D’Aoust v. Youssef et al, 2022 ONSC 1872

Court File and Parties

COURT FILE NO.: CV-12-00000089-0000 DATE: 20220330

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TYLOR D’AOUST Plaintiff – and – VIVIAN YOUSSEF – and – BELGAGE PHARMACY Defendants

COUNSEL: Mark S. Grossman, for the Plaintiff Tyler Kaczmarczyk and Craig Edwards, for the Defendants

HEARD: November 8, 9, 10, 12, 15, 16 and 17, 2021 (by Zoom)

The Honourable Mr. Justice D.J. Gordon

REASONS FOR DECISION

1Tylor D’Aoust was involved in a motor vehicle accident on April 13, 2010, resulting in significant injury. In this action, he sues his pharmacist, Vivian Youssef and Belgage Pharmacy, alleging she failed to warn him as to the use of certain prescribed medications.

2This action was originally scheduled to be heard as a jury case at the long trial sittings in the Fall of 2019. In August of 2019, counsel agreed to bifurcate the trial, approved by the Regional Senior Justice Arrell. Liability was to be determined in the first trial; judge alone, initially scheduled for the sittings in February 2020. A second trial on the issue of damages, if needed, would then be assigned, with a jury.

3The first trial was adjourned when insufficient time was available and further adjourned due to the COVID-19 pandemic and resultant scheduling problems.

4In this trial, Tylor D’Aoust, his mother Joanne D’Aoust and his father Raymond D’Aoust testified. There was also a reference for Kristy D’Aoust, cousin to Tylor and niece of Joanne. For ease of reference, I will refer to these individuals by their given names.

A. FACTUAL BACKGROUND — OVERVIEW

5Tylor is presently thirty-one years of age. He resides in Gorrie, Ontario with his common law spouse, Paige Richard, and their child.

6Tylor was involved in a prior accident in 2006. He was prescribed oxycontin and oxycodone medications to address pain from his injuries. He became addicted to the drugs, not uncommon for regular users.

7In March 2010, Tylor had a mental health crisis and was delivered to the Woodstock General Hospital by police officers. He was admitted as an involuntary patient.

8On release from the hospital, Tylor was provided with a new prescription for oxazepam, a non-addictive drug to address anxiety and withdrawal from the prior narcotic medication.

9Tylor was visiting with Kristy on the day of the accident in April 2010. She resides in Bright. Tylor left this residence after lunch intending on driving to Clinton to pick up Ms. Richard, his then girlfriend, who attended high school. On Provincial Highway #8, Tylor’s vehicle crossed the centre line and collided with a transport truck.

B. EVIDENCE

(a) Prior Accident

10In 2006, Tylor was sixteen years of age. He attended high school and helped in his father’s steel business. The family lived on a rural property near Gorrie. Tylor was involved in an accident on this property. He was a passenger on an All-Terrain vehicle, being operated by a cousin. Both of his legs were broken. Several surgeries followed, including a knee transplant.

11Tylor was unable to return to school as a result of his injuries. Nor could he work, in a meaningful way, in the business. Tylor completed high school in a homeschool program. He would do some chores around his parents’ residence.

12The injuries caused significant pain, continuing after surgery and other treatment. Prescriptions for oxycontin and oxycodone were provided, either by his surgeon or family physician.

(b) Addiction

13Oxycontin and oxycodone are narcotic opiate drugs, now well known to becoming addictive. It is unclear when the medications were first prescribed. The pharmacy records start in 2008. Tylor was then filling prescriptions for these drugs.

14Tylor reported obtaining increased supplies of these mediations from his family physician, Dr. Dunning, by contacting her before his supply was depleted. He also described purchasing further supplies from relatives or street dealers. Tylor indicated taking twenty pills daily. He became addicted. While Joanne observed her son to be “craving” his medications, she was unaware of the addiction or that he was buying extra pills. Concerns had been raised about “drug dependence” by the orthopedic surgeon in February 2010.

(c) March 31, 2020 Crisis

15On March 31, 2010, Tylor was at the residence along with his sister and a cousin. Joanne and Raymond had gone to Kitchener for shopping. Tylor became involved in an argument with his cousin. The incident escalating quickly. The sister called Raymond. He instructed her to call the police. Tylor left the residence prior to the arrival of police officers.

16According to the police report, Tylor became enraged during the argument, chasing after his cousin around the house, smashing items and threatening to stab those present. The report also makes reference to prior mental health issues in 2008, including an involuntary admission to the Parry Sound Hospital and to the Penetang Mental Health Hospital.

17Police officers spoke to Joanne and Raymond, obtaining information regarding Tylor’s mental history. They contacted Tylor on his cell phone and, in doing so, determined his location by Telus cell phone triangulation. Police officers were then dispatched from the Oxford detachment. They apprehended Tylor at Kristy’s residence in Bright.

18Tylor was transported to the Woodstock General Hospital in the early hours of April 1, 2010. Tylor was described as being agitated on apprehension. He was admitted to the mental health unit as an involuntary patient on a Form 1. A Form 3 “Certificate of Involuntary Admission” was completed by the attending physician indicating Tylor was suffering from a mental disorder that likely would result in serious harm.

(d) Woodstock General Hospital

(i) Overview

19Tylor remained at the hospital as an involuntary patient until his discharge on April 8, 2010. Dr. Fernando presented a diagnosis of “personality disorder with drug abuse”.

20Tylor was initially placed in a locked observation room. He was not co-operative with hospital staff at that time. Tylor was transferred to a ward room when he settled down. He would meet with several psychiatrists and was regularly observed by nurses on duty. The existing medications continued but in decreasing amounts. The drug addiction became a primary focus for the medical staff.

21A discharge meeting occurred on April 8, 2010. Dr. Fernando, a nurse and other hospital staff met with Tylor, Joanne and Raymond. There was a discussion. Different versions were presented at trial. Tylor was released, provided with a prescription for new medication.

(ii) Dr. Fernando

22Dr. Fernando is the Chief of Psychiatry at Woodstock General Hospital. He saw Tylor regularly. Other psychiatrists had lesser involvement. Dr. Fernando reported Tylor’s admission to the hospital resulted from a report of violence in the home. The treatment plan, he said, was to take Tylor off the oxycodone, using oxazepam to address withdrawal symptoms and anxiety.

23Dr. Fernando indicated medications were discussed with Tylor and Joanne, including side effects and warnings, when Tylor was in the hospital. Meetings were said to occur daily.

24Tylor was recorded as being a difficult and demanding patient. For some reason, unclear at best, Dr. Fernando was of the view Tylor had been selling, not buying, his prior prescription medications.

25New prescriptions were provided, the purpose being to wean Tylor off oxycodone and replace with oxazepam on a temporary basis. Dr. Fernando also called Dr. Dunning, advising her not to prescribe oxycodone in the future for Tylor.

26The discharge meeting, according to Dr. Fernando and notes, began at 9:20 a.m. and ended at 10:30 a.m. He indicated his usual involvement would be to speak to the patient about treatment options and the medication being prescribed and to refer him back to the family physician.

27In this meeting, Dr. Fernando said he spoke to the family about getting Tylor off the oxycodone, the withdrawal symptoms that would occur and the medications being prescribed on discharge. Side effects of the medications, he said, were explained including drowsiness.

28Dr. Fernando had no recollection of Tylor and his parents being upset about his comments at the discharge meeting or that they left the meeting abruptly.

(iii) Tracy Brouwer

29Tracy Brouwer is a registered practical nurse, employed in the mental health unit at Woodstock General Hospital. Nurses would regularly attend with Tylor when he was a patient in the hospital, delivering medications and recording observations.

30Ms. Brouwer was present at the discharge meeting, recording the event in her “progress notes”. She recorded this meeting on April 8, 2010 as beginning at 10:00 a.m. and ending at 11:25 a.m. Her notes are as follows:

Family Meeting — Parents both present at the moment — Discussed events leading up to admission — Clarification — Mother upset about family Dr. giving Tylor oxyo — discussed with parents that we can only do so much — Explained withdrawals for oxy’s & the meds to be prescribed — Discussed anger & impulse issues & ways to control pain & pain management clinic — pt. & family were thankful.

