34:
32In considering these submissions, it is important to have regard to two well-developed and long-standing principles of law related to civil jury trials.
33First, the standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 49; Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 23.
34Second, a jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances: Malone v. Trans-Canada Airlines, 1942 CanLII 115 (ON CA), [1942] O.R. 453, at para. 25 (C.A). Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction. A new trial should be ordered only where the jury seems to have confused the issues at trial, it is doubtful whether the jury paid attention to the real point in issue, and the questions answered or unanswered leave the real issue in doubt and ambiguity: Jamieson v. Harris (1905), 1905 CanLII 71 (SCC), 35 S.C.R. 625, at para. 2; Graham v. Regent Motors Ltd., [1939] O.J. No. 163, at para. 9 (Ont. H. Ct. J.).
60Counsel for the Defendants submits that the Plaintiffs failed to lead any evidence at trial about what would have happened if Rhonda had been born prior to April 22, 2006. I cannot accept this submission. Both Dr. Oppenheimer and Dr. Perlman stated that had Rhonda been born even 30 minutes prior to the time that she was, she would not have suffered brain damage. I agree these opinions were not elaborated upon as they ought to have been and there were inconsistencies between the evidence of the various experts called by the Plaintiffs.
61There were many articles published in well-respected medical journals that were filed as exhibits at the trial. They included such topics as hypoxic ischemic brain damage in the newborn, IUGR babies, the utility of imaging in neonatal HIE and the relationship between neonatal encephalopathy and Cerebral Palsy. These articles were referred to extensively by the experts during their testimony.
62It was open to the jury to accept the evidence of Dr. Oppenheimer and Dr. Perlman in particular and find that Rhonda should have been delivered earlier than 7:07 on April 22 and had she been, she would not have suffered the brain damage. The jury could have accepted the expert evidence on cord compression or cord occlusion or placental insufficiency, even though it was lacking in detail. It is possible that inferences could have been drawn from the evidence, including the exhibits, using a robust, liberal approach to the evidence. Whether there was sufficient evidence to establish causation on a balance of probabilities is not for me to decide. I am not persuaded the verdict is devoid of any evidentiary support, which is what must be demonstrated on this motion.
63It is not appropriate on a motion pursuant to Rule 52.08 to weigh the evidence or to assess its reliability. In my view, there was some evidence, notwithstanding the fact that it was not elaborated upon, on which the jury could have found causation. That is sufficient to dispose of the argument of the Defendants that there was no evidence on which the jury could have found causation.
The Alternative Argument Advanced by the Defence
64I turn now to the alternative and more vexing argument submitted by the defence—that the jury made no finding on which judgment can be granted because they neither properly answered the questions on the particulars of causation, nor followed my charge on the law, and as a result, judgment cannot be entered and a new trial must be ordered.
65In a nutshell, the jury had to determine if Rhonda suffered HIE at the time of her birth and if so, whether anything Dr. Samra and/or Dr. Ma did caused HIE. Their task was to answer the questions on causation and to explain the “how” part of the equation. It was incumbent on the jury to explain the causal link in their answers.
66The area of causation has been the subject of much academic and legal commentary. As Professor Erik Knutsen stated in his article “Coping with Complex Causation Information in Personal Injury Cases” (2013) 41:2-3 Advoc. Q. 149, at pp. 150-51:
Negligence law operates as a fault-based system designed to compensate for injury and deter wrongful conduct. Causation in negligence law is the doctrinal mechanism which links the at-fault conduct of a defendant to the harm suffered by the injured accident victim. It is the bridge which connects the wrongdoing to the injury. …The standard default test for causation is the counter-factual “but for” test. The test asks: “but for” the defendant’s breach of the applicable standard of care, would the plaintiff have suffered some injury? The focus of the inquiry is on the breach of a societal standard of conduct, and the causal role played by that breach. …The “but for” test is not an easy test to apply…. [Footnotes omitted.]
67In another article, Professor Knutsen aptly noted, “Nothing in tort causes more confusion than causation.”: “Causal Draws and Causal Inferences: A Solution to Clements v. Clements (And Other Causation Cases)” (2011) 39:2 Advoc. Q. 241, at p. 241.
68In Snell v. Farrell, at p. 326, Sopinka J. defined causation as “the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation”.
69Juries are required to answer questions on causation in most cases of professional negligence. It is essential that the trial judge properly instruct the jury on the law of causation. The determination of negligence and the breach of the standard of care is a separate analytical process from that required to decide if causation has been made out on the evidence.
70In Sacks v. Ross, the court considered the proper approach to deciding questions of causation for a jury and set out the steps the jury should undertake. An essential component of this process is for the jury to explain how the breach caused the injury.
