Court File and Parties

COURT FILE NO.: 3846/11 DATE: 2019 04 10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KELSEY WOODS, a person under disability by her litigation guardian MICHAEL WOODS, KARLI WOODS, BERNICE BOOTH, AND MICHAEL WOODS, personally, Plaintiffs AND: DR. ALLAN JACKIEWICZ and DR. RONIT MESTERMAN, Defendants

BEFORE: Conlan J.

COUNSEL: Paul Cahill and Samantha Shatz, Counsel for the Plaintiffs Mark Veneziano, Dena Varah and Robert Trenker, Counsel for the Defendant, Dr. Allan Jackiewicz

Endorsement

Adverse Inference from the Failure to Call a Material Witness

The Nature of the Action

[1] The Plaintiffs, members of the Woods family, have sued the Defendant, Dr. Jackiewicz, for negligence.

[2] It is alleged that the Defendant obstetrician breached the standard of care in his management of Bernice’s pregnancy, with twins, in 1991, and that the said conduct caused one of the twins, Kelsey, to incur brain damage (cerebral palsy).

The Issue

[3] One of the contentious factual issues at trial is whether a treatment for twin to twin transfusion syndrome, which condition existed here, namely amnioreduction, was available and was being used at McMaster Hospital in Hamilton in July 1991, where Bernice attended and underwent a caesarean section to deliver the babies.

[4] The resolution of that factual issue will inform, though is not necessarily determinative of, the jury’s assessment of the case.

[5] During the pre-Charge conference with counsel at Court on April 9th, the lawyers for the Defendant asked that the Court instruct the jury that it may draw an adverse inference against the Plaintiffs due to their failure to call evidence at trial from someone who treated Bernice at McMaster Hospital, including the specialist who was consulted, Dr. Brennan. The jury would be invited, though not directed, to infer that the missing evidence would likely have been unfavourable to the Plaintiffs’ case, in other words, that it likely would have been that amnioreduction was not available at and was not a technique being used at McMaster Hospital in July 1991.

The Ruling

[6] I gave oral reasons for declining to give that instruction to the jury. In my view, the two Superior Court decisions relied upon by the Defendant were helpful but very different factually; they represented much more extreme examples of a striking omission to call a pivotal witness as compared to the situation that confronts us here. I commented at the time that the instruction was discretionary and had to take into account the balance to be struck between its value and its potential prejudice to the case for the Plaintiffs. I pointed out that the Court had been careful not to unduly prejudice the Defendant in a prior ruling as to whether a proposed Defence expert ought to be prohibited from testifying because of a concern about his alleged lack of impartiality. That ruling was in favour of the Defendant. I also indicated that counsel for the Defendant was free to comment on the absence of evidence from someone at McMaster Hospital on this issue in his closing address to the jury, which counsel for the Plaintiffs was content with.

Additional Reasons for the Ruling

[7] The purpose of this brief Endorsement is to supplement those oral reasons with reference to what is arguably the leading Ontario civil authority on point: the decision of the Court of Appeal for Ontario in Lambert v. Quinn, 1994 CanLII 978.

[8] That decision, though 25 years old, remains frequently cited across Canada. It has been followed in dozens of decisions, right up to and including 2019, in fact as recently as last month, and including those in medical negligence cases, and including those made by appellate courts.

[9] The penultimate principle of law to be taken from that decision is that the adverse inference is not to be drawn if the witness in question is equally available to, that is compellable by, both sides. As the Court of Appeal put it, with reference to the jurisprudence, the adverse inference against a party for failure to call a material witness is available only “when that party alone could bring the witness before the court”.

[10] There is no suggestion here by counsel for the Defendant that any potential witness from McMaster Hospital is not compellable at the instance of Dr. Jackiewicz. Rather, it is submitted that a treating physician of Bernice from McMaster Hospital, specifically Dr. Brennan, could not be interviewed or questioned or prepared by counsel for the Defendant in advance of giving evidence at trial.