31Ms. Brouwer also met with Tylor to complete an “Inpatient Facesheet and Discharge Care Plan” document. This form reveals the discharge occurred at 11:20 a.m. It was signed by Tylor and Ms. Brouwer. The document refers to scheduled appointments for Narcotics Anonymous, Dr. Singh and the family doctor. The medications on discharge were recorded, including:

Oxycodone — 5 mg — twice daily for 1 day — then discontinue Serax [oxazepam] — 15 mg — three times daily for two days, then two times daily for two days, then discontinue.

32Further, as to the medications Ms. Brouwer checked the box “script given”. Ms. Brouwer delivered the prescription to Tylor after the document was signed.

33Ms. Brouwer stated the new medication would have been discussed at the discharge meeting as she had recorded it. She also indicated there would have been a discussion with Tylor when oxazepam was first provided to him several days earlier.

34Ms. Brouwer had no recollection of Tylor and his parents ending the discharge meeting abruptly. Had such occurred, she said, it would have been recorded in her notes. Ms. Brouwer could not recall why she recorded the parents as being present at the meeting as “at the moment”.

(iv) Family Version

35Tylor denied seeing Dr. Fernando regularly. The only meeting, he said, was on discharge. Tylor acknowledged Dr. Fernando coming to the door of the observation room. He reported Dr. Fernando accusing him of selling prescription drugs. Tylor did not like Dr. Fernando, indicating he made racist remarks to the physician. Tylor was of the view he did not receive help from hospital staff as he had expected for the drug addiction.

36Tylor, Joanne and Raymond described the discharge meeting as lasting fifteen to twenty minutes. Joanne agreed with Ms. Brouwer’s notes regarding prior events, being upset with Dr. Dunning and the explanation regarding withdrawal from oxy’s. She disagreed with the other items as recorded.

37They understood Dr. Fernando to be accusing Tylor of selling prescription pills. They were upset and say they got up and left the room.

38Raymond had little recollection of the discussion at the discharge meeting. Tylor and Joanne said there was no discussion of the new medications, nor any warnings. Joanne understood the new mediation was a “blocker”, to help Tylor to detox. Tylor made reference to the pills as to help him get off his addiction.

39None of the family members made inquiry about the medication. Joanne indicated there was no opportunity to do as so as Dr. Fernando was talking violence, not addiction.

40Joanne was adamant no warnings were provided by Dr. Fernando or Ms. Brouwer. If they testify such were discussed, Joanne said they would be “lying”.

(e) Prescription Filled – April 8, 2010

41Following his release from Woodstock General Hospital, Tylor travelled with Joanne to Belgage Pharmacy in Kitchener. Tylor remained in the vehicle. Joanne entered the pharmacy and presented the prescription. She spoke to Ms. Youssef, the pharmacist, and left with the medication.

42The evidence pertaining to the conversation between Joanne and Ms. Youssef is of critical importance to the issues in this case. Their versions differ.

43There is no dispute Joanne was authorized as Tylor’s agent to obtain his medications at this pharmacy. He made reference to signing a document in this regard some time ago. Joanne regularly picked up Tylor’s medications, sometimes alone and, on other occasions, with Tylor present.

44The D’Aoust family had been attending at Belgage Pharmacy to fill prescriptions for many years. The pharmacy was located in the same building as the office of their family physician, Dr. Dunning. Ms. Youssef was well aware of Tylor’s medication history.

45Joanne reported informing Ms. Youssef as to the recent events pertaining to Tylor’s hospitalization. She went on to say there was no discussion about the new medication, oxazepam, nor were any warnings provided by Ms. Youssef as to its use. Joanne indicated there were no warning labels on the pill vial and no literature was provided about the pills by the pharmacist.

46According to Joanne, the only information she had been provided was that the new mediation was to help Tylor get over his addiction. This knowledge came from the hospital.

47Ms. Youssef had no specific recollection of the events on April 8, 2010. She had known Tylor and Joanne for many years at this point. Ms. Youssef knew Tylor had been injured in a prior accident and his recent medications were to treat his resultant pain.

48Ms. Youssef indicated Joanna frequently expressed concern about her son and would ask questions about Tylor’s medications.

49By way of background, Ms. Youssef has been a licensed pharmacist in Canada since 1999. She previously completed a five-year program in pharmacy at the University of Alexandria. Ms. Youssef emigrated to Canada in 1997 and attended to the necessary requirements for accreditation as a pharmacist in Ontario. She was employed at various pharmacies until 2004 when she purchased Belgage Pharmacy. This is an independent pharmacy, the primary function being to dispense medication.

50Ms. Youssef employs two pharmacy assistants. Their role is to receive the prescription from the patient, obtain the stated medication, and complete administrative work. Ms. Youssef, as the pharmacist, was responsible for dispensing the medication. She would review the work of her assistant, meet with the patient and then deliver the medication.

51As she had no independent recollection of filling the prescription on April 8, 2010, Ms. Youssef described her usual practice.

52In 2010, Belgage Pharmacy used a software program. After the assistant entered the information from the prescription, this program would result in the printing of prescription labels for the pill vial and for her records, warning labels for the vials, if required, and information sheets pertaining to the particular medication. The assistant would place any warning labels on the vial.

53Ms. Youssef, after reviewing the assistants’ work and being satisfied all was in order, would then call the patient to the counter. Ms. Youssef reports a conversation occurs with the patient at this point, described as counselling, particularly for new prescriptions. At the outset, Ms. Youssef would inquire as to why the medication was prescribed so that she could determine it was appropriate. She would then explain the use of the medication and the directions from the physician as well as describe any side effects and warnings, namely what to do or not to do depending on the particular drug.

54After completing her presentation, Ms. Youssef said she would ask the patient if there were any questions.

55Ms. Youssef described the purpose of counselling as ensuring the patient receives information and understands what the medication is, its purpose, what to expect for side effects and any necessary warnings.

56If warning labels had been printed, Ms. Youssef indicated such would be placed on the pill vial by the assistant.

57After completing counselling, Ms. Youssef would deliver the medication and the information sheet to the patient. This sheet, she said, describes the medication in simple language, how to use it and any side effects. Ms. Youssef described the information sheet as being a supplement to verbal counselling and as resource for patients who may not remember all of the information she had provided. Ms. Youssef also referred to the warning as an extra precaution for the patient. Some labels would refer to drowsiness, not to use with alcohol, not to operate a vehicle or not to use if pregnant.

58The last step in the process, as described by Ms. Youssef, was to retrieve the hard copy and check the box for counselling so that there is a record of the event. Her practice was to mark a circle around counselling, if provided, and place her initials on the form. The hard copy would be placed in the patient’s file.

59As to a prescription for oxazepam, Ms. Youssef indicate the software program would result in warning labels being printed for drowsiness, use care in operating a vehicle or machinery and not to drink alcohol. The information sheet, she said, would identify the use of the medication for treating “anxiety” or “withdrawal”, possible side effects of “clumsiness, dizziness, drowsiness, headache, lightheadness, stomach upset, unsteadiness or weakness”, with a caution “do not drive, operate machinery or do anything dangerous until you know how you react to this medicine”. Ms. Youssef presented sample labels and an information sheet for oxazepam in evidence. Counselling, she said, would have included those side effects and warnings.

60When, as here, it is not the patient presenting the prescription, Ms. Youssef described her usual practice as providing the same information as above to the agent. Ms. Youssef reported Joanne as regularly attending Belgage Pharmacy, either with Tylor or alone, to obtain prescribed medications.

61Ms. Youssef presented a copy of the original prescription from the doctor at Woodstock General Hospital and the hard copy of the prescription labels printed at her pharmacy, both dated April 8, 2010. The prescription was for:

(i) oxycodone — 5 mg. — 2 pills — take 1 tablet twice daily for 1 day, then discontinue; and (ii) oxazepam — 15 mg. — 10 pills — take 1 tablet three times daily for 2 days, then take 1 tablet twice daily for 2 days.