71There is no doubt that the closing remarks of the solicitor for the Plaintiffs were problematic. With respect to the causation question for Dr. Samra, question 2B, counsel stated, “I would ask that you simply repeat the answer you’ve given in the previous question, meaning having diagnosed IUGR, Dr. Samra failed to advance the C-section and deliver Rhonda by April 18, 2006.”
72For the causation question pertaining to Dr. Ma, question 4B, counsel said in his closing address, “Much like with respect to Dr. Samra, I would ask that you simply repeat the answer in question 3B, Dr. Ma failed to deliver Rhonda on April 21, 2006.”
73As I have noted earlier in these reasons, as a result of the improper remarks made to the jury by the solicitor for the Plaintiffs, I included in my charge a correcting instruction in which I told the jury that to insert the same answers on the particulars of causation as they did for the particulars of the breach of the standard of care would be incorrect. I specifically instructed them that in answering the particulars of causation, should causation be found, it was mandated that they stated how the breach of the standard or the negligent treatment caused Rhonda’s current disabled condition.
74In my charge to the jury on the issue of causation, I instructed them as follows:
“A finding that a person breached the standard of care does not automatically result in liability. Something else has to be proven, that is, a causal link between the breach of the standard of care by a doctor and the harm that was caused, in this case to Rhonda, specifically her brain damage. There must be a connection between the conduct in question and the injury that is the subject of a complaint. In other words, what has been identified as being a breach of the standard of care by a defendant must be a cause of the injury that’s the subject of the Plaintiff’s action. The legal principle is expressed in these terms: the Plaintiffs must prove on a balance of probabilities that but for the conduct that you have identified as breaching the standard of care, sometimes loosely called the “negligent conduct”, the injury would not have occurred. This is a factual inquiry having regard to all of the evidence….
You will be asked when you answer the questions to determine the issue of causation for each defendant if you found a breach of the standard of care. That means you must decide on the evidence whether but for the actions of each defendant, Rhonda would not have suffered the injury that she did, specifically the brain damage that she has….
As I’ve told you already, causation is established if the evidence satisfies you that it is more likely than not that Rhonda would not be in her current condition but for the negligent conduct of or breach of the standard of care by Dr. Samra. In other words, does the evidence prove that the negligent conduct that you have identified and summarized in your answer to question 1 was necessary to bring about Rhonda’s injuries? If you answer question 2A in the affirmative, then you go on to question 2B. How did Dr. Samra’s breach of the standard of care cause Rhonda’s brain damage? Please provide clear and specific answers. Please set out how or in what way the doctor’s breach of the standard of care caused Rhonda’s injuries. Now, in his closing remarks, Mr. Elmaleh stated that in answering the questions on causation, that is questions 2B and 4B, you could insert the same answers on the particulars as you did for particulars of negligence which are at questions 1B and 3B. That is incorrect. If you find causation members of the jury, that is if you are satisfied that a breach of the standard of care by either Dr. Samra or Dr. Ma or both caused Rhonda’s brain damage, then in answering questions 2B and 4B you must state how the negligence caused her current condition, or to put it another way, how the negligent treatment resulted in Rhonda’s current disabled condition….”
75Jury answers are to be read with a liberal interpretation in order to give effect to them: see Stilwell v. World Kitchen Inc., at para. 34. In the instant case, read in a generous fashion, the jury findings on causation with respect to Dr. Samra are that his failure to advance the date of the C-section put the baby at higher risk, which more likely than not caused her brain damage. In my view, that answer demonstrates that the jury ignored the charge on causation and specifically my instruction that they could not do what the solicitor for the Plaintiffs implored them to do and insert the same answer for causation particulars as they did for the answers on negligence. Their answer fails to explain how the negligence caused the brain damage from which Rhonda now suffers. Putting a person at risk of a bad outcome is not sufficient to establish causation; nor is increasing a risk of a poor outcome without specifying how that manifested itself in causing Rhonda’s brain damage. Causation must be proven on a balance of probabilities through expert evidence.
76The jury charge specifically dealt with the issue of risk or chance. The jury was instructed as follows:
However, it is not enough, members of the jury, for the Plaintiffs to prove that adherence to the standard of care would have given Rhonda a chance of avoiding the brain damage. You must be satisfied that but for the substandard conduct that you have identified it was more likely than not that Rhonda would not have sustained brain damage and developmental delay…….the Plaintiff must establish fault, that there was a breach of the standard of care that caused the injury to Rhonda.
