COURT FILE NO.: CV-17-4887-00

DATE: 2023 09 06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MERTON THOMPSON, as litigation administrator for the ESTATE OF ELISHA SHAW, deceased, MERTON THOMPSON, personally, and KY-MANI-JOEL JAMES THOMPSON, BLESSED-ZI'ONNA EVA THOMPSON, NEHEMIAH-JOSEPH PETER THOMPSON and KING-JOHIAH THOMPSON, minors by their litigation guardian, MERTON THOMPSON

P. Cahill and H. Chalmers, for the Applicants

Plaintiffs

• and -

DR. JEFFREY HANDLER, DR. MARY PATRICIA FITZGERALD, DR. JONATHAN SINGER-JORDAN, DR. KALKIDAN BELAY, DR. JOHN DOE and WILLIAM OSLER HEALTH SYSTEM

B. Morrison and S. Bittman, for the Defendant Dr. Handler No one appearing for the other Defendants.

Defendants

HEARD: January 10^th-13^th, 16^th, 17^th, 19^th, 20^th, 23^rd, 24^th, 25^th and 27^th, 2023

REASONS FOR JUDGMENT

LEMAY J

[1] On November 16^th, 2015, Elisha Shaw complained of significant abdominal pain. She went to the emergency room at William Osler Hospital in Brampton late that evening. She was seen by the Defendant, Dr. Jeffrey Handler in the emergency department. Dr. Handler ordered an ultrasound of Ms. Shaw’s abdominal area and performed other tests on Ms. Shaw. Dr. Handler ultimately discharged Ms. Shaw on the morning of November 17^th, 2015 with a direction to follow up with her family physician and obtain an appointment with her bariatric surgeon. Ms. Shaw returned home.

[2] The next morning, November 18^th, 2015, Ms. Shaw’s pain required her to be taken back to the hospital by ambulance. She was readmitted to the hospital and was diagnosed as having acute abdominal pain. The surgeon who saw her, Dr. Kal Belay, was concerned that she had an internal hernia in her small bowel and was at risk of ischemia. Ms. Shaw did have an internal hernia, and a laparotomy was performed on Ms. Shaw at approximately 9:00 p.m. on November 18^th, 2015. At the end of the laparotomy, the surgeon, Dr. Belay, decided to monitor the condition of Ms. Shaw’s bowels, concerned that he might have to completely remove her small bowel.

[3] Unfortunately, over the next twelve hours, Ms. Shaw’s condition deteriorated. When Dr. Belay re-examined Ms. Shaw on the morning of November 19^th, 2015, a significant portion of her small bowel had developed areas of necrosis and had to be removed. Ms. Shaw was transferred to Humber River Regional Hospital.

[4] Despite this second surgery, Ms. Shaw’s condition continued to deteriorate, with necrosis developing in other parts of her digestive system. Even with further surgery and treatment, Ms. Shaw passed away on November 25^th, 2015. The general cause of death was her ischemia and resulting small bowel resection and the complications that flowed from this surgery. I will deal with the more specific questions in respect of causation below.

[5] The Plaintiff, Merton Thompson, is Ms. Shaw’s husband. He has brought a lawsuit on his own behalf, on behalf of Ms. Shaw’s estate and on behalf of their infant children alleging that the doctors who treated Ms. Shaw were negligent. By the time the matter came to trial, the claim was only proceeding against Dr. Handler. In essence, the claim against Dr. Handler is that he was negligent in discharging Ms. Shaw from the emergency department on the morning of November 17^th, 2015 and failing to refer her for a surgical consult that morning. Further, the Plaintiffs argue that if Dr. Handler had kept Ms. Shaw in hospital, the surgery that was done on the evening of November 18^th, 2015 would have been performed earlier and would have been successful. Dr. Handler disputes this assertion.

[6] For the reasons that follow, I have determined that Dr. Handler’s care of Ms. Shaw fell below the standard of care required of an emergency room physician and was negligent. I have also concluded that Dr. Handler’s negligence caused Ms. Shaw’s death, as surgical intervention on November 17^th, 2015 would have resulted in a much better outcome for Ms. Shaw.

Background Facts

a) The Parties

[7] Elisha Shaw and Merton Thompson met in October of 2004. They began a relationship shortly thereafter and began living together at the end of 2007. They were married in September of 2010, after Mr. Thompson was divorced from his previous spouse.

[8] They had four children as follows:

a) Ky-Mani-Joel born July 24^th, 2008

b) Blessed Zi’onna born April 2^nd, 2010

c) Nehemiah-Joseph Peter born August 29^th, 2011

d) King-Johiah born December 15^th, 2013

[9] At the beginning of her marriage, Ms. Shaw was employed with both the Peel District School Board and Brampton-Caledon Community Living. At the time of her death, she was only employed by the Peel District School Board as a casual teaching assistant, as she had resigned her employment with Brampton Caledon Community Living in 2014. Ms. Shaw had been employed by the Peel District School Board since 2006.

[10] Mr. Thompson was born in Jamaica and came to Canada in 1999. He originally came to Canada for employment as a seasonal farm hand. He moved to Canada permanently in 2004. Mr. Thompson testified that he worked in construction from 2008 to 2014. In 2014, he started working at Wal-Mart. At the time of trial, Mr. Thompson was 54 years old.

[11] The Defendant, Dr. Jeffrey Handler, is certified as a specialist in emergency medicine and has held that certification since 1999. Dr. Handler also earned his certificate as a specialist in family medicine in 1998. Dr. Handler has been practicing medicine for approximately thirty years and earned his doctorate in medicine from the University of Toronto in 1992. He has worked as an emergency room physician at the William Osler Health System from 1994 to the present.

[12] The remaining Defendants are not involved in the action at this point, and I will not consider the claims that were originally made against them any further. There is also a cross-claim against William Osler Hospital. Counsel for Dr. Handler has advised that it is not necessary to consider this claim either. However, during the course of the trial, we heard testimony from both radiologists, Dr. Mary Patricia Fitzgerald and Dr. Jonathan Jordan-Singer, and I will consider their evidence.

b) Ms. Shaw’s Previous Surgery

[13] In his testimony, Mr. Thompson stated that when he met Ms. Shaw she was “a little bit chubby”. By 2012, Ms. Shaw was morbidly obese. She also had a family history of diabetes. As a result, based on medical advice, Ms. Shaw decided to have a laparoscopic Roux-en-Y gastric bypass. It is surgery that is designed to reduce the size of the stomach and, as a result, the appetite and calorie consumption of the person upon whom the surgery is performed. It is referred to as bariatric surgery and is performed by a bariatric surgeon. It also results in a person having fewer intestines in the abdominal cavity, which can cause them, in layman’s terms, to move around and become tangled.

[14] Ms. Shaw’s bariatric surgery took place in 2012. After the surgery, Ms. Shaw lost considerable weight. She also had ongoing gastric pain that would wax and wane. She consulted her bariatric surgeons about this pain. She was treated with opioids to manage the pain and had been taking opioids on a regular basis prior to the November 2015 sequence of events.

[15] Ms. Shaw also had cholecystitis, an inflammation of the gallbladder. Ms. Shaw presented to the emergency room with ongoing gastric pain. She was pregnant at the time. Ultimately, Ms. Shaw underwent a cholecystectomy, which is the removal of the gallbladder, in August of 2013.

[16] In 2014, Ms. Shaw was suffering from persistent nausea and persistent pain in her abdominal area. She was prescribed hydromorphone (an opioid) for the pain. This pain was ongoing throughout the time prior to Ms. Shaw’s death, although its severity waxed and waned.

[17] Given the ongoing pain, Ms. Shaw had a CT scan of her chest, abdominal region, and pelvis on July 30^th, 2014. This scan showed findings suggestive of an internal hernia. Those findings included both twisting of the mesenteric vessels (which are blood vessels in the abdomen) and distension of the bowels.

[18] In August of 2014, Ms. Shaw’s bariatric surgeons suggested that the best course of action to deal with her pain would be a diagnostic laparoscopy. This surgery was scheduled for the end of August of 2014, but never took place. During testimony, I was never given an explanation as to why this surgery had not been performed.

[19] The testimony that I heard and the evidence that I received confirmed that Ms. Shaw suffered from ongoing abdominal pain that waxed and waned during the couple of years before her passing.

c) The Visit to The William Osler Emergency Department - November 16-17, 2015

[20] On the evening of November 16^th, 2015, Ms. Shaw’s pain became intense. She and Mr. Thompson went to the emergency room at the Brampton Civic site of the William Osler Health System around 11:30 that evening. Ms. Shaw was complaining of abdominal pain that she said was 10/10 on the pain scale.

[21] Dr. Handler was the emergency room physician on duty. His shift had started around midnight, and he examined Ms. Shaw very shortly after she arrived at the hospital. Dr. Handler also ordered a series of tests on Ms. Shaw, including a CT scan and some bloodwork. The bloodwork did not reveal any urgent issues.