62On both of the hard copies, Ms. Youssef circled “yes” for counselling and placed her initials on the form. Counselling was provided for the oxycodone, she said, as it was a new prescription, at a lesser strength than prior, and for a new purpose. Counselling was required for oxazepam as it was a new prescription.

63With respect to the re-fill prescriptions, Ms. Youssef reported the same process being followed as with new prescriptions, save that an information sheet is not printed and counselling only involves speaking to the patient, or agent, to ensure the medication is working or if there are any concerns.

64Ms. Youssef relies on her usual practice as to counselling, warning labels and information sheet as to dispensing the medications for Tylor on April 8, 2010. She rejects the allegation by Tylor and Joanne that such counselling did not occur or that the other items were not delivered. Ms. Youssef stated she complied with her professional obligations as set out in the standards of practice.

(f) April 9, 2010

65Joanne called the family physician, Dr. Dunning, on April 9, 2010 as Tylor was still dealing with anxiety and complaining of pain and there were not enough pills for the weekend.

66Dr. Dunning had been Tylor’s physician since his birth. Following the telephone conversation with Joanne, Dr. Dunning called the doctor at Woodstock General Hospital regarding Tylor’s medications. Thereafter, she delivered a prescription to Belgage pharmacy for oxazepam and toradol, a new medication for pain.

67Dr. Dunning advised there was a discussion with Joanne about the medications, including a warning of “GI risk”, or upset stomach, from toradol. Joanne said no information was provided by Dr. Dunning.

68Joanne attended at Belgage Pharmacy that day to fill the new prescription. She indicated Ms. Youssef explained toradol could cause stomach bleeding but no other information was provided. Joanne also said there were no warning labels on either pill vial.

69Ms. Youssef recorded the new prescription from Dr. Dunning as for oxazepam, toradol and losec, the latter to prevent upset stomach caused by toradol. The oxazepam was a re-fill for five pills to last one day. On the hard copy she wrote “B4”, meaning counselling had been provided previously. The toradol was for three days. Ms. Youssef also endorsed “B4” on the hard copy, saying it may have been similar to a prior medication for pain.

(g) April 11, 2010

70On Sunday, April 11, 2010, Tylor drove to Listowel, accompanied by Ms. Richard. The trip, he said, took about thirty to forty minutes each way. They had dinner at McDonald’s and returned to Gorrie. This was the first occasion Tylor had operated a motor vehicle since being apprehended by police officers on March 31, 2010.

71Tylor reported having no difficulty in driving on April 11, 2010. Ms. Richard agreed. Joanne reported giving permission to Tylor to drive to Listowel.

72Tylor was not asked if he had taken any medication on April 11, 2010. However, Joanne stated she delivered the pills to Tylor as directed on the prescription label. Tylor said he took all the pills as provided by his mother.

(h) April 12, 2010

73During her telephone conversation with Joanne on April 9, 2010, Dr. Dunning scheduled an appointment for Tylor on April 12, 2010. Tylor and Joanne attended at the doctor’s office that day. Joanne drove.

74Dr. Dunning was aware of Tylor’s hospitalization in Woodstock, having previously received a report from Dr. Fernando. On this appointment, there was a discussion about the recent events. Joanne provided more detail.

75Dr. Dunning provided a further prescription to re-fill oxazepam and toradol, both to be taken “as required”.

76In her notes, Dr. Dunning recorded the discussion as follows:

“April 12, 2010 off all meds now tking torado only still has pain slept last night feels great today is with moM and both fee things arge good will stop toradao and use prn only as will get gi upset will take tylenol arthritis tid otc Mom will take 5 Serax and use if severe anxiety or insomnia will stay home with mom not go to to previous hangouts for drugs etc admits was buying drugs on street and using them alot says will stay away from extended family who use drugs and live with parents not going out much and will keep it that way discussion up to him to keep drug free is to see Dr Singh tomorrow for psychiatric consult and meds script to Mom to control toradol for severe pai and serax if insomnia Mom says she will be in charge of meds and monitor”

77Joanne agreed that Dr. Dunning’s notes were accurate, but with two exceptions:

(i) the reference to “off all meds now” was only regarding the prior narcotics; and (ii) there was no discussion about the side effects or warnings, despite the reference “script to mom”.

78Dr. Dunning agreed with Joanne’s statement as to narcotics being discontinued. Toradol was a replacement for pain while oxazepam was to be used as required for anxiety and insomnia.

79Dr. Dunning described “script to mom” as a refence to explaining the side effects of the medication and a warning as to drowsiness, not to drive a vehicle and not to drink alcohol. This “script”, she said, was her usual practice.

80When confronted with the anticipated evidence of Dr. Dunning, Joanne denied any information was provided and that if Dr. Dunning testified there was, she would also be “lying”.

81Joanne and Tylor went to Belgage Pharmacy after the meeting with Dr. Dunning. Ms. Youssef asked Tylor how he was doing. He replied that he was fine. The medications were dispensed in accordance with the prescription.

82Joanne reported there was no discussion with Ms. Youssef about the medications on April 12, 2010. On the hard copy of the prescription there is no reference to counselling. Ms. Youssef said it was not required on this occasion as counselling was provided previously.

(i) April 13, 2010

83On April 12, 2010, Joanne travelled to Bright. She spent the night at Kristy’s residence.

(i) Early Hours

84Tylor was up early on April 13, 2010, as he had an appointment with Dr. Singh in Kitchener. Ms. Richard reported there was nothing unusual regarding Tylor’s behaviour or demeanour that morning or the day before. She also said he appeared to be in a better condition than in the prior week. Ms. Richard left the residence, travelling to Clinton for school.

85Tylor drove to Kitchener, meeting his mother at Dr. Singh’s office. His appointment was at 10:00 a.m. Tylor indicated the trip from Gorrie took approximately fifty minutes.

(ii) Dr. Singh

86Dr. Singh is a psychiatrist. Tylor was referred to Dr. Singh in 2009 by Dr. Dunning to address his depression and post traumatic stress disorder resulting from the injuries sustained in the accident in 2006. Sessions were scheduled monthly with Dr. Singh.

87Tylor and Joanne advised Dr. Singh as to recent events, including the hospitalization in Woodstock, the discontinuance of oxycontin and oxycodone and as to the current medications.

88Dr. Singh recorded the following regarding this session:

“April 13/2010 Tylor was seen along with his mother. They indicated that they won’t be seeing Kathy anymore as a counsellor. He was admitted to Woodstock Hospital and they have slowly reduced and discontinued his Oxycontin. His mother seemed to be expressing some anger towards Dr. Dunning for prescribing all the medications for all this time but I also reminded them that even I asked Tylor to reduce that on several occasions but Tyolor was quite demanding and insistent to keep taking those pills. At present, he is taking Progabalin 150mg b.i.d., and Ozazepam 15mg q.h.s. p.r.n. While he was in the hospital his Cipralcx and Amitriptyline were also discontinued. I’m going to see him without those medications for the time being and I’ll see him again in 2 weeks. At the present time he seemed quite stable and comfortable. He looked pleasant, relaxed and denied any problems”.

89Tylor acknowledged Dr. Singh’s notes were accurate.

(iii) Drive to Bright

90After leaving Dr. Singh’s office, Tylor and Joanne proceeded to Bright in separate vehicles. The trip from Kitchener took approximately thirty-five minutes. Joanne arrived at Kristy’s residence first, Tylor about fifteen minutes later.

91During his travel time, Tylor received a call from Kristy, asking him to pick up baby supplies at Shopper’s Drug Store. He did so. Tylor also stopped at Subway for food.

92Tylor spent time at Kristy’s residence playing with her children. He also drove to a store to purchase cigarettes at Kristy’s request. Joanne had a nap. After lunch, Tylor left in his vehicle. He headed to Clinton to pick up Mr. Richard at school.