[11] Assuming that is true, and assuming for the moment that the Defendant would have to call a treating physician as opposed to someone from McMaster Hospital who has personal knowledge of the general availability and use of amnioreduction at the Hospital in July 1991, that is not the test.

[12] I prefer the more restrictive approach taken in the line of cases that have followed Lambert, supra, than the interpretation advocated for by counsel for the Defendant, especially when the availability of amnioreduction at McMaster Hospital on July 7, 1991 is not determinative of any question to be answered by our jury, and where the availability of the technique generally at that time has already been the subject of much evidence at trial adduced by both sides. I say “not determinative”, though undoubtedly very important, because there is evidence before the jury, albeit scant and certainly not the focus of much attention by any trial participant, that is capable of grounding a finding by the jury that Bernice would likely have been transferred, a second time, to a facility in Toronto, such as Mount Sinai, if in fact amnioreduction was decided to be done and if in fact it could not be done at McMaster Hospital.

[13] I note that the Lambert, supra, decision does not appear to have been provided to (at least it is not cited by) the two Superior Court Judges whose decisions were filed by counsel for the Defendant: Keech v. Chang, 2009 CanLII 18293 and Sabanegh v. Habaybeh, 2010 ONSC 6572, nor was it filed or the subject of commentary before me. Out of fairness to counsel, I brought the decision to their attention and invited further submissions before issuing this Endorsement.

[14] Again, it is worth repeating that the Lambert, supra decision has been followed consistently between 1994 and 2019, and has been cited approvingly by the Court of Appeal for Ontario, the British Columbia Court of Appeal, the Nova Scotia Court of Appeal, the Prince Edward Island Court of Appeal, the Divisional Court in Ontario, and numerous trial level Courts in Ontario and many other jurisdictions across the country.

[15] Even if we water the language of the test down to say that an adverse inference cannot be drawn unless the evidence from the missing witness is peculiarly within the power of one side of the litigation to produce, that watered-down test is not satisfied here either.

[16] In the two decisions tendered by counsel for the Defendant, there was good reason to believe that the absent witness was crucial to and would otherwise be thought to be aligned with the interests of the party against whom the adverse inference was drawn.

[17] Neither of those findings could reasonably be made in our case. We already have evidence at trial, from both sides, about the availability of amnioreduction in Ontario and at McMaster Hospital, specifically, in the early 1990s. As far as the relationship between McMaster Hospital and the Plaintiffs is concerned, it is my understanding from the contents of the Trial Record, as amended, and Exhibit 1 (the Liability Document Brief) that the second Defendant named in the Statement of Claim, though not involved in the trial, Dr. Ronit Mesterman, is (or was) connected with the Hospital. Dr. Mesterman, in 2007, worked at McMaster Children’s Hospital, which facility is a part of McMaster University Medical Centre, where Bernice attended on July 7, 1991. Dr. Mesterman is (or was) a colleague of Dr. Brennan and other staff at McMaster Hospital, perhaps not in 1991 but certainly sometime after 1991. There is, at a minimum, an awkward relationship between McMaster Hospital and the Plaintiffs. That is a far cry from, as examples only, a parent of a party or a party’s long-time family physician, persons who presumably would be friendly to the party who has chosen, rather suspiciously, to not call him or her at trial, which choice gives rise to the real possibility of drawing an adverse inference.

[18] That last remark relates to the following. In the one decision filed by counsel for the Defendant, the absent witness was the father of a party who dealt with that party in payments advanced that were either to be found to be loans or gifts. That is more than a material or an important witness; that is a necessary witness. In the other case, it was two physicians who had treated the party for many, many years and who were clearly in the best position to comment on their patient’s mental health, which was a key issue at hand.

[19] Our case, with respect, is simply not at that level.

[20] Thus, although I appreciate the assistance of counsel for the Defendant in providing me with two helpful decisions on point, in addition to the oral reasons delivered at Court during the pre-Charge conference, I find that the law as applied to our facts does not justify the instruction sought by the Defendant. Hence, the exercise of my discretion to not give the requested instruction to the jury.

Conlan J.

Date: April 10, 2019