[22] The CT scan was examined by Dr. Jonathan Singer-Jordan, who was the on-call radiologist. Dr. Singer-Jordan works remotely from Israel. Other than observing that Ms. Shaw had an ovarian cyst, Dr. Singer-Jordan viewed the CT scan as normal and reported these results to Dr. Handler at around 4:00 a.m. Brampton time. Ms. Shaw was discharged by Dr. Handler at approximately 7:10 a.m. on November 18^th, 2015.

[23] Between admission and discharge, Ms. Shaw received morphine on two separate occasions, as well as Gravol (an anti-nausea medication), Buscopan (an anti-spasmodic medication) and Toradol (a strong prescription Non-Steroidal Anti Inflammatory Drug (“NSAID”)). There was a period when Ms. Shaw slept while she was in the emergency room, but there were also periods when she was in what appeared to be unmanageable pain. The amount of pain that she was in during her time in the emergency room, and especially at the time of discharge, is a contentious and significant issue that I will return to when I address the evidence on the standard of care.

[24] Shortly after Ms. Shaw was discharged, Dr. Mary Patricia Fitzgerald, a radiologist with William Osler, reviewed the CT scan of Ms. Shaw’s intestines. She had not seen a report from Dr. Singer-Jordan on file. One of her responsibilities as one of the “daytime” radiologists was to ensure that any of the overnight CT scans that has been performed had a written report completed about them. While Dr. Singer-Jordan had reported his findings orally to Dr. Handler, a written report was not on file. Dr. Singer-Jordan testified that he had completed some comments of not more than 250 characters in the electronic file, but that these comments have never been found.

[25] After reading the CT scan of Ms. Shaw’s abdomen, Dr. Fitzgerald contacted Dr. Handler for two reasons. First, to confirm that he had actually received a readout of the CT scan. Second, Dr. Fitzgerald wanted to ensure that Dr. Handler knew that there was an impression of twisting of mesenteric vessels in the middle abdomen region. This is a finding that Dr. Fitzgerald stated can be consistent with mesenteric post-operative hernias, which are a complication that can arise as a result of gastric bypass surgery. Dr. Handler does not recall the details of this conversation although he did provide some testimony about it. In any event, Ms. Shaw was not asked to return to the emergency room.

d) The Subsequent Hospitalization

[26] Ms. Shaw returned home on November 17^th, 2015. She remained there until the next morning. In the morning of November 18^th, 2015, Ms. Shaw’s condition became so bad that she had to be taken back to William Osler by ambulance. Ms. Shaw was referred for a surgical consultation during her time in the emergency ward. At approximately 5:00 p.m. on November 18^th, 2015, Dr. Belay, the surgeon, completed his consultation and determined that an urgent laparoscopy needed to be performed. Dr. Belay also identified that a laparotomy might need to be performed. There were some issues on the timing of the surgery because Ms. Shaw needed to be stabilized before she could be operated on.

[27] The difference between the two procedures is significant. A laparoscopy is the insertion of a camera into the abdomen to determine whether there are issues. It is less invasive than a laparotomy, which is a full incision into the abdomen that allows for repairs to significant problems that exist in the abdomen, including problems with the small bowel.

[28] The laparoscopy was performed at approximately 9:00 p.m. on November 18^th, 2015. The surgery revealed that Ms. Shaw’s bowel was herniated and showed signs of ischemia. Although the surgery had started out as a laparoscopy, a laparotomy was ultimately performed. The laparotomy resulted in the untwisting of Ms. Shaw’s bowels.

[29] During this surgery, the surgeon, Dr. Belay, consulted with the on-call bariatric surgeon at Humber River Regional Hospital. After that consultation, Dr. Belay determined that the best course of action was to irrigate Ms. Shaw’s bowel and close the abdomen temporarily to give the small bowel time to see whether it would re-perfuse (regain its colour and blood circulation) or whether it was becoming necrotic and was going to have to be removed. A further surgery was planned for twenty-four hours later to determine the status of Ms. Shaw’s small bowel.

[30] Unfortunately, Ms. Shaw’s small bowel did not recover. In the morning of November 19^th, 2015, portions of Ms. Shaw’s small bowel were showing frank signs of necrosis. Therefore, a substantial resection of Ms. Shaw’s small bowel was performed. Ms. Shaw’s prognosis was guarded and she was transferred to Humber River Regional Hospital. Ms. Shaw’s condition continued to deteriorate and further surgery was performed on November 22^nd, 2015. This surgery resulted in the removal of other portions of Ms. Shaw’s digestive system that had begun to show signs of necrosis.

[31] This surgery was not successful, and Ms. Shaw’s condition continued to deteriorate. She died on November 25^th, 2015.

e) The Claims

[32] The Plaintiffs in this case are Ms. Shaw’s estate, represented by Mr. Thompson, as well as Mr. Thompson on his own behalf and as litigation guardian for all four children of Mr. Thompson and Ms. Shaw.

[33] The Plaintiffs claim that the Defendant fell below the standard of care in his management of Ms. Shaw’s condition. The Plaintiffs are also claiming that the breach in the standard of care caused or contributed to Ms. Shaw’s demise.

[34] As a result, the Plaintiffs are advancing claims for damages under the Family Law Act, R.S.O. 1990, c. F.3. (“the FLA”). They are also advancing a claim for pain and suffering on behalf of Ms. Shaw’s estate, a claim for the payment of funeral benefits and a claim for dependency benefits. I will address these claims below. The Plaintiffs are also seeking pre-judgment interest on the FLA claims.

The Evidence

a) Document Briefs

[35] The parties filed several volumes of joint documents. As part of the document brief, they included an agreement pursuant to the Court of Appeal’s decision in Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15. That agreement states:

The parties agree that all of the documents in the Joint Document Brief are true copies of the originals, admitted without proof of the original documents, and are admitted to have been prepared, sent and received on or about the dates set out in the documents, unless otherwise shown in evidence at the trial. The documents will be admissible for the truth of their contents, in the same manner as if the author of the document had testified to the truth and accuracy of the contents, but the parties remain entitled to lead evidence to the contrary and for the parties to make arguments as to why particular evidence should or should not be accepted, and for the trial judge to reject such evidence. The parties are entitled to introduce into evidence additional documents not in the Joint Document Brief.

[36] I accept the parties’ submissions on the rationale for admitting these documents into evidence. Therefore, I have treated everything in the joint briefs of documents in accordance with the agreement of the parties.

[37] I also note that counsel helpfully provided a condensed joint book of documents. The documents in this book were all included in the joint books of documents and were treated in accordance with the agreement of the parties as described at paragraph 35.

[38] There was also an expert report on the life expectancy of both Mr. Thompson and Ms. Shaw. It was prepared by Dr. Jordan Brooks and marked as a numbered exhibit on the trial. The parties filed this report in lieu of calling the expert who has prepared the report.

[39] Dr. Brooks is a researcher in the field of life expectancy of people with medical conditions and disabilities. He has a doctorate in biostatistics as well as a masters in epidemiology. His role was to review the reported health conditions of Ms. Shaw and Mr. Thompson and determine their individual life expectancies if Ms. Shaw had survived in November of 2015. Based on that calculation, this allowed for the calculation of their joint life expectancies.

[40] I have treated this report as evidence that has been admitted for the truth of its contents. I understand that the report was treated as being factual by both of the damages experts that the parties called, and having reviewed the report I am of the view that this was a reasonable agreement. There was some question as to whether the Defendant’s expert on damages accepted this report as being the only adjustment that was required for life expectancy for the damages calculations. However, I clarified with counsel for Dr. Handler that this report should be accepted for the purpose of calculating damages.

[41] There were also two documents that were referred to in testimony. They were representations of what a simplified normal abdominal anatomy would look like as well as a representation of what the abdominal anatomy would look like after a Roux-en-Y surgery. As discussed with counsel, I received and reviewed these only for the purposes of better understanding the expert evidence. I have not treated them as if they were an actual representation of Ms. Shaw’s anatomy and the parties did not rely on them for that purpose either. This is why they were marked as a lettered, and not a numbered, exhibit.

b) Viva Voce Testimony

[42] In addition to the document briefs, I heard viva voce testimony from a series of witnesses. The Plaintiffs called the following witnesses:

a) Mr. Merton Thompson, the Plaintiff and Ms. Shaw’s husband.

b) Dr. Mary Patricia Fitzgerald, a radiologist.

c) Dr. Jim Carr, an economist.

d) Dr. Ron Holliday, a surgeon.

e) Dr. Alan Drummond, a specialist in emergency medicine.

[43] The Defendants called the following witnesses:

a) Dr. Jeffrey Handler, the Defendant.

b) Mr. Errol Soriano, an accountant.

c) Dr. Jonathan Singer-Jordan, a radiologist.

d) Dr. Timothy Jackson, a surgeon.

e) Dr. Amit Shah, a specialist in emergency medicine.

[44] Most of these witnesses were either participant experts or Rule 53 experts. The two radiologists were called as participant experts in accordance with the principles in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721. I will address their evidence in the section on expert evidence. The rest of the experts were Rule 53 experts.

[45] The parties agreed that the evidence of the financial experts was admissible. There was also no challenge to the admissibility of the Defendant’s experts on either causation or standard of care.