(iv) The Accident

93The trip from Bright to Clinton would have taken approximately one hour. Tylor drove north from Bright, primarily on paved county roads, to provincial Highway #7/8. He then proceeded to Stratford, about half-way to Clinton.

94The highway through Stratford becomes a four-lane street with numerous residences and business premises on either side and frequent traffic lights at intersections. Tylor drove through Stratford and then continued heading west on Highway #8.

95Highway #8 returns to two lanes after Stratford. It remains a built-up area with residences and business premises. Tylor continued on Highway #8, passing through the former Village of Sebringville. Shortly thereafter, Tylor’s vehicle crossed the centre line and collided with a transport truck heading in an easterly direction.

96Tylor reported having no memory of events after leaving Bright.

97Heather Monden is a special constable employed at the Court House in Stratford. In 2010, she resided in Mitchell. On April 13, 2010, Ms. Monden observed Tylor’s driving and the collision.

98Ms. Monden had been shopping in Stratford. At approximately 2:15 p.m., she headed home proceeding westerly in her vehicle on Highway #8. While driving in the curb lane, she observed a vehicle in the passing lane that was swerving. Ms. Monden continued at the posted speed, passing by this vehicle.

99Prior to Sebringville, Highway #8 becomes two lanes. Ms. Monden reported the vehicle was now behind her, coming up close and backing off. The vehicle was also crossing the centre line. She continued observing the vehicle in her mirror, attempting to get the license number. Ms. Monden saw the driver’s head go down and then back up on one occasion. At Sebringville, she called the Ontario Provincial Police to report her concerns.

100West of Sebringville, Ms. Monden observed this vehicle to speed up and was close behind her. She decided to pull over for her own safety.

101Shortly after passing Ms. Monden, this vehicle crossed the centre line of the highway and collided with a transport truck. Ms. Monden reported that the truck driver attempted to move to the right but would be unable to avoid the collision. She called the police to report the event.

102Tylor’s vehicle ended up in the ditch on the north side of Highway #8. It was laying on the passenger side.

103Ms. Monden ran to the vehicle and called out to the driver. Tylor made a response. Ms. Monden instructed other persons at the scene to direct traffic and to check on the other driver. She stayed with Tylor and engaged him in conversation, likely preventing him from going into shock. Ms. Monden told Tylor help was on the way. Police officers arrived and took over from Ms. Monden.

104Ms. Monden reported her observations of Tylor’s driving totalled about ten minutes.

105The police report records the collision occurring at approximately 2:29 p.m. Weather and highway conditions were said to be good. There were no visibility problems. Both vehicles were estimated as proceeding at eighty kilometers per hour, the posted speed limit.

106Tylor was transported by ambulance to the Stratford Hospital. His injuries were said to be significant. He was subsequently taken to the hospital in London. Tylor was later charged with careless driving.

(j) The Trial – Careless Driving

107This trial took place in Stratford on April 5 and July 7, 2011 before Justice of the Peace T. Stinson. Mr. Grossman represented Tylor.

108By agreement between counsel, the police report and witness statements were presented in evidence, thus making the prosecution’s case for careless driving. The issue at trial was whether Tylor could establish, on a balance of probabilities, a Hundal defence, namely an unexpected event affecting his driving.

109Transcripts from this trial were filed, however, counsel only referred to limited matters in the examination of witnesses. The evidentiary record was different. In result, I will not review the evidence at the careless driving trial.

110Justice of the Peace Stinson acquitted Tylor on the charge, finding, on a balance of probabilities that Tylor and Joanne were unaware of any side effects of the new medication and, as well, that the medications may well have suddenly and unexpectedly affected Tylor’s driving.

(k) Medications

111Following the first accident in 2006, Tylor was provided prescriptions for oxycontin and oxycodone. These medications are used to relieve pain, described as slow and fast release. Both are narcotics and opiates and are highly addictive.

112Tylor initially stated the use of these medications had no impact on his ability to operate a motor vehicle. When referred to his evidence at the careless driving trial, Tylor corrected his response, now saying he had to be careful when driving and would not over-medicate if he was planning to travel.

113As a result of his hospitalization in early April 2010, Tylor would discontinue use of these narcotic medications. His last prescription for these pills was on April 8, 2010 with two pills for one day.

114While at the Woodstock General Hospital, Tylor’s medication was also changed to oxazepam. On his release, a prescription was provided for this drug, Dr. Dunning, after consulting Dr. Fernando, extended the prescription and added toradol.

115Oxazepam is a benzodiazepine, a non-addictive drug used to treat anxiety and insomnia and to manage withdrawal from a prior addiction. The medication is said to have a hypnotic effect. While not causing drowsiness, oxazepam can impact motor or cognitive ability.

116Toradol is a nonsteroidal and non-addictive medication with analgesic properties. It is used to treat pain. Toradol can cause stomach upset or bleeding.

117Losec is a medication to treat stomach upset.

118The expert witnesses, Jeffrey Nagge and Spiridon Goussios, are in agreement that oxazepam is the only medication that may be relevant to the events in this case.

(l) Use of Medications

119Prior to April 2010, Tylor had been using oxycontin and oxycodone for some time, both as prescribed and as purchased on the street. As stated above, this used was discontinued on April 8 or 9, 2010.

120Oxazepam was dispensed on April 8, 9 and 12, 2010, with toradol also on the latter two dates. If Tylor followed the directions provided in the prescriptions, he would have had some oxazepam and toradol pills available on April 13, 2010. As the last prescription on April 12, 2010 directed use only “as required” it cannot be determined how many pills were used.

121Joanne retained possession of the pill vials, giving her son, she said, the pills as were directed by the prescription. Tylor reported taking only the pills provided by his mother.

122There is conflicting evidence as to what medications were used on April 13, 2010.

123On April 12, 2010, Joanne travelled to Bright. She stayed at Kristy’s residence until the following morning. Joanne reported delivering pills to Tylor before leaving the residence, enough for one day.

124In the morning of April 13, 2010, Tylor drove from Gorrie to Kitchener for an appointment with Dr. Singh. He could not recall taking any pills that morning. Ms. Richard made no comment about Tylor’s use of medication, saying only that he appeared “fine” in the morning before she left for school.

125At his careless driving trial, Tylor testified as to taking one toradol pill when he got up on April 13, 2010. At his examination for discovery, on August 28, 2014, Tylor had no recollection as to taking pills, or not, in the morning.

126After the appointment with Dr. Singh. Tylor and Joanne proceeded to Bright in separate vehicles. Tylor left Kristy’s residence after lunch.

127Tylor reported taking pills his mother provided prior to leaving Bright. He could not recall what they were. Joanne said she gave Tylor one oxazepam and one toradol pill. Joanne then delivered both pill vials to Tylor to take with him when he left.

128At his careless driving trial, Tylor said he took one oxazepam pill at 12:45 p.m. before leaving Bright. At his examination for discovery, he stated no pills were consumed at Bright. When confronted with that prior evidence, Tylor indicated he meant to say he did not take any narcotic pills. At his examination for discovery, Tylor also said he was unable to get pills in Bright as his mother was sleeping when he left. When confronted with the prior evidence, Tylor indicated his mother woke up and gave him the pills.

129The pill vials for oxazepam and toradol were in Tylor’s possession at the time of the collision on April 13, 2010 and retrieved from his vehicle. There were two oxazepam pills in the vial.

130Joanne was interviewed by Constable Julie McLeod at approximately 4:50 p.m., several hours after the accident. The officer recorded the interview in the form of a statement. It was signed by Joanne.

131In this statement is the following exchange:

“Q: Is he on medication today? A: the only thing he might have took… would be Toradol, a pain medication. He was on oxycodone, but he has a blocker for that [oxazepam] – but I don’t think he took that today. The Dr. today said only take it if you really need it. I know he took all his pills w him to go home. But he didn’t take them, just made sure he had them with him. He always carrys them with him. He is trying to stay away from them because of the addiction. He needs a lot of help to get over this accident from 4 yrs. ago… I thought he was fine today, he seemed to be alright. Not tired. I truly believe he wouldn’t drive if he thought something. Did he take a Toradol and get tired? I don’t know.”