77As the Court of Appeal noted in Salter v. Hirst, at para. 14, “There is no issue that ‘loss of a chance’ is not compensable in medical malpractice cases. The plaintiff must prove on the balance of probabilities that, but for the doctor’s negligence, the unfavourable outcome would have been avoided with prompt diagnosis and treatment.” See also Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737, 178 O.A.C. 142 (C.A.).
78The jury’s answer to question 2B demonstrates their reasoning was flawed; they concluded that being at “higher risk” caused brain damage, which is clearly erroneous. Even on a generous reading, this answer fails to set out the causal link between the breach (the failure to move up the delivery date) and the outcome (the brain damage). It fails to explain how, which is the essence of causation.
79The jury’s answer to the question on the particulars of causation for Dr. Ma was similarly flawed. It mirrors the answer to the question on particulars of the breach of the standard of care, as suggested by the solicitor for the Plaintiffs. Simply being an IUGR baby cannot be causative of brain damage; and neither can a baby’s medical history nor the NST results. The answers fail to identify the mechanism of injury or to put it differently, to say how the actions of Dr. Samra and Dr. Ma in failing to deliver the baby earlier resulted in Rhonda suffering brain damage at the time of her birth. Again, the jury followed the recommendations of the solicitor for the Plaintiffs and put the same answer for the particulars of causation as they did for the question on standard of care.
80The answers of the jury on causation do not explain the causal link between the negligence and the brain damage; they make no reference to the vast amount of expert evidence on such matters as the normal imaging following Rhonda’s birth, the normal cord gases at birth, the state of the placenta or the onset and effect of the seizures that commenced in July 2006. Furthermore, the evidence of the Plaintiffs’s experts was that the brain damage occurred in the 30 minutes prior to birth. Thus, the jury’s answer on causation, that the baby should have been delivered on either April 18 or April 21, 2006, fails to explain how the breaches of the standard of care they identified resulted in or caused Rhonda’s brain damage.
81A jury’s answers must be considered in conjunction with the charge that was given: see Prentice v. Thames Valley District School Board, 2015 ONSC 636, 70 C.P.C. (7th) 319, at para 80. The jury’s answers make it clear they did not follow the reasoning process that was explained to them in my charge. They seemingly ignored my charge on causation and specifically, they ignored my instruction that it would be incorrect to simply insert the same answers for causation as they did for breach of the standard of care. Instead, they chose to follow the suggestion, which was incorrect, of the solicitor for the Plaintiffs in his closing address.
82The jury’s incorrect answers on causation cannot be saved through the argument that the jury was entitled to draw inferences from the evidence and thus, to make their findings. While juries are entitled to draw proper inferences from the evidence, they cannot draw inferences without a basis in the expert medical evidence. As noted in Aristorenas v. Comcare Health Services (2006), 2006 CanLII 33850 (ON CA), 83 O.R. (3d) 282, 216 O.A.C. 161, at paras. 54, 64, 76:
Importantly, a robust and pragmatic approach must be applied to the evidence; it is not a substitute for evidence to show that the defendant’s negligent conduct caused the injury…
It is, therefore, a misapplication of the “robust and pragmatic” approach to make a finding or draw an inference of causation where no factors of the kind set out in Snell are present and the proper evidentiary foundation is absent…
Eschewing scientific certainty does not eliminate the need for any evidence to support causation. If causation can be inferred in the absence of any proof, then it is indistinguishable from reversing the burden of proof, something Sopinka J. clearly disapproved of in Snell.
83It is clear on the law that fact finders, while taking a robust and pragmatic approach to making a finding of fact or drawing an inference, cannot simply use common sense to “conjure up a proper basis for inferring that an injury must have been caused in one way rather than another”: Fairchild v. Glenhaven Funeral Services Ltd., [2002] 3 All E.R. 305 (U.K.H.L.), at para. 150.
84Jury trials are different than trials before a judge sitting alone. Jurors have no education in the law and no understanding of evidence or what must be proven for a party to be successful. Juries are susceptible to being influenced by what counsel or a witness says to them. That is why in opening remarks the trial judge tells the jury that what counsel says is not evidence and that if counsel says something to them about the applicable law and it differs from what the judge states, the jury is to disregard what counsel said and follow the judge’s instruction on the law.
85In my view, the advice of the solicitor for the Plaintiffs that it would be appropriate for the jury to fill in the answers on causation with the same answers they inserted on the questions for standard of care was not only incorrect in law but, in addition, suggested to the jury an analytical process that was flawed and which invited a misunderstanding of the legal concept of causation, and instead, intimated that there was no appreciable difference between the issue of standard of care and the issue of causation.