[46] However, the Defendant challenged the ability of the Plaintiffs’ causation expert (Dr. Ron Holliday) to provide any expert testimony whatsoever. The Defendant also challenged the Plaintiffs’ standard of care expert, Dr. Ron Holliday and his ability to provide expert evidence about causation. Given the extensive expert testimony in this case, it is appropriate to spend some time reviewing the principles underlying the admissibility of the expert testimony. Before doing that, however, I should briefly address the overarching principles of credibility and reliability.

Credibility and Reliability

[47] Credibility and reliability are different, but related, concepts. Credibility is the question of whether the witness is being truthful to the best of their ability. Reliability is the question of whether the witness can accurately observe, recall, and recount events. See: R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288 at para. 41.

[48] In assessing credibility, I am guided by the principles set out in Faryna v. Chorny (1951), 1951 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at para. 10:

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[49] This case is focused on the technical issues in respect of the standard of care and causation. However, there are factual determinations that must be made, especially in respect of the evidence of Dr. Handler and Mr. Thompson. I will set out my general conclusions about the credibility and reliability of their evidence at this point. I will address the credibility and reliability of the expert evidence as I come to it.

[50] Mr. Thompson presented as someone who was attempting to be truthful to the best of his ability. However, Mr. Thompson’s evidence was not particularly reliable for the following reasons:

a) Mr. Thompson provided inconsistent evidence about whether he went to work or did not go to work on the morning of November 17^th, 2015.

b) Mr. Thompson testified that he did not move more than thirty (30) feet away from Ms. Shaw while they were in the emergency room. However, the contemporaneous nursing notes reflect that Mr. Thompson took a walk outside at approximately 5:47 a.m.

c) Mr. Thompson provided more than one piece of evidence that was inconsistent with his discovery testimony. For example, at trial he testified that between 2012 and 2015, Ms. Shaw’s pain never went below 5/10 on a pain scale. However, on discovery, he testified that the pain would sometimes be at 1/10 on a pain scale.

[51] Dr. Handler also presented as someone who was generally attempting to be truthful to the best of his ability. However, there were three problems with Dr. Handler’s evidence that undermined, at least at some points, its’ reliability:

a) Dr. Handler’s notes of the events in question were, as discussed below, both cryptic and lacking in detail.

b) Dr. Handler had difficulties recalling specifics of conversations, especially his conversation with Dr. Fitzgerald after Ms. Shaw had been discharged from the emergency department.

c) Dr. Handler tended to understate the severity of Ms. Shaw’s condition. In addition to the problems with his memory about the conversation with Dr. Fitzgerald, Dr. Handler testified at the outset of cross-examination that Ms. Shaw was not having abdominal pain that was radiating into her back. The contemporaneous notes from both Dr. Handler and from the nurse who admitted Ms. Shaw to the emergency room show the opposite.

[52] Where I have relied on the evidence of either Dr. Handler or Mr. Thompson, I have explained why I have relied upon it. In reaching my conclusions about the facts in this case, however, I have relied primarily on the contemporaneous documentation.

Expert Evidence

[53] In addition to the participant experts, each side called an expert on standard of care, causation, and economic loss. As the trier of law, I have an obligation to consider the admissibility of all the expert evidence before I consider how it relates to the facts in this case. I will set out some principles that apply to the expert evidence as a whole. I will then deal with the admissibility of each expert’s evidence.

[54] I should note at the outset that there were some disputes over whether the answers to specific questions that the experts were asked were admissible. By and large, I have determined that this evidence was admissible and that any issues over the specific questions went to weight.

a) General Principles

[55] The test for the admissibility of an expert report is based on the Supreme Court of Canada’s decision in R. v. Mohan, 1994 80 (SCC), 1994 SCC 80, [1994] 2 S.C.R. 9. The following four criteria are considered in determining the admissibility of expert testimony:

a) Relevance;

b) Necessity in assisting the trier of fact;

c) The absence of any exclusionary rule, over and above the opinion rule itself; and

d) A properly qualified expert.

[56] The Supreme Court’s decision in White Burgess Langille Inman v. Abbot and Halliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 modified the test for the admissibility of expert testimony. The inquiry is now divided into two distinct steps. First, the judge considers the four Mohan criteria, as set out above. Second, the judge balances the potential risks and benefits of admitting the expert report.

[57] The risks associated with expert evidence include the possibility that expert evidence will not be subjected to the scrutiny that it requires, and that the expert evidence will be given more weight than it deserves. See: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330. The test for the admissibility of expert evidence has become stricter over the past few years (White Burgess, para. 16).

[58] Regardless of whether the parties agree that expert evidence is admissible, the judge still has a gatekeeping function. That function requires the judge to ensure that the expert evidence is properly scrutinized before it is admitted as evidence. The role of the trial judge as the gatekeeper for expert evidence and the responsibility to scrutinize that evidence were discussed in detail by the Court of Appeal in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584.

[59] In Bruff-Murphy, the Court stated (at para. 37):

The analysis under the second component is best thought of as a specific application of the court's general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12, 407 D.L.R. (4th) 383 (S.C.C.), at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (Ont. C.A.), at para. 76, application for leave quashed, [2000] S.C.C.A. No. 16 (S.C.C.): "The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence.” In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:

Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect -- a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.

The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.

[60] Turning to the criteria set out in Mohan, it is clear that the expert evidence that both sides are seeking to tender is relevant. It is medical and financial evidence that explains what has transpired in this case. It is also clear that this evidence does not breach any other exclusionary rule. As a result, the focus is on the question of necessity and of the qualifications of the experts.

[61] In considering whether the expert evidence is necessary, I must be satisfied that the evidence is more than merely helpful. It must relate to a fact in issue and assist me in proving that fact. In addition, while expert witnesses can provide triers of fact with “ready-made” inferences of complicated technical subjects, it is not appropriate for the expert to make factual findings. See: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at para. 56.

[62] From a general perspective then, the expert reports in this case are all necessary. They all provide me with a distillation of complicated technical subjects that I can use to infer what happened in this case. While there are disputes over the qualifications of some of the experts, my general view is that this testimony is all admissible. It is essential for me to understand the technical medical evidence, literature, and science that underpins this case. The findings of fact, however, are mine to make.

[63] There were also challenges to the weight that I should give to the evidence of various experts if I was prepared to admit their reports. The methodology to be used in assessing the weight of expert testimony was set out by Trimble J. in Sit v. Trillium Health Centre, 2020 ONSC 2458 at paras. 121-124. The approach can be summarized as follows:

a) A consideration of the qualifications and impartiality of the expert witness;

b) An assessment of the evidentiary basis of the expert opinion; and

c) An examination of the whole opinion.

[64] I will assess the weight to be given to various experts reports as I review the evidence on standard of care, causation, and damages.

[65] Before turning to the admissibility of each expert’s evidence, I should briefly deal with the medical literature that was entered into evidence. This was also an issue that was addressed in Sit, supra as follows:

[20] Learned articles, texts, or treatises are classic hearsay, and as such, are inadmissible. They are, however, touchstones by which one measures the expert’s opinion. In other words, these references demonstrate that others share the expert’s opinion, thereby reinforcing the expert’s credibility.

[21] Incorporating references from an article or treatise into his or her evidence does not relieve the expert from the obligation of actually expressing the view in the report or his or her evidence. By referring to and adopting a portion of a text or article, that portion of the text or article becomes part of the expert’s opinion evidence. By referring to a publication in a report or evidence, the expert does not incorporate, by reference, the entire publication into the report: Cheesman et al v. Credit Valley Hospital et al., 2019 ONSC 5783 [sic] (Ont. S.C.J.), at para. 215.

[66] In addition to these uses, medical literature can also be used as a touchstone to assist the Court in determining when certain medical problems or complications became widely known in the medical community or among certain specialists.

b) The Admissibility of Each Expert

The Damages Experts

[67] I will deal with the damages experts first as there were no challenges to the admissibility of their evidence. I received C.V.s from both of these experts. Dr. Carr is an economist with more than forty years of experience. Mr. Soriano is a Chartered Accountant and Chartered Business Valuator with more than thirty years of experience. They have been qualified by the Courts to provide evidence on damages calculations on numerous occasions in the past.

[68] In spite of the differences in qualifications, they are both well-qualified to provide the Court with their views on the calculation of damages and the basis for those calculations. That evidence is necessary to the Court’s consideration of the matter as it is not within the Court’s knowledge.

[69] Both experts otherwise meet the criteria set out in Mohan and elaborated upon in White Burgess. As a result, I qualified both experts. Prof. Carr was qualified to give opinion evidence on the economic losses associated with Ms. Shaw’s passing. Mr. Soriano was qualified as an expert in the fields of damages quantification and financial analysis, and qualified to give opinion evidence on the calculation of the pecuniary losses associated with the passing of Ms. Shaw.