132Joanne reported being upset at the time of the interview with Constable McLeod, understandable as Tylor is in the hospital with a medical crisis due to his injuries. She also says she did not read over the statement completely before signing. Joanne advised informing the police officer as to Tylor’s addiction to oxycodone and his recent hospitalization in Woodstock. When asked if Tylor had consumed alcohol, she says she told Constable McLeod he was not drinking. As to the medications, Joanne indicated she meant to advise the officer that Tylor was not using narcotics but did not think of the other medications that he had been prescribed.

133Constable McLeod wrote the statement, she said, from information provided by Joanne. The officer went on to say the statement was read back to Joanne to determine accuracy and, as a result, several amendments were made. Joanne then signed the statement at the request of Constable McLeod.

134Joanne spoke to Dr. Dunning on May 7, 2010. Dr. Dunning recorded the following in her notes:

“May 7, 2010 Mom says he was called in as drunk driver before mva was 2:00 pm in the afternoon was fine all day saw Dr Singh and then went to cousins playing with kids etc She says he was fine and left to go see his girlfriend and had mva tested for drugs at woodstock hospital charged with careless driving she says found pill bottle in truck and had 3 Toradol and other meds left had not taken them all or any other meds she is upset says he must have fallen sleep just got quinine legs still jumpy at night physio started strength in R hand still not N occ tingles in arms and legs O: alert oriented lacerations on arms are clean and healing well power in legs n and dtr N L arm pain with use of triceps Hand seems n power rom and sensation R hand full ROM but slow slightly weaker than R continue physio see Dr. Gurr 25th discussion getting off narcotics asap he says still alot of pain will try to decrease to 2 mg and increate to q6 h will record how takes and tyr to wean so not on after the next wekk or so can continue gabapentin bid as he feels it helps alot Mom aware and is going to help monitor meds to decrease use”

135Joanne acknowledged having a conversation with Dr. Dunning but said the notes are not accurate. She denies saying Tylor fell sleep. Rather, she reported it was the police making the comment of being asleep. Joanne indicated she was informing Dr. Dunning that Tylor was not taking narcotics.

(m) Opinion Evidence – Pharmacists

(i) The Experts

136As previously mentioned, Jeffrey Nagge and Spiridon Goussios provided evidence. Both were well qualified and most helpful.

137Dr. Nagge is a pharmacist, obtaining his undergraduate degree in 1995 and completing a Doctor of Pharmacy program in 2001. He is an associate professor at the University of Waterloo and a clinical pharmacist at the Centre For Family Medicine in Kitchener.

138Mr. Goussios is also a pharmacist. He obtained his undergraduate degree in 1991. Mr. Goussios owns a pharmacy in Mississauga. He also lectures on pharmacy topics.

(ii) Standard of Care

139Dr. Nagge and Mr. Goussios presented similar opinions on the standard of care for a “community based pharmacist”. This is based on the “Model Standard of Practice For Canadian Pharmacists” established by the National Association of Pharmacy Regulatory Authorities.

140The standard requires a pharmacist to provide verbal counselling for “new” medications. On subsequent “renewals”, the pharmacist is to make an inquiry regarding the use of the medication. The purpose of counselling is to provide information to the patient, or his/her agent, and the subsequent inquiry is to ascertain it there are any problems.

141Information provided in verbal counselling is the purpose of the medication, risks and side effects. While there is no set script to follow, these experts report a pharmacist is to:

• ask the patient his/her understanding of the purpose of the medication;
• provide the reason for it and the intended results;
• review the physician’s directions as to use, such as quantity, time of day and if with meals;
• advise as to possible side effects, such as drowsiness, and to consult physician if experience problems;
• provide particular cautions regarding risks when required, including operating a motor vehicle, consuming alcohol and using other medications;
• inquire if there are questions.

142The pharmacist is to document whether counselling was provided to the patient, or offered and declined, by initialling the hard copy of the prescription.

143The standard of care does not require warning labels to be placed on the pill vial by the pharmacist. Nor are written information reports about the medication needed. Only verbal counselling is mandatory.

(iii) Impact of Oxazepam

144Dr. Nagge and Mr. Goussios advise that the use of oxazepam can cause a risk in operation of a motor vehicle. The relevant factors are:

a) dosage level; b) length of time when using the drug; c) time when drug taken.

145The experts agree a 15 mg. dosage is at the lower end. The dosage provided to Tylor at the Woodstock General Hospital, and in the prescription on April 9, 2010, were higher. By April 13, 2010, Tylor had been using oxazepam for almost two weeks, still considered a relatively short period of time. He may have taken one pill approximately one hour before the accident, within the time period for it to take effect.

146Dr. Nagge opined the medication, related to these factors, would not cause drowsiness but would likely have had an impact on Tylor’s cognitive ability by impairing his attentiveness and concentration. Hence, he says it was possible Tylor’s ability to operate a motor vehicle might have been impaired. Dr. Nagge went on to say it would be similar to a blood alcohol concentration of about .03 milligrams per decilitre. This, he said, would cause some impairing effect even though the dose was on the lower end of the range.

147Dr. Nagge acknowledged Tylor’s driving prior on April 11, 2010, would have given him an opportunity to see how he was able to drive with medication.

148Mr. Goussios agrees with the report of Dr. Nagge, expressing his view in a somewhat different fashion. He opined that, with a small dosage of 15 mg., it was by no means certain the oxazepam would have caused a substantial impairment of Tylor’s ability to operate a motor vehicle.

(n) Warning Labels

149Peter Johnston is a forensic engineer. He was retained by Tylor’s counsel to examine certain pill vials and provide evidence regarding removal of warning labels.

150Mr. Johnson was presented to provide opinion evidence. I declined to authorize such given the lack of scientific testing. He was permitted to provide evidence as to observations.

151Nine vials were examined by Mr. Johnston on May 14, 2015, eight having a Belgage Pharmacy label. Three vials were for oxazepam dispensed in early April 2010 and relating to the evidence in this case. The vials were examined visually and with the aid of magnification using a stereomicroscope.

152Mr. Johnston reported no residual adhesive was observed on the vials from Belgage Pharmacy. Nor did he see any evidence of tampering, such as scratching with a knife. Mr. Johnston acknowledged his examination occurred five years after the event. He was not asked about other methods of removing labels.

153Ms. Youssef reported her usual practice was to attach waning labels on vials containing oxazepam and certain other medications. In cross-examination, numerous pill vials from her pharmacy for Tylor in 2010 were presented, many not having warning labels. Ms. Youssef said they should have been placed on the vial when dispensed. She went on to say she had no control over the vial once it left her pharmacy.

C. LEGAL PRINCIPLES

(iii) Standard of Care

154While none of the authorities provided by counsel involve pharmacists, there can be no dispute Ms. Youssef owes a duty of care to a patient. She is a professional, dispensing medication and remunerated for providing such services.

155The standard of care for a pharmacist is comparable to that of a physician, as both are considered medical practitioners. In this regard, the classic definition remains as stated by Schroeder J.A. in Crits v. Sylvester, [1956] O.R. 132 (Ont. C.A), aff.d , [1956] S.C.R. 991 (S.C.C). At paras. 13 and 14, he said:

13 Numerous cases were cited bearing upon the degree of care which may be expected from a medical practitioner. While I have read and considered the cases cited, as well as other decisions, I do not think that any useful purpose will be served by my reviewing them here in detail. The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

14 I do not believe that the standard of care required of a medical practitioner has been more clearly or succinctly stated than by Lord Hewart C.J. in Rex v. Bateman (1925), 41 T.L.R. 557 at 559 : “ if a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment… The law requires a fair and reasonable standard of care and competence.”