86There is a certain seductive quality to the idea that if a person is negligent and a bad result follows, then the negligent person must have caused the bad outcome. A juror with no legal education might find such a statement to be appealing and correct and, perhaps, fair. A simple example would be the driver who has consumed an excessive amount of alcohol and decides to drive home from a party. He approaches a red light and brings his vehicle to a stop. While he is in the stopped position, he is struck in the rear by the vehicle behind him, driven by the plaintiff who sustains injuries. While the first driver is definitely negligent, his negligence did not cause the damages, in this example, the injuries of the driver who rear ended him. There is no causal link, despite the negligence.
87It is worth noting that in the written submissions from the Plaintiffs, nowhere is it set out how the jury’s answers on causation particulars establish the causal link from the evidence that is necessary. Counsel fails to address the fact that the jury answers on causation mirror the answers on standard of care. Rather, counsel has chosen to submit that the jury accepted the Plaintiffs’s theory of causation over that of the defence theory, arguing that the risks of IUGR babies materialized in Rhonda’s case. With respect, that does not respond to the issue concerning the inadequacy of the jury answers. Conclusory statements do not explain how the negligence led to the damage. A theory of causation must be rooted in hard evidence from experts.
88We are left with answers that do not explain the causal link between the negligence and the harm. Simply put, the jury failed to explain how the failure of Dr. Samra and Dr. Ma to deliver Rhonda earlier than April 22 caused her injuries. They did not answer how her outcome would have been different, how her brain damage would have been avoided had there been no breach of the standard of care by the Defendant physicians.
89The ability of a trial judge to intervene once the jury has delivered its verdict is very narrow and is limited to circumstances where the judge is of the view there is no evidence to support the findings of the jury or where the jury’s answer to a question cannot form a foundation for judgment: see Teskey v. Toronto Transit Commission, [2003] O.T.C. 994, 3 C.P.C. (6th) 181, and Hill v. Church of Scientology of Toronto.
90I am mindful of the fact that “the Court is always loath to grant a new trial. The remedy is extraordinary, the remedy is expensive, but nevertheless the Court should not hesitate to act in the granting of a new trial if…justice requires it”: Gauthier v. Gauvin (1968), 1968 CanLII 308 (ON CA), 70 D.L.R. (2d) 665, 2 O.R. 809 (C.A.), at p. 666.
91In Stilwell v. World Kitchen Inc. the court discussed this precise issue and the comments at para. 34 are instructive:
A jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances [citation omitted.] Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction. A new trial should be ordered only where the jury seems to have confused the issues at trial, it is doubtful whether the jury paid attention to the real point in issue, and the questions answered or unanswered leave the real issue in doubt and ambiguity [citation omitted.]
92In my view, these comments are directly applicable to the instant case. Causation was a crucial, critical issue for the determination of the jury in this action. The answers of the jury are not responsive to the issue they were tasked to determine on the evidence: causation, how the brain damage was sustained. The questions required the jury to provide “clear and specific answers” of how the breach caused Rhonda’s brain damage. The answers given fail to answer the questions and the causation issue is not explained. Without the establishment of that crucial link between the breach and the outcome, causation cannot be made out.
93The causation issue was the central issue at the trial and the one that the vast majority of the expert testimony was directed at. The answers provided are contrary to the law, do not explain the causal link between the negligence and the result, and cannot form a foundation for judgment. At best, the jury was confused and conflated the issues of standard of care with causation. It is clear to me that they misunderstood what they were required to do in answering the causation questions. It is apparent they did not follow my instructions on how to deal with the causation analysis and chose instead to follow the recommendation of the solicitor for the Plaintiffs despite my correcting instruction.
94I pause to note that I do not understand why the solicitor for the Plaintiffs told the jury they could answer the questions asking for particulars of causation with the same answers as they did for the standard of care questions. At numerous points during the trial, I reminded counsel of our collective obligation to ensure the jury understood the issues they had to decide, as well as the medical evidence. In ruling on the proper questions for the jury, clarity was the central concern. Similarly, I reviewed my jury charge on the law concerning standard of care and causation with counsel to ensure they were in agreement with my instruction on these critical areas. It is perplexing to me in these circumstances why Mr. Elmaleh would make suggestions to the jury in his closing address which contradicted the instructions in my charge and could only serve to confuse the jury and invite them to decide the case on incorrect principles.
Disposition
95In my view, the answers of the jury on causation are fatally flawed and as a result, judgment cannot be entered in accordance with the jury verdict. I am mindful of the costs associated with ordering a new trial and it is with great reluctance that I have arrived at this conclusion. It is clear that a new trial is the only appropriate remedy in light of the jury’s answers on causation.
96If the issue of costs needs to be addressed, I may be contacted.
D.A. Wilson J.
Date: June 5, 2018
Appendix A