The Evidence of Dr. Mary Patricia Fitzgerald and Dr. Jonathan Singer-Jordan

[70] Counsel for the Plaintiff tendered Dr. Fitzgerald as a participant expert in the area of the care of Ms. Shaw with respect to diagnostic radiology. This tender was in accordance with the principles set out in Westerhof v. Gee Estate, 2015 ONCA 206, (2015) 124 O.R. (3d) 721. There was, appropriately, no objection to this tender by counsel for the Defendant.

[71] Although I was not provided with a C.V., Dr. Fitzgerald’s testimony revealed that she has extensive training, experience and expertise as a radiologist. She received her United Kingdom fellowship in 1988, her Canadian fellowship in 1991 and has been practicing as a staff radiologist since 1992. The Court has no capability to review diagnostic imaging, and understanding the results of that imaging is essential to the Court’s consideration of this case. Therefore, Dr. Fitzgerald is qualified to provide evidence in the area in which counsel sought to tender her.

[72] Similarly, the Defendants tendered Dr. Singer-Jordan as a participant expert in the area of the care of Ms. Shaw with respect to diagnostic radiology. Again, this tender was without objection from the other side. Dr. Singer-Jordan’s resume is part of the evidentiary record. It reveals that he also has extensive training, experience and expertise as a radiologist. His evidence was also admissible for the same reasons that I admitted Dr. Fitzgerald’s evidence.

[73] I should note that one point arose during Dr. Singer-Jordan’s testimony. Counsel for Dr. Handler sought to ask Dr. Singer-Jordan questions about a CT scan that had been read by Dr. Fitzgerald. Given that Dr. Singer-Jordan had never seen this CT scan before and had not considered it in his work on Ms. Shaw’s case, it was beyond the scope of his testimony as a participant expert and I ruled that testimony inadmissible.

The Evidence of Dr. Ron Holliday

[74] The Plaintiffs sought to tender Dr. Holliday as an expert in general surgery, qualified to give evidence regarding the care and treatment of a patient in the emergency room in 2015 and the effect of a delay in treatment of Ms. Shaw’s abdominal pain. The Defendant challenged Dr. Holliday’s report on three grounds:

a) Dr. Holliday had not been an active surgeon since 2010 and, therefore, could not provide expert testimony about events that took place in 2015.

b) Dr. Holliday should not be permitted to testify about the standard of care as he is not a specialist in emergency medicine.

c) Dr. Holliday’s report was too conclusory and did not set out the basis for his opinions.

[75] A voir dire was held into Dr. Holliday’s qualifications. In addition, I had the advantage of reading the reports of both Dr. Holliday and of Dr. Timothy Jackson, the Defendant’s standard of care expert, in considering the admissibility of Dr. Holliday’s opinions. I will deal with each of the issues that the Defendant has raised in turn.

[76] Before doing so, I should also note that I provided the parties with the bottom-line ruling on these challenges during the trial and permitted Dr. Holliday to testify. During his testimony, there were several objections to questions he was asked. I will deal with those objections as necessary in my evaluation of the evidence. To the extent that I do not deal with an objection in these reasons, it is either because I have reviewed the transcripts and determined that the objection was dealt with adequately during the trial or because it is not necessary to deal with the objection given my findings on this case.

Does Dr. Holliday’s Retirement Disqualify Him from Testifying?

[77] No.

[78] Dr. Holliday’s resume discloses extensive experience as a surgeon, both in performing surgery and in teaching at the University of Western Ontario (“UWO”). Dr. Holliday performed surgery at the Victoria Campus of the London Health Sciences Centre. He also taught in the Department of Surgery in the Schulich School of Medicine at UWO.

[79] In his career as a surgeon, Dr. Holliday also had experience in both urgent abdominal and bariatric surgery, although Dr. Holliday did not perform the Roux-en-Y procedure that was performed on Ms. Shaw in 2012.

[80] Dr. Holliday became a Professor Emeritus in 2010 and ceased being active at the London Health Sciences Centre at that time. However, between 2010 and 2015, Dr. Holliday continued to perform surgery at a private clinic called Medpoint. In his testimony, Dr. Holliday referred to this as lump and bump surgery. Dr. Holliday performed this work until 2015.

[81] In addition, Dr. Holliday continues to work one day a week at the Strathroy Hospital. He assists and mentors the young surgeon that works at that facility. Generally, they do non-urgent surgery, although from time to time they will be called upon to perform urgent surgeries.

[82] Counsel for the Defendant argued that the reduction in the work that Dr. Holliday was performing meant that he could not offer an opinion on events that had taken place after he “retired.” I reject this argument for the following reasons:

a) Dr. Holliday has not retired. He continues to be involved in the performance of surgery to this date.

b) The events in this case took place only five years after Dr. Holliday became a Professor Emeritus. As a result, Dr. Holliday would have had a familiarity with the causation issues in this case.

c) Dr. Holliday’s familiarity with the causation issues in this case is also established by the fact that he has dealt with these types of cases throughout his career as a surgeon.

[83] In my view, Dr. Holliday’s very substantial experience as a surgeon is both relevant enough and current enough to qualify him as an expert in this case.

Can Dr. Holliday Offer an Opinion on Both Causation and the Standard of Care?

[84] This is a much more difficult issue. In medical malpractice cases, experts usually offer opinions on issues that are within their area of expertise. In this case, the Defendant argues that Dr. Holliday’s opinion on standard of care is improper and that the issue is more appropriately left to the standard of care experts.

[85] The Plaintiffs argue that Dr. Holliday can provide an opinion on both the standard of care and causation because there can be an overlap between the knowledge of specialists and of general practitioners. There can also be an overlap between the knowledge of different specialists. The Plaintiffs also point out that the Defendant’s causation expert, Dr. Timothy Jackson, opines on the standard of care.

[86] The Defendant argues that generally specialists only opine on the areas in their specialty. The cases where cross-specialty opinions are permitted are very limited and do not include this case. The Defendant argues that Dr. Holliday is not an expert in emergency medicine and cannot comment on what Dr. Handler should have done on the morning of November 17^th, 2015.

[87] The Plaintiffs have referenced the Court of Appeal’s decision in Robinson v. The Sisters of St. Joseph of the Diocese of Peterborough in Ontario (1999), 1999 2199 (ON CA), 117 O.A.C. 331 (C.A.). In that decision, the Court stated:

[1] There is no general rule that a specialist cannot offer an opinion as to the applicable standard of care governing medical treatment provided by a general practitioner, or that the specialist cannot offer an opinion as to whether the general practitioner met the applicable standard. The admissibility of the specialist's opinion depends on the subject matter on which that opinion is offered and the specialist's training and experience. Surely, there are treatments and procedures which are common to the practices of general practitioners and specialists alike.

[88] This statement of the law explains the blurred lines that often exist at the boundaries between different medical specialties. There are going to be commonalities between the experts and areas where the questions to be answered do not fit neatly into one area of expertise or the other. However, there are two problems with applying this statement to Dr. Holliday’s evidence.

[89] First, the law on expert evidence has changed in the last twenty-five years. It is now more difficult to have expert testimony admitted into evidence. The Court’s enhanced gatekeeping role came about because of the concerns expressed in the report of the Goudge Inquiry and I must be mindful of that enhanced gatekeeping responsibility.

[90] Second, the Court of Appeal has itself limited the occasions when experts can cross boundaries and provide testimony in an area that is not their specialty. In Barber v. Humber River Regional Hospital, 2016 ONCA 897, the Court stated (at para. 91):

I see no reversible error in this ruling. The courts have recognized that, in a proper case, a specialist physician’s opinion on the level of care, skill, knowledge and judgment expected from a non-specialist medical practitioner may be admissible having regard to the nature of the medical question at issue: see for example, Robinson v. St. Joseph of the Diocese of Peterborough in Ontario (1999), 1999 2199 (ON CA), 117 O.A.C. 331 (Ont.C.A.), at para. 8; Briffett v. Gander & District Hospital Board (1996), 37 Nfld. & P.E.I.R. 271 (Nfld. C.A.), at paras. 47-48; Quintal v. Datta (1988), 1988 5084 (SK CA), 68 Sask.R. 104 (Sask.C.A.), leave to appeal refused, [1988] S.C.C.A. No. 488 (S.C.C.). In other words, the opinion of a medical specialist regarding the appropriate standard of care for a general medical practitioner may be admissible as necessary, relevant and helpful to the trier of fact. It is for the trial judge to determine the weight to be given to the specialist physician’s opinion, having regard to his or her different work experience and specialized training.

[91] As I read this decision, specialist experts can comment on areas that are within the general knowledge of physicians. The decision in Robinson is not a licence for specialists to comment on areas that are within other specialties. For example, in Georghiades v. MacLeod, 2005 14149 (ON SC), the Court grappled with the distinction between the expertise of a surgeon and the expertise of a practitioner in emergency medicine and stated (at para. 83):

The opinion evidence of the nephrologists, other than with respect to hydration as part of discharge instructions, primarily addressed dialysis and kidney transplant which pertains to the claim for damages. While there is a direct link between emergency physicians and surgeons, given the method of referral, the standard of care in this case primarily relates to the discharge instructions required by an emergency physician. Accordingly, in my view, the opinion evidence of the surgeons is helpful with respect to surgery procedures but is not specific to the standard of care in this issue.