156Similarly, in Turcotte v. Lewis, 2018 ONCA 359, Strathy C.J.O, at para. 46, addressed the standard of care being adaptable to the circumstances of each case, saying:

[45] The standard of care defines the content of the duty of care and depends on the context: Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, at p. 1198. In Ryan v. Victoria (City), [1999] 1 S.C.R. 201, a case considered by the motions judge, Major J. described, at pp 221-222, the factors to be considered in the articulation of the standard care:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

157Opinion evidence is required to determine the particular standard of care when, as here, the subject matter and the issue raised are beyond knowledge and experience of the trier of fact. See: Krawchuk v. Sherbak, 2011 ONCA 352, at para. 130; and Samuel v. Ito, at para 27.

158In this case, Dr. Nagge and Mr. Goussios provided opinion evidence. The standard of care, as previously set out in my review of their evidence, is not in dispute.

(iv) Usual Practice

159Ms. Youssef has no specific memory of all details pertaining to her involvement with Tylor and Joanne. The situation with Dr. Fernando, Ms. Brouwer and Dr. Dunning was similar. This is not unusual given the passage of time and the many patients seen by the witness. Records become important. So does routine, often referred to as “invariable practice” in the caselaw.

160This concept was succinctly stated by Seaton J.A., in Belknap v. Greater Victoria Hospital Society, 1989 Carswell 621 (B.C.C.A), at para. 39 as follows:

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

161In Dickie v. Minet, 2014 ONCA 265, at para. 4, the panel added further comment, saying:

[4] The trial judge declined to draw an adverse inference from the respondent’s lack of independent recollection in relation to the extraction of tooth 48, which occurred some six years prior to the trial. He was entitled to accept the respondent’s explanation for his lack of recollection and to rely on is evidence of how he performed the extraction, based on his post-operative notes and his invariable practice.

162Similarly, in Miremble v. Tarshis, at para. 1, the panel said:

[1] Counsel for the appellant advanced a number of attacks on the trial judgment. First, he challenges the credibility findings made by the trial judge, particularly in relation to Dr. Tarshis. Counsel says that the trial judge erred in accepting Dr. Tarshis’s reliance of his invariable practice to determine what he did in relation to the appellant. We see no error in this. It was open to the trial judge to accept this evidence particularly given that she found that Dr. Tarshis was generally credible, his evidence made sense and was, to some degree, supported by the documentation.

163Evidence as to invariable practice is not always conclusive, as can been seen in Barber v. Humber River Regional Hospital, 2016 ONCA 897, at paras. 60 and 61, Cronk J.A. made reference to the assessment of the trial judge on this issue, as follows:

[60] The trial judge addressed Dr. Joshi’s reliance on his invariable practice directly. She stated, at paras. 221-223:

Evidence of Custom/Invariable Practice

I recognize that in a busy hospital ER it is difficult to find the time to record every salient finding. I also appreciate the strength and importance of evidence of customary practice and I have carefully considered the evidence and the case law with those considerations in mind.

Reconstruction of Evidence

I have already noted Joshi’s evidence that Barber’s mental status at 12:30 and 2:00 PM on February 13, 2006 must have been normal because if Barber’s mental status had been abnormal, he would have acted differently. In effect, in reconstructing what he must have done, he reasoned that given his own standards and given that the Standard of Care would have required him to act differently than he did had Barber’s mental status been abnormal, Barber’s mental status must have been normal.

That type of reasoning and reconstruction was of little assistance to this Court. For me to adopt that reasoning would require me to assume in Joshi’s favour the answers to the very questions that I must answer/decide. Instead, I have borne in mind all the evidence and the relevant case law, including the law on usual practice. [Italicized emphasis in original; underlined emphasis added.]

[61] Thus, this trial judge’s reasons do explain why she rejected Dr. Joshi’s evidence concerning Mr. Barber’s mental; status and placed little weight on his testimony about his invariable practice. The trial judge was not obliged to accept Dr. Joshi’s account of Mr. Barber’s mental status or his explanation for omissions in his clinical notes. As Dr. Joshi concedes in his factum, so long as the trial judge considered his evidence on these issues, she was not required to accept that it was accurate. Having considered his evidence, the trial judge simply declined to accept it. This was her call to make.

(v) Causation

164In Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, McLachlan C.J.C., at para. 8 addressed causation in the following manner:

8 The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” for 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 factual inquiry. If the plaintiff does not establish this is on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

165In Sacks v. Ross, 2017 ONCA 773, Lauwers J.A. addressed causation in action involving the standard of care for a physician, at paras. 47 and 48 saying:

[47] Regardless of whether the defendant’s breach of the standard of care is an act or an omission, the trier of fact’s cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.

[48] There are two possible outcomes to the trier of fact’s imaginative reconstruction of reality at the second step. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. On the other hand, if the trier of fact infers from the evidence that the plaintiff would not likely have been injured without the defendant’s act or failure to act, then the “but for” test for causation is satisfied: but for the defendant’s act or omission, the plaintiff would not have been injured. The defendant’s fault, which justifies liability, has been established.

(vi) Unavoidable Accident

166There is a prima facie presumption of negligence against the driver of a motor vehicle that crosses over into the lane of oncoming traffic. See: Rydzik v. Edwards (1982), 38 O.R. (2nd) 486 (Ont. H.C.J.), at paras. 491-492; and Hussain v. Uddin Estate at paras. 17-19, aff.d [2006] O.J. No. 1638 (Ont. C.A.).

167The presumption is rebuttable. The onus is on the party crossing the centre line to provide an explanation. See: McDonald v. John/Jane Doe, 2015 ONSC 2607, at paras. 19-25.

168The test for unavoidable accident was addressed in Boomer v. Penn, 1965 CarswellOnt 196 (Ont. H.C.J.), Evans J., at para. 9, saying:

9 If an accident is caused by negligence then the defendant can avoid consequences of the negligent act, if he can establish a defence of inevitable accident. That is by showing that the cause of the collision was a cause not produced by him, but a cause the result of which he could not avoid. A driver claiming inevitable accident must discharge the onus upon him of rebutting by a preponderance of evidence and on the balance of probabilities the presumption of negligence arising from his manner of driving. The test to be applied is whether the faculties of judgment of the driver became impaired to such a degree that a reasonable person could not regard his operation of the motor vehicle in the manner complained of as the conscious act of his will. The onus of establishing that the acts or omissions were not conscious acts or omissions of the driver rest upon that driver, and it is not discharged if the Court is left in doubt on that subject. The evidence must disclose the probability that the driver’s acts and omissions were not conscious acts by his volition and that he did or failed to do was not done or omitted by him as a conscious being.

169See also Hagg v. Bohnet, 1962 CaswellBC 73 (B.C.C.A) at para. 38; and Perry v. Banno, 1993 CaswellBC 158 (B.C.S.C.).

D. ANALYSIS

(i) Credibility and Reliability

170There are issues regarding the credibility and reliability of the evidence from the principal witnesses.

(a) Tylor and Joanne

171While Raymond had a general understanding of his son’s health and other issues, it appears he delegated parented responsibility to Joanne. His involvement in events pertaining to this case was limited to the discharge meeting at Woodstock General Hospital on April 8, 2010. Raymond was upset with the remarks from Dr. Fernando regarding Tylor’s drug use; however, he had no recollection as to the other topics discussed. His evidence was of little assistance.

172To better understand the credibility and reliability issues for the evidence presented by Tylor and Joanne, it is helpful to review the background information.

173Tylor was diagnosed with ADHD (Attention Deficit Hyperactivity Disorder) as a child according to his parents and the records of Dr. Dunning. He was involved in an accident in 2006, resulting in serious injuries and a subsequent addiction to the prescribed medication. In 2008, Tylor had a mental health crisis in Parry Sound. Woodstock General Hospital records reveal Tylor had a “panic attack” after being stopped by police for speeding. He was taken to the Parry Sound Hospital and admitted as an involuntary patient. Tylor was then transferred to the Penetang Psychiatric Hospital and released four days later. Police records show Tylor being flagged on CPIC (Criminal Record Verification Informed Consent) for suicidal concerns, likely due to the incident in 2008.

174Tylor has been consulting Dr. Singh, a psychiatrist, on a regular basis. He was also seeing a crisis therapist in Waterloo until March 2010.

175Tylor had another mental health crisis on March 31, 2010. This event involved threats of violence to family members. Police officers transported Tylor to Woodstock General Hospital. He was admitted as an involuntary patient.

176Tylor had been prescribed oxycontin and oxycodone for several years prior to the accident in 2010. He was also purchasing extra pills on the street. These are strong medications. Tylor was aware use of the pills could impact his ability to operate a motor vehicle.

177Tylor become addicted to the medication. Joanne and others were well aware of the addiction issues given experience with other close family members who had the same problem.

178Counsel for Tylor submits his client’s lack of memory about the accident and other events should not be used as the basis for finding his evidence is not credible. I agree to a limited extent. Tylor sustained serious injuries in the accident, including to his neck and head. Such injury may well have impacted his memory about the accident. The concern, though, is that he has a “partial” memory of earlier events that day and prior. In the absence of medical evidence addressing his memory, there is a legitimate concern his evidence was “selective”, ignoring important matters in which he was involved.

179There is a further problem with his inconsistent reports. He provided sworn testimony on three occasions, saying different things about key events, including the use of prescription medication on April 13, 2010.

180Similarly, Joanne was inconsistent in her presentation of evidence and in reports to others involved. She also testified as to many meetings with health care professionals regarding Tylor. There was also a lengthy conversation with Ms. Youssef on April 8, 2010, concerning Tylor’s hospitalization and his medication. Yet her recollection of those events was limited, again raising the concern of being selective in her presentation.

181At trial, Tylor and Joanne attempted to explain prior testimony or reports. Memory does not normally improve with the passage of time, particularly here when eleven years have gone by since the events.

182Minor inconsistencies are always expected. Humans are not perfect. Major inconsistencies regarding important events are troubling, making the decision-making process more difficult.

183Joanne is critical of most health care professionals involved with Tylor. She knew of her son’s addiction, although describing it as a “craving”. She blames Dr. Dunning for prescribing oxycontin and oxycodone. Yet Dr. Dunning’s records indicate her attempts to reduce the medication and a reluctance from Tylor. Dr. Singh and the orthopaedic surgeon were warning Tylor and Joanne about the addiction.

184Concerns with respect to addition to oxycontin and oxycodone were well publicized long before 2010. Media reports, for example, in 2007 addressed the drug manufacturer’s guilty plea for misleading the public about the dangers of addiction. Yet, no serious attempts were made by Tylor and Joanne to pursue addiction counselling, pain management or physiotherapy to address the underlying problem.

185While Tylor was an adult in 2010, he still needed parental assistance. It is difficult to understand why the family is so critical of medical care providers yet accept no responsibility for their own inaction.

186The final item of concern is the lack of detail in their evidence, particularly regarding the use of medication. Tylor reported consuming medication as provided by his mother. Joanne said she followed the directions on the pill vial. But the prescription changed on April 12, 2010 with the direction to use oxazepam “when required”. The plan was to reduce and then discontinue.

187In these circumstances, it is reasonable to expect clear evidence as to what pills were used, when and why on April 12 and 13, 2010.

188There was no evidence regarding the need for oxazepam on April 13, 2010, such as anxiety previously experienced.

189In result, I conclude there are serious concerns with the credibility and reliability of the evidence of Tylor and Joanne.

(b) Ms. Youssef

190In general terms, the presentation of evidence by Ms. Youssef was clear and consistent. She made no attempt to minimize, critique or exaggerate. Ms. Youssef acknowledged having no specific memory regarding the events when dispensing medications for Tylor in April 2010, an expected response for a busy professional. Having dealt with Tylor for some years, Ms. Youssef was well aware of his medical history, in general, and his medications, in particular. In my view, Ms. Youssef is a dedicated pharmacist, operating an independent pharmacy, not a grocery store like the franchise druggists, so that she can serve her patients medication requirements.

191Ms. Youssef described her usual practice in considerable detail. The software program, in large measure, confirms the practice followed. Her statement regarding usual practiced, if followed, was approved by the expert witnesses.

192The only challenge regarding the credibility and reliability of the evidence of Ms. Youssef is with respect to the warning labels. In her usual practice, such labels are applied to oxazepam pill vials. Ms. Youssef believes they were, based on her routine. While the evidence of the engineer falls well short of establishing the labels were never affixed to the vails, the number of unlabeled pill vials is troubling.

(ii) Did Ms. Youssef Meet the Standard of Care?

193Having regard to the opinion evidence of Dr. Nagge and Mr. Goussios as to the standard of care for a community-based pharmacist, if Ms. Youssef followed her usual practice in dispensing oxazepam for Tylor, I conclude she complied with her professional obligations.

194The standard of care for Ms. Youssef is independent of that for the physician’s involved in Tylor’s care. Whether they provided counselling, or not, is irrelevant. Ms. Youssef must attend to the matters required of a community-based pharmacist.

195Within the list of items a pharmacist must address in counselling a patient with a new prescription for oxazepam, of critical importance in this case is a warning regarding the operation of a motor vehicle.

196Tylor and Joanne say there was no counselling by Ms. Youssef, save for a comment regarding stomach problems associated with toradol.

197Counsel for Tylor submits the lack of counselling for toradol, Ms. Youssef recording “B4”, or provided previously, is of concern. I disagree. Toradol is a painkiller medication. Tylor had been prescribed with such medications over the past several years. Further counselling with respect to toradol was not required, save for the unique side effect of causing stomach problems. That is not in dispute.

198Counsel for Tylor also says the failure by Ms. Youssef to record whether counselling was provided to the patient or to the agent is of concern. I disagree. There is no dispute Joanne received the initial medication in question for Tylor. She had provided a consent previously from Tylor for that purpose. Joanne was Tylor’s agent.

199Counsel for Tylor further submits the lack of warning labels is of concern. I agree. The evidence does not lead to a conclusion the warning labels were never affixed, only that there was no indication adhesive residual was present. No testing was performed of these vials or the others referred to, some twenty of forty-five in total. Hence, I am unable to conclude there were never warning labels. It is of concern. It is a possibility. The evidence is incomplete. But warning labels are not required in the standard of care. Nor are information sheets.

200Did Ms. Youssef follow her “invariable practice” in providing counselling? On a balance of probabilities, I conclude she did.

201Ms. Youssef well understood the medication, its purpose, side effects and concerns that invite a warning. She also knew Tylor and Joanne, having dispensed medications for Tylor for several years. Ms. Youssef was also aware of Tylor’s medication history and the issues he was addressing.

202Oxycontin and oxycodone were being discontinued, replaced by oxazepam and then toradol. Such event would lead a pharmacist familiar with the patient to make inquiry. Ms. Youssef demonstrated a sincere interest in Tylor’s medical issues engaging in conversation when present to inquire how he was doing.

203The conversation occurred on April 12, 2010. It met the standard required of a pharmacist on a medication renewal.

204The conversation between Joanne and Ms. Youssef on April 8, 2010 was lengthy, as acknowledged by Joanne. Oxazepam was a new prescription that day. Joanne was reporting on recent events, including Tylor’s hospitalization. Clearly, the conversation is being directed by Ms. Youssef as she needs to know why a new drug is being prescribed. In my view, the conversation would then continue regarding the new medication, particularly as to side effects and warnings as to driving. I conclude it did. Such is logical and makes sense in the circumstances at that time.

205Ms. Youssef provided considerable details as to the usual practice she followed. The software program would report oxazepam as a new prescription and remind Ms. Youssef as to the need for counselling and to create a record of the event. Her endorsement on the hard copy of the prescription corroborates counselling occurred.

206Joanne’s recollection of events was inconsistent and raises concern regarding the issue of counselling. She was aware the medications had changed. It makes no sense that she was told nothing, asked no questions and assumed there would be no side effects.