[92] This passage acknowledges the connection between the two specialties, but also shows that bright lines can (and should) be drawn between them. In this case, the standard of care evidence covers both the question of whether Dr. Handler should have discharged Ms. Shaw and, if so, what instructions she should have been given. Those facts are within the expertise of a practitioner in emergency medicine and not a surgeon.

[93] I acknowledge that the Defendant’s causation expert also provided standard of care evidence in his report, particularly when he says, “Ms. Shaw died tragically after developing bowel ischemia from an internal hernia. This unfortunate outcome occurred despite Dr. Handler taking all appropriate measures.”

[94] However, the fact that the Defendant’s causation expert provided standard of care evidence in his report does not make that evidence any more admissible. The Courts have a gatekeeping function over this evidence. In my view, when the decisions above are considered, it is clear that issues of the standard of care relate to emergency medicine and are beyond the scope of expertise of a surgeon.

[95] In reaching this conclusion, I recognize the potential risks of over-siloing the evidence of experts. However, in this case I am of the view that a bright line can be drawn, with the emergency medicine experts providing evidence about the question of whether a surgical consult should have been sought on the morning of November 17^th and the surgeons providing evidence about the question of what the likely outcome of that consultation would have been.

[96] Finally, I should note that, in arguing this issue, counsel for the Defendant was prepared to limit Dr. Jackson’s evidence to the issue of causation. I would impose that limitation on his evidence in any event.

Was Dr. Holliday’s Report Merely Conclusory?

[97] No.

[98] Experts cannot merely provide a bald statement that the care a treating physician provided fell below the standard of care or that the Plaintiff’s injuries were caused by the physician’s breach of the standard of care. A proper expert report will explain the what, why and how of an expert’s conclusions (Cheesman et al v. Credit Valley Hospital et al., 2019 ONSC 5783 at para. 19).

[99] In this case, Dr. Holliday’s report can only be admissible on the causation issue as I have defined it. Therefore, to be admissible, it must address what would have happened if a surgeon had been consulted, how a surgeon would have dealt with the case and why that sequence of events would have changed the outcome in this case.

[100] Dr. Holliday’s reports do all of those things. In that respect, I note:

a) It provides an explanation of the risks that exist for the development of internal hernias after gastric by-pass surgery.

b) It provides an explanation of the significance of the symptoms that were presenting as well as the significance of the CT scan.

c) It provides an explanation of what Dr. Holliday viewed as the likely outcome of an earlier surgical consultation.

[101] For these reasons, I qualified Dr. Holliday as an expert in general surgery, permitted to provide opinion evidence on the involvement of a general surgeon in the care and treatment of a patient in the emergency room in 2015 and the impact of any delay in the treatment of Ms. Shaw’s abdominal pain in 2015.

The Evidence of Dr. Alan Drummond

[102] Counsel for the Defendant properly conceded that Dr. Drummond was an expert qualified to opine on the standard of care in this case. Dr. Drummond’s resume demonstrates extensive experience and expertise in the field of emergency medicine. He was tendered by the Plaintiffs as an expert in the field of Emergency Medicine and permitted to provide opinion evidence on the issue of the standard of care of an emergency physician in Ontario in 2015 regarding the management of a patient with abdominal pain.

[103] The challenge to Dr. Drummond’s evidence was a much narrower issue about Dr. Drummond’s ability to provide testimony about causation. The issue was argued on the basis of the written reports. I provided the parties with a bottom-line decision prior to Dr. Drummonds testimony. I will now set out the reasons for that decision.

[104] The Plaintiffs wanted Dr. Drummond to provide specific evidence in this case about both the standard of care and causation. They took the position that, as an emergency room physician, Dr. Drummond was qualified to comment on both the standard of care and the possible outcomes if the standard of care was not met. The Defendant opposed this tender and sought to strictly limit Dr. Drummond to providing evidence about only the standard of care. The Defendant asserted that the opinions on causation should be left to the surgeons.

[105] The case law that applies to this issue is the same as the case law that applied to this issue when it arose in respect of Dr. Holliday’s expertise. I have considered the same authorities in reaching my decision.

[106] Again, the basis on which the parties seek to tender Dr. Drummond is relevant to my analysis. He is an emergency room physician, with over thirty (30) years of experience in that area. He will understand both what the standard of care would be and what general consequences might flow from a breach of that standard of care.

[107] In this case, some of the general evidence on causation can be elicited from Dr. Drummond. For example, the fact that “bad outcomes” could have flowed from a misdiagnosis or a non-diagnosis of Ms. Shaw’s condition is something that, while it touches on causation, is within Dr. Drummond’s expertise. Emergency physicians are expected to know both the conditions that they are diagnosing and what the general consequences of the condition could be. It is one of the ways that they identify what is an emergent or urgent condition.

[108] I am fortified in that conclusion by the fact that Dr. Drummond’s report references literature on the type of condition that Ms. Shaw had that was published in journals of emergency medicine. This suggests that the knowledge of the condition and its consequences are within the expertise of an emergency medicine specialist.

[109] However, Dr. Drummond cannot testify that, in this case, an earlier surgical consult would have prevented Ms. Shaw’s death. He cannot, more generally, provide expert testimony on causation in this specific case. His evidence is limited to the standard of care of an emergency physician, including the knowledge that an emergency physician should have had about Ms. Shaw’s condition.

The Evidence of Dr. Amit Shah

[110] Dr. Shaw obtained his medical doctorate in 1994 and completed his emergency medical fellowship in 1997. He has worked as an emergency room doctor in both St. Thomas and London.

[111] Dr. Shaw was the chief of emergency medicine at St. Thomas-Elgin General Hospital and currently serves as the emergency department lead for Ontario Health for the Southwest Region. He has been an Assistant and an Associate Professor at the UWO medical school since July of 2006.

[112] The Defendant sought to qualify Dr. Shah as an expert qualified to give opinion evidence on the standard of care of an emergency physician practicing in Ontario in 2015. The Plaintiff did not object to qualifying Dr. Shah and, having reviewed his resume, I was satisfied that he should be qualified to provide the evidence the Defendant sought.

The Evidence of Dr. Timothy Jackson

[113] Dr. Jackson received his medical degree from McMaster University in 1993. He also has a Masters in Public Health from Harvard. He has trained as a general surgeon and has been a Fellow in General Surgery with the Royal College of Physicians and Surgeons of Canada since 2009. He has specialized in bariatric surgery and has been the surgical director of the bariatric surgery program at the University Health Network (“UHN”) since 2017.

[114] Dr Jackson has worked as a surgeon, including performing bariatric surgery, at UHN since 2010 and has been the operating room medical director since July of 2019. Dr. Jackson has also been an Assistant and/or Associate Professor at the University of Toronto since 2010. Dr. Jackson also has a certificate from the American Society for Metabolic and Bariatric Surgery. This is a specific qualification for bariatric surgeons. Dr. Jackson also teaches bariatric surgery and is accredited as a bariatric surgeon in Ontario by the Ontario Bariatric Network.

[115] The Defendant sought to qualify Dr. Jackson to provide expert evidence in the area of general surgery, specifically the involvement of a general surgeon in the care and treatment of a patient in the emergency room in 2015 and the impact of any delay in the treatment of Ms. Shaw’s abdominal pain in 2015.

[116] The Plaintiff did not object to qualifying Dr. Jackson, and having reviewed his resume and qualifications, I am of the view that he is qualified to give expert evidence.

[117] I would note, however, that Dr. Jackson’s report provides opinions on the standard of care. As I have set out in my analysis of Dr. Holliday’s evidence (see paras. 84 and following), the opinions of the surgeons on standard of care are not admissible. That ruling also applies to Dr. Jackson’s evidence and his testimony was accordingly limited.

The Issues

[118] In the course of argument, Plaintiff’s counsel referred me to the decision in Grivicic v. Alberta Health Services (Tom Baker Cancer Centre), 2015 ABQB 811, [2016] A.W.L.D. 152. In that decision, at paras. 14-15, the Court sets out the four elements that must be established in order to make a finding of negligence, as follows:

a) The physician must owe the patient a duty of care;

b) The physician must have breached the applicable standard of care;

c) The Plaintiff must have suffered an injury or a loss; and

d) The physician’s failure to comply with the applicable standard of care was the actual and legal cause of the loss or injury.

[119] I asked counsel for Dr. Handler whether there was any dispute that Dr. Handler owed Ms. Shaw a duty of care or that Ms. Shaw had suffered an injury. Counsel conceded both of these points. As a result, the issues to be determined are as follows:

a) Did Dr. Handler breach the standard of care in his treatment of Ms. Shaw?

b) If so, did Dr. Handler’s breach cause Ms. Shaw’s death?

c) If Dr. Handler’s breach of the standard of care caused Ms. Shaw’s death, what damages are owing?

[120] I will deal with each issue in turn. Before beginning my analysis, I should briefly address the issue of the relationship between the standard of care and causation. Generally, the law is that the trier of fact considers causation only after finding a breach of the standard of care.