207April 8, 2010 was a stressful day for Joanne, as were the prior eight days when Tylor was in the hospital. She was legitimately concerned for her son’s well-being, attending the hospital daily to see him and speak to hospital staff. The discharge meeting that day would have compounded her stress level. Joanne is now bringing Tylor home knowing he is dealing with withdrawal and with different medication. Tylor was not well, reporting he stayed in the vehicle “throwing up”. With all of these events occurring on April 8, 2010, it is not surprising Joanne’s recollection of counselling from Ms. Youssef is simply incomplete.

208The complaint’s as to the lack of counselling are rejected. I accept the evidence of Ms. Youssef as to her usual practice and conclude she did provide counselling to Joanne, as Tylor’s authorized agent, on April 8, 2010 and that counselling included a warning not to operate a motor vehicle until Tylor understood how the medication was affecting him.

209Ms. Youssef met the standard of care.

210In the event of appellate review, I will continue my analysis on other issues.

(iii) Physicians

211Physicians have a duty of care, the standard being similar, if not higher, to a pharmacist when prescribing medication.

212Dr. Fernando and Dr. Dunning are not parties to this case. Their involvement with Tylor has no impact on the issues pertaining to Ms. Youssef. The evidence of these physicians is only relevant to the issue of causation.

213Neither Dr. Fernando or Dr. Dunning have a specific recollection of all discussions with Joanne and Tylor. They rely on notes prepared at the time and on their usual practice.

(a) Dr. Fernando

214It was difficult following the evidence of Dr. Fernando. His handwritten notes are illegible. Even he could not interpret some of the words recorded. There is no reference to warnings regarding oxazepam in his written reports.

215In her notes regarding the discharge meeting on April 8, 2010, Ms. Brouwer made reference to “explained withdrawal for the Oxy’s and the meds to be discharged on”. I accept her evidence there was a conversation about the oxazepam but it is unclear what was specifically said by Dr. Fernando.

216I understood Dr. Fernando to say a discussion regarding the side effects of oxazepam, including drowsiness, occurred at the discharge meeting or prior. Given the state of his notes and his inability to recall, I am not certain as to specific details of the conversation. On this evidence, I cannot conclude Joanne and Tylor were warned about operating a motor vehicle. At most, it is possible they were.

(b) Dr. Dunning

217The situation with Dr. Dunning is different. She had been Tylor’s primary physician for many years, well understood his medical history and genuinely concerned for his well-being. Dr. Dunning had attempted to reduce Tylor’s use of oxycontin and oxycodone. Tylor never revealed he was acquiring additional pills on the street. In March 2010, Dr. Dunning began weaning Tylor off these medications, as directed by the orthopedic surgeon.

218Dr. Dunning spoke to Joanne on April 9, 2010, by telephone. She called Dr. Fernando and then delivered a prescription for Belgage Pharmacy. Dr. Dunning indicated there was a discussion about oxazepam with Joanne. There is no mention of such in her notes. Dr. Dunning made reference to relying on there being a prior discussion with the psychiatrist.

219Tylor and Joanne attended Dr. Dunning’s office on April 12, 2010. A lengthy conversation took place as can be seen in Dr. Dunning’s notes. The discussion addressed Tylor’s current state and the plan moving forward, including “will stay home with mom”. The recording “script to mom”, Dr. Dunning said, was a reference to controlling the use of the medication by Tylor. Dr. Dunning went on to report the conversation would also have included side effects and a warning regarding driving as was her usual practice with this type of medication.

220I am satisfied information was provided by Dr. Dunning to Tylor and Joanne on April 12, 2010, specifically a warning about driving. This, in my view, is confirmed by the notes. It makes sense as oxycontin and oxycodone are being discontinued, there would be withdrawal symptoms and new medications are being prescribed. This is an invitation for a detailed discussion.

221Tylor had little recollection of this event, saying he was not paying attention. He was aware of some discussion but relied on his mother to look out for him.

222Joanne says Dr. Dunning’s notes are accurate but that the discussion did not include a warning about operating a motor vehicle. Her evidence is rejected. As before, her inconsistent reports and incomplete presentation of events is of concern. This was another long meeting, like several days’ prior with Ms. Youssef. Dr. Dunning, in my view, was making inquiry as to all recent events in order to be satisfied further prescriptions were needed. This conversation, as recorded in Dr. Dunning’s notes involved creating a plan for treatment.

223The plan included oxazepam for a brief period. I conclude the warning was presented by Dr. Dunning about driving. The plan included many other items as the goal was to eliminate addiction. Dr. Dunning did all that she could. Tylor and Joanne neglected to follow the plan.

(iv) Did Tylor Use Oxazepam on April 13, 2010?

224There are two possible occasions when Tylor may have used oxazepam on April 13, 2010. At best, the evidence is unclear.

225On April 12, 2010, Joanne went to Bright. She reported leaving Tylor with both toradol and oxazepam pills. Tylor may have taken both in the morning of April 13, 2010, prior to driving to Kitchener for the appointment with Dr. Singh, given that he said pills were used as provided by his mother. Or, maybe he only used toradol. Maybe no pills were used.

226The evidence regarding the use of oxazepam prior to leaving Bright after lunch is equally confusing. The evidence of both Tylor and Joanne has been inconsistent, varying from no pills, one pill to two pills. To further complicate matters, there was no evidence of Tylor experiencing anxiety at Bright, an important gap in that the pills were only to be used “when required”.

227While it is possible Tylor took an oxazepam pill prior to leaving Bright, I am not persuaded such was probable. On a balance of probabilities, I conclude he did not.

(v) Causation and Unavoidable Accident

228Both issues are considered together as it involves the same evidence and the principles are comparable.

229Assuming Tylor took one oxazepam pill approximately one hour before the accident on April 13, 2010, it cannot be said such, in all likelihood, caused an impairment to such a degree that his operation of the motor vehicle was not a conscious act of his will. At most, the evidence only reaches the standard of possibility.

230There are a number of matters for consideration.

231I have concluded Tylor had some information, specifically a warning as to driving from Dr. Dunning. Tylor also had experience in operating his vehicle while using prescription medications. Before, it was the use of oxycontin and oxycodone. On April 11, 2010, Tylor drove to Listowel. If he was taking the medications as directed, Tylor would have consumed an oxazepam pill prior to the trip. Similarly, he may have taken an oxazepam pill in the morning of April 13, 2010, prior to driving to Kitchener. Again, the evidence is unclear.

232The oxazepam was a low dosage. Both experts commented on this being a mitigating factor when considering impairment. At most, the expert evidence reaches the level of a possibility oxazepam could cause some impairment. But that is not the standard. Dr. Nagge was most helpful in drawing a comparison to blood alcohol concentration of about 0.03 milligrams per decilitre. However, the minimal standard for impairment under section 320.14 (i)(b), Criminal Code of Canada, is 0.80 or 80 milligrams of alcohol in 100 millilitres of blood.

233I am satisfied the prescribed dosage of oxazepam may have had some impact on Tylor’s cognitive ability. The evidence does not, on a balance of probabilities, establish the impact would be impairment at the requisite level.

234The accident was not unavoidable. Nor was it caused by oxazepam.

235There are many possible explanations. Dr. Nagge referred to Tylor’s weaving, as observed by Ms. Monden, as indicative of a cognitive malfunction. Perhaps the nodding of his head, also observed by Ms. Monden, was similar.

236But, it is also consistent with falling asleep. The evidence presented did not reveal a lack of sleep the night prior. However, Tylor had a history of insomnia and was experiencing withdrawal symptoms after discontinuing the prior medications and, in result, was not sleeping well as Ms. Richard observed.

237Even if Ms. Youssef did not provide the information required in meeting the standard of care, and if Tylor consumed one oxazepam pill one hour prior to the accident, the evidence presented does not meet the “but for” test for causation.

E. SUMMARY

238For these reasons, the action is dismissed.

239I expect counsel will resolve the issue of costs; failing which, counsel are directed to exchange written submissions, and deliver same to my attention by email, care of kitchener.scjja@ontario.ca within 45 days of the release of this decision. If no written submissions are received within the prescribed time period, the issue of costs will be considered settled and the file will be closed.

Gordon, J.