[121] However, the facts underpinning the standard of care and causation analyses should not be over-compartmentalized. In Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, rev’d Armstrong v. Ward, 2021 SCC 1, van Rensburg J.A.[^1] stated:

[138] I agree with my colleague, at paras. 59 to 63, that typically, it makes sense for the trier of fact to consider causation only after finding a breach of the standard of care: see, for example, Bafaro v. Dowd, 2010 ONCA 188, 260 O.A.C. 70 (Ont.C.A.), at paras. 35-36. Determining standard of care before causation ensures that the trial judge does not wrongly reason backwards from the fact of the injury to determine that the standard of care has been breached. However, I also agree with my colleague’s observation that at times the court will need to determine “what happened” (that is, the factual cause of the plaintiff’s injury) in order to resolve whether the standard of care has been breached. Determining factual (and not “but-for”) causation is sometimes necessary before a conclusion can be reached on whether there has been a breach of the standard of care.

[139] Indeed, this court has determined that, in some cases, it will be an error for the trial judge to fail to determine “how the injury occurred” before assessing standard of care.

[122] In this case, in order to determine whether there was a breach of the standard of care, I have to determine what was going on at the time that Ms. Shaw was discharged. From that analysis, I can then determine what that would have indicated to Dr. Handler about Ms. Shaw’s condition, given the information he received, both before and after he discharged Ms. Shaw. Addressing those points will allow me to determine whether there was a breach of the standard of care. The causation analysis follows separately and requires a consideration of what happened next.

Issue #1- The Standard of Care

[123] I will divide my reasons in this section into four parts. First, I will set out the legal principles that apply to my analysis. Second, I will set out the facts of what happened on the night of November 16^th and the early morning of November 17^th, 2015 in the emergency room. Then, I will set out the opinions on the standard of care from both experts. Finally, I will set out my conclusions on whether the standard of care was breached.

a) The Legal Principles

[124] The parties provided me with very helpful briefs on the standard of care and causation early in the trial. I have reviewed those briefs, as well as the parties’ oral and written final arguments in detail. From those materials, I have extracted six key points that apply to my analysis of the standard of care.

[125] First, the general standard of care has long been accepted by the Courts. It was described more than half a century ago in Sylvester v. Crits et. al., [1956] O.R. 132, 1956 34 (C.A.), aff’d 1956 29 (SCC), [1956] S.C.R. 991 as follows:

[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 of care 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.

[126] More recently, in Ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, the test was described as follows:

[46] It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field. [Citations omitted.]

[127] It must be remembered, however, that a standard of reasonableness is not a standard of excellence or a standard of perfection. See: Carlsen v. Southerland, 2006 BCCA 214, 53 B.C.L.R. (4th) 35 at paras. 13 and 15; Royal Victoria, at para. 86.

[128] Second, it must also be remembered that an unfortunate outcome (such as the one in this case) does not constitute proof of negligence. The question is whether the act or omission would be acceptable conduct for a reasonably prudent and diligent professional in the same circumstances. See: St. Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491 at para. 53.

[129] Third, an assessment of the standard of care must be judged based on what the physician knew at the time of the treatment. The assessment should not focus on the consequences of the treatment and should not be done retrospectively.

[130] As set out in Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351 at para. 28:

As the judgment from Hôpital général de la région de l'Amiante, supra, indicates, courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

[131] Fourth, a mere error in judgment is distinguishable from professional fault, and a mere error in judgment will not attract a finding of negligence. As noted in Bafaro v. Dowd, 2008 45000 (ON SC), aff’d 2010 ONCA 188:

[28] Whether or not the physician was negligent or simply exercised an error in judgment will be determined on a case by case basis having regard to the particular facts in each case:

Diagnosis is, above all, an exercise of the physician's judgment based on his training, experience and, perhaps, intuition. It is trite to say that a physician is not liable for injuries flowing from errors of judgment (as opposed to actual negligence). The real difficulty lies in determining whether injurious behaviour by a physician was negligence or merely an error in judgment and it is the facts in each case which will determine the answer to this crucial question.

Dean v. York County Hospital et al., [1979] O.J. No. 348 (High Ct.).

[132] Fifth, a professional who is following a standard practice will generally be able to rely on adherence to that standard practice as an answer to a claim of negligence. In Crawford (Litigation Guardian of) v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont.S.C.), aff’d 2004 22314 (ON CA), 2004 26 C.C.L.T. (3d) 246 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 496 at para. 228, the Court stated:

Reference to Johnston v. Wellesley Hospital (1970), 1970 273 (ON SC), [1971] 2 O.R. 103 (Ont. H.C.), at 113-4 is also helpful. The court said:

On the other hand, where, contrary to the Crits v. Sylvester case, the act or omission complained of pertains to a strictly medical matter, where medical judgment and technique are involved, the defence that the act was done in accordance with standard recognized medical practice is, in most cases, if not always, a complete answer to an allegation of negligence; see Gent and Gent v. Wilson, 1956 128 (ON CA), [1956] O.R. 257 at pp.265-6, 2 D.L.R. (2d) 160 at p. 165, where Schroeder, J.A ., in delivering the judgment of the Court of Appeal, stated:

Each case must, of course, depend upon its own particular facts. If a physician has rendered treatment in a manner which is in conformity with the standard and recognized practice followed by the members of his profession, unless that practice is demonstrably unsafe or dangerous, that fact affords cogent evidence that he has exercised that reasonable degree of care and skill which may be required of him.

[133] The question of whether there is a standard practice is a question of fact.

[134] Sixth, in some circumstances there can be a duty to refer someone to a different physician. In Crawford, the Court set out the duty as follows (between paragraphs 230 and 231):

Recognizing that no person is infallible or the fountain of all knowledge and skill, the Supreme Court of Canada has said there is a duty upon a doctor in some circumstances to refer a patient to another doctor. The term "refer" may mean either that the doctor confer with a colleague and then carry on treatment personally, or that the patient is passed completely into the care of another doctor.

There is no absolute test to ascertain when a doctor should refer or consult, but the cases suggest that it is indicated when:

1. the doctor is unable to diagnose the patient's condition;

2. the patient is not responding to the treatment being given;

3. the patient needs treatment which the doctor is not competent to give;

4. the doctor has a duty to guard against his or her own inexperience (e.g. the student doctor); or

5. the doctor cannot continue to treat a patient (e.g., while on vacation).

I agree that the duty to refer involves a matter of judgment. That, however, does not mean that a court cannot examine the grounds upon which the judgment is exercised.

[135] More generally, for an emergency room physician, it can be appropriate to discharge patients who are still feeling pain rather than referring them to a surgeon or other specialist for a consultation: Lee v. Lee, 2015 ONSC 7509 at para. 150 et. seq.

[136] Ultimately, the decision of an emergency room doctor to consult a surgeon or to take other action is a matter of judgment. As noted in Lyon v. Ridge Meadows Hospital, 2007 BCSC 1000 at para. 102:

In managing a patient with abdominal pain for whom a definitive diagnosis cannot be established, the decision to admit the patient for observation or to call a surgeon for a second opinion relies on the experience and clinical judgment of the doctor. For a patient deemed stable, conservative management is followed. If the patient is unstable, then a surgical consultation and further investigation is mandated. A majority of patients in similar circumstances to Ms. Summers’ will experience symptom resolution within 12 to 24 hours. A minority will develop small bowel obstruction and require surgery.

[137] However, even though it is a matter of judgment, the Court still has the authority and ability to examine the grounds on which the judgment was made.

[138] With that background in mind, I now turn to the relevant facts.

b) The Events of November 16^th and 17^th, 2015

[139] I have already described Ms. Shaw’s ongoing history of pain. On the evening of November 16^th, 2015, Ms. Shaw’s pain became unbearable and she had Mr. Thompson take her to the emergency room. She arrived at the emergency room at about 11:30 p.m. and had to be transported into the emergency room in a wheelchair. She was first seen by the nursing staff, and then referred to Dr. Handler. When she was seen by the nursing staff, she was triaged and given a 2 on the Canadian Triage and Acuity Score (“CTAS”).

[140] The CTAS score is a tool used to triage patients. A 2 on the CTAS scale means that the patient is in significant distress and should generally be seen by a physician within a half an hour of being admitted.

[141] In her time in the emergency room, several records were created by different people. Dr. Handler wrote on an emergency record that had typewritten fields that had been populated by someone else. This was done in handwriting that, in Dr. Handler’s own words, was “a little bit cryptic”. I found parts of it indecipherable. He also wrote a couple of additional pages of orders, which were for tests and medications. The nurses also prepared a series of notes and charts documenting various events during the course of Ms. Shaw’s stay at the hospital. Finally, there were various tests that were ordered by Dr. Handler and were performed.

[142] As part of closing argument, I asked each side to prepare a chronology of events from the course of Ms. Shaw’s time in the hospital. I have reviewed those chronologies and have completed my own chronology of what took place in the hospital:

Time	Event Description	Medical Participant(s)
November 16, 2015
11:38 p.m.	Ms. Shaw arrives at the hospital, is triaged and her vital signs are taken. The vital signs are grossly normal. She arrives by wheelchair. Pain score 10/10.	Nursing staff
November 17, 2015
12:10 a.m.	Dr. Handler conducts a physical exam on Ms. Shaw. Ms. Shaw’s abdomen was soft and there was no “rebound tenderness”, which would have been a physical sign of an underlying problem. Dr. Handler also took a history from Ms. Shaw and reviewed the history that had been provided by the nurses.	Dr. Handler
12:20 a.m.	Dr. Handler orders a series of blood tests, which were the standard abdominal panel for abdominal pain and other tests. Dr. Handler orders a CT scan of Ms. Shaw’s bowel and abdomen to determine whether there was a bowel obstruction. Dr. Handler orders both an IV drip and pain medications, Gravol and morphine.	Dr. Handler
12:30 a.m.	Ms. Shaw is assessed and her vitals are taken again. Her blood pressure has changed, her complaints of pain have not changed (pain score 10/10), and the vitals are generally normal.	Dr. Handler was present for this. Not clear if the nursing staff were present, but Dr. Handler performed the examination.
12:40 a.m.	Nursing staff return from break and are advised of the orders in respect of the IV and the medications. Ms. Shaw is to be sent for her CT Scan. Gravol and 6 m.g. of morphine are administered.	Nursing staff
1:20 a.m.	Ms. Shaw continues to experience considerable pain, even after the administration of 6 m.g. of morphine. An additional 4 m.g. is ordered	Nursing staff/Dr. Handler- directions for medication provided verbally.
2:24 a.m.	CT Imaging is performed	CT Staff
3:00 a.m.	Ms. Shaw returns from the Diagnostic Imaging department- still complaining of significant pain. Vitals were taken and remained similar. Pain score remained 10/10	Nursing staff.
3:30 a.m.	Dr. Handler ordered 10 m.g. of Buscopan to be administered by IV.	Dr. Handler.
3:40 a.m.	Buscopan administered. Ms. Shaw had to have a new IV started because she may have removed hers	Nursing staff
4:00 a.m.	Ms. Shaw and Mr. Thompson both noted to be sleeping by the nursing staff. No breathing distress noted.	Nursing staff
4:00 a.m.	Dr. Handler discussed the CT scan with Dr. Singer-Jordan. All that was noted by Dr. Singer-Jordan was the presence of ovarian cysts and nodes. No obstruction was noted	Dr. Handler/Dr. Singer-Jordan
4:45 a.m.	Ms. Shaw woke up and was crying aloud about the pain. Ms. Shaw was noted to be unmanageable, and Mr. Thompson was demanding that she be given more pain medications. She was given 15 mg. of Toradol.	Nursing staff/Dr. Handler provided the directions for the medication.
5:02 a.m.	Ms. Shaw’s vitals are taken again. They have not significantly changed since admission	Nursing staff
5:10 a.m.	An elixir of KCL (which is a potassium supplement) is ordered for Ms. Shaw	Dr. Handler
5:20 a.m.	Ms. Shaw is reassessed by the nursing staff and determined to still be having diffuse abdominal pain. The level of pain has not changed and remains 10/10.	Nursing staff
5:36 a.m.	The KCL is administered to Ms. Shaw. Ms. Shaw is still crying and demanding more pain medications.	Nursing staff
5:47 a.m.	Mr. Thompson left to go for a walk outside. Ms. Shaw was still in pain at this point and still demanding more morphine	Nursing staff.
6:40 a.m.	Ms. Shaw “is still the same”.	Nursing staff
7:00 a.m.- 7:15 a.m.	Dr. Handler assesses Ms. Shaw and discharges her home with a prescription for Buscopan. The nursing notes reflect that Ms. Shaw did not disagree with the decision to discharge her home. Dr. Handler testified that Ms. Shaw’s pain decreased and that he made a note of that on the Emergency record. The nursing notes do not have any indication of a change in Ms. Shaw’s pain presentation.	Nursing staff/Dr. Handler
By 8:00 a.m.	Dr. Fitzgerald reviews the CT scan and determines that there is twisting of the mesenteric vessels, which could suggest a bowel obstruction. She communicates those findings (which are different from the findings of Dr. Singer-Jordan) to Dr. Handler	Dr. Fitzgerald/Dr. Handler
11:30-11:50 a.m.	Dr. Fitzgerald and Dr. Singer-Jordan communicate by e-mail about the CT Scan	Dr. Singer-Jordan/Dr. Fitzgerald
12:15 pm.	Dr. Fitzgerald completes her report on the CT scan	Dr. Fitzgerald

[143] From this chronology and the testimony supporting it, I have determined that there are three specific factual questions that need to be resolved:

a) Was Dr. Handler aware of Ms. Shaw’s bariatric surgery, and the risks that came with bariatric surgery?

b) Did Dr. Handler refer Ms. Shaw to her bariatric surgeon for prompt follow-up?

c) Had Ms. Shaw’s pain decreased at the time of her discharge?

[144] I will deal with each question in turn.

Awareness of Bariatric Surgery and Risks

[145] I conclude that Dr. Handler was clearly aware of Ms. Shaw’s bariatric history for three reasons:

a) It is listed in both his notes and in the emergency admission reports.

b) Mr. Thompson does not dispute the fact that both Dr. Handler and other people at the hospital were told of this history.

c) The tests that Dr. Handler ordered went beyond the regular tests order for abdominal pain and focused on other markers for bariatric problems. In particular, as set out in the evidence of Dr. Shah, a CT scan results in exposure to radiation, and would not necessarily have been ordered for a patient who did not have a history of a gastric bypass.

[146] In addition, Dr. Handler was aware of the risks that came with bariatric surgery. He was extensively cross-examined on this point, and the cross examination was based on an article entitled Presentation and Management of Common Post-Weight Loss Surgery Problems in the Emergency Department, Edwards et. al., Annals of Emergency Medicine, Volume 47, No. 2: February, 2006, pages 160-67. That article states (at p. 164):

Patients with internal hernias typically present with nonobstructive, intermittent, crampy, epigastric abdominal pain that often radiates to the back. Unless the obstruction has led to ischemic compromise of the bowel, the abdominal examination is usually unrevealing. The herniation is often of the "excluded" or bypassed Roux limb, and therefore there are no air fluid levels on plain radiographs. As many as 20% of patients with obstruction as a result of internal hernias will have normal CT scan results of small-bowel series." Laboratory results may be normal in these patients.

[147] Dr. Handler acknowledged that he was well aware of the problems arising from bariatric surgery in 2015. Dr. Handler originally took issue with applying the first sentence in this passage to Ms. Shaw and advised that he did not have a note on his emergency record about the pain radiating to Ms. Shaw’s back. He was subsequently cross-examined about the contents of the triage report and the nursing examination. There is no dispute that the triage report states that Ms. Shaw had abdominal pain that was radiating into her back. Dr. Handler testified that he viewed the nursing examination notes as unclear on this point. I disagree. In my view, the notes are clear and consistent with the triage report. Ms. Shaw was suffering from abdominal pain radiating into her lower back when she came to the emergency room. Dr. Handler was aware of this when he was treating Ms. Shaw, as he acknowledged reading the documents generated by the other staff.

[148] As a result, I find that Dr. Handler knew that Ms. Shaw had had gastric bypass surgery, that he knew about the risks associated with that surgery and that he knew that Ms. Shaw had presented with abdominal pain that was radiating into her back.

Referral by Dr. Handler

[149] Second, Mr. Thompson did not recall who had suggested to Ms. Shaw that she should see her bariatric surgeon. Mr. Thompson also suggested that Dr. Handler had told them that the hospital couldn’t do anything for them and that they needed to see her bariatric surgeon.

[150] Dr. Handler testified that he was the one who had suggested that Ms. Shaw seek a referral on an expedited basis to her bariatric surgeon. He did not recall anything about saying to Mr. Thompson that the hospital could not help Ms. Shaw. Although the nursing notes suggest that Ms. Shaw was sent to see her GP, I accept Dr. Handler’s evidence on this point for two reasons. First, the medical documents indicate that Ms. Shaw followed up and scheduled this appointment. Second, Mr. Thompson did agree that it was someone at the hospital who had made this suggestion, and it is unlikely that it would have been made by anyone other than Dr. Handler.

[151] Plaintiffs’ counsel also spent some time cross-examining Dr. Handler on the issue of whether the referral he was suggesting was an “expedited” referral or an “urgent’ referral. Regardless of which word is used, however, the understanding that I have is that at the end of the visit to the emergency room, Dr. Handler was of the view that Ms. Shaw needed to see her bariatric surgeon as soon as possible. In other words, there was some immediacy to this case, even on the Defendant’s evidence.

Ms. Shaw’s Level of Pain

[152] Finally, a key issue in this case is the level of pain that Ms. Shaw was experiencing when she was discharged from the emergency department. At paragraph 42 of their written argument, counsel for the Defendant states that “there is substantial evidence at trial that Ms. Shaw’s pain improved prior to discharge.” I disagree.

[153] While there is evidence that Ms. Shaw’s pain was managed during her stay in the hospital and was lower at least during the time that she was asleep during her stay, the only evidence that her pain had lessened at the time of discharge came from Dr. Handler’s viva voce testimony and his notes. The notes can be described as cryptic at best. I found it difficult to take anything specific from those notes because they were not in order, difficult to read and had no times noted on them, other than the time of discharge and the time of the consult with the radiologist.

[154] It is worth reproducing the passage from his notes that Dr. Handler references:

[155] This note has been magnified and is larger than it appears in the actual document. It is possible that this note says 7:15 decrease in symptoms, but it is also possible, given the disordered nature of these notes, that the 7:15 is simply the time of discharge and the cryptic symbol that appears to be a down arrow is related to something else.

[156] Mr. Thompson, on the other hand, testified that Ms. Shaw’s pain had been consistently 10/10 throughout her hospital stay. This evidence is not completely accurate because it does not accord with the nursing notes that indicated that Ms. Shaw was asleep for at least part of the time that Ms. Shaw was in the hospital. I should also note that all of the medical witnesses testified that the pain scales were subjective.

[157] In my view, on this point, it is difficult to reach a definitive conclusion from the testimony of either Dr. Handler or Mr. Thompson alone. In order to resolve this question, I turn to the nursing notes, particularly at the end of Ms. Shaw’s stay. In the note at 5:20 a.m., Ms. Shaw had pain at the scale of 10/10. The note at 5:36 a.m. says that Ms. Shaw is continuing to seek pain medications. The note at 6:40 a.m. says that Ms. Shaw’s condition has not changed. From these notes, I infer that Ms. Shaw’s pain was consistently at a 10/10 throughout the time period from when Ms. Shaw woke up to 6:40 a.m.

[158] Dr. Handler’s counsel points out the fact that the nurse’s discharge note does not make any mention of pain. As a result, counsel asks me to infer that Ms. Shaw was in significantly less pain when she was discharged. There are two problems with drawing this inference. First, I would have to conclude that Ms. Shaw’s condition had changed considerably in less than a half an hour when it had been relatively consistent all night. Second, I would have to conclude that the nurse had decided not to make a note of the change in Ms. Shaw’s condition.

[159] Instead, I conclude that at the time of discharge, Ms. Shaw was still experiencing significant pain that had not improved in any meaningful way since she was admitted. While she was in hospital, the various medications that she received had managed that pain for short periods of time. However, they had not relieved the underlying pain or addressed the source of the pain. As a result, Dr. Handler should have been alive to the possibility of an ongoing and unresolved problem.

[160] I should also address three observations that counsel for Dr. Handler made about Ms. Shaw’s pain presentation both in the hospital and when she was discharged:

a) Ms. Shaw was able to undergo the CT scan. As a result, as Dr. Holliday testified, her pain would have been reduced at that point in her hospital stay. I accept this evidence. However, it only means that Ms. Shaw’s pain was reduced for a short period of time. It does not mean that it is being managed, or that it was better at the time of discharge.

b) Ms. Shaw was able to sleep for a period of time in the hospital. Again, I accept this evidence and the fact that it meant that there was a short period where Ms. Shaw had pain relief. However, as with point (a), it does not mean that Ms. Shaw’s pain was being managed at the time of discharge. In addition, for both these points, it needs to be remembered that Ms. Shaw was given significant doses of a number of pain medications, including morphine.

c) On November 18^th, 2015, when Ms. Shaw was taken by ambulance to the hospital, she reported that her pain level had gone up since the previous day and was now 10/10 on a pain scale. In my view, this report cannot be taken as showing that Ms. Shaw’s condition had gotten better between the time of her admission to the hospital and the time of her discharge. All it shows is that, at 9 a.m. on November 18^th, her condition had worsened from the day before. She is noted as being “tachy”, which I understood to mean that she had an elevated heart rate. This was not present the previous day, suggesting that her condition had worsened.

[161] Dr. Handler was firm in his position that Ms. Shaw’s pain had gone down at the time of discharge. I reject that evidence. While that may be Dr. Handler’s memory of the situation, it does not fit with the rest of the evidence I have. In that respect, I note:

a) The nursing notes do not reflect any change in Ms. Shaw’s pain symptoms.

b) Mr. Thompson’s evidence suggests that Ms. Shaw’s pain had not changed.

c) Ms. Shaw required a wheelchair to leave the emergency room, just as she had required one on arrival.

d) Ms. Shaw had received significant pain medications, both opioid and non-opioid based. None had seemed to have any significant impact on her condition and the last one (other than potassium) had been administered more than two hours prior to discharge.

e) More generally, I have concerns about the reliability of Dr. Handler’s testimony as set out at paragraph 51 above, and paragraphs 162 and following, below.

[162] After Ms. Shaw left the emergency room, Dr. Fitzgerald called Dr. Handler to advise him of what she had seen on the CT scan. I would note two points about this testimony. First, to the extent that Dr. Fitzgerald’s evidence differs from Dr. Handler’s evidence, I accept the testimony provided by Dr. Fitzgerald for the following reasons:

a) Dr. Handler only had a vague, general recollection of this conversation, while Dr. Fitzgerald’s recollection of the conversation was specific.

b) Dr. Fitzgerald had her e-mail exchange with Dr. Singer-Jordan and her report of her reading of the CT scan to assist her memory, and her evidence accorded with both documents.

[163] Second, I am of the view that this follow-up conversation with Dr. Handler was an unusual event. Dr. Fitzgerald was not calling just because she wasn’t sure that Dr. Singer-Jordan had reported the results of the CT scan to Dr. Handler. She was calling because there were concerning findings on the CT scan.

[164] Given that conclusion, I also reject Dr. Handler’s evidence that the conversation with Dr. Fitzgerald was reassuring. I will return to this issue below. Instead, Dr. Fitzgerald reported another one of the concerns set out in the passage from the Annals of Emergency Medicine reproduced at paragraph 146 above.

[165] Dr. Fitzgerald’s reading of the scan describes the findings as follows:

IMPRESSION: There is a twisting of mesenteric vessels which can be associated with a mesenteric postoperative hernias. However there are no further supportive findings. Finding was present previously in association with bowel distention and appears to have resolved spontaneously. Recommend continued clinical surveillance. There is a new left ovarian cyst. There are mildly prominent mesenteric lymph nodes. These also appear new.

[166] At this point, Dr. Handler now had a patient who had significant abdominal pain, radiating to her back, that had not been meaningfully reduced by pain medications. He also had a CT scan that he knew showed the possibility of a hernia.

[167] In his testimony, Dr. Handler made the point that Dr. Fitzgerald did not recommend calling Ms. Shaw back to the emergency room. The problem with this argument is that Dr. Fitzgerald only had the CT scan. She did not have the advantage of knowing how Ms. Shaw had presented in the emergency room. In my view, deciding whether to ask Ms. Shaw to return to the emergency room was a decision that could only be made by Dr. Handler.

[168] With this factual background in mind, I now turn to the opinions on the standard of care.

c) The Opinions on the Standard of Care

[169] I start with the proposition that expert evidence is generally required in medical malpractice actions to prove negligence. While there may be limited exceptions (see, for example, Anderson v. Chasney, 1949 236 (MB CA), [1949] 4 D.L.R. 71 (M.B.C.A.), aff’d [1950] S.C.R. viii), the general rule is that expert evidence is needed because of the specialized knowledge of the medical profession: Bafaro, at para. 31.

[170] In a case such as this on, the question of whether to refer a patient to a surgeon, when to make that referral and how to make it requires expert evidence. I had that evidence in this case from both sides. There were differences in the evidence, and it is up to me to both determine what expert I prefer and what to make of their conclusions. I will now set out the opinions of each expert. I will address any underlying factual issues in my analysis section.

[171] The Plaintiffs called Dr. Alan Drummond to testify as to the standard of care. In his evidence, Dr. Drummond reviewed the events of November 16^th and 17^th, 2015. He expressed the view that, for most of the time that Ms. Shaw was under Dr. Handler’s care, Dr. Handler met the standard of care. In Dr. Drummond’s view, Dr. Handler understood the risks that might exist as a result of Ms. Shaw’s bariatric surgery and had ordered appropriate tests throughout her stay in the hospital.

[172] However, Dr. Drummond’s opinion was that Dr. Handler had fallen below the standard of care in two respects. First, Dr. Drummond testified that Dr. Handler had not gotten Ms. Shaw’s pain under control and, as a result, should not have discharged her. Second, Dr. Drummond testified that Dr. Handler had failed to act on the contents of the telephone call that he received from Dr. Fitzgerald about the CT scan.

[173] The Defendant called Dr. Amit Shah to testify as to the standard of care. He also reviewed the events of the night of November 16^th to 17^th, 2015 and provided evidence about what was transpiring at each step of the way. Dr. Shah did not disagree with Dr. Drummond’s opinion that, for the most part, Dr. Handler had met the standard of care in his treatment of Ms. Shaw.

[174] Where Dr. Shah disagreed with Dr. Drummond was on the decision to discharge Ms. Shaw form the emergency room and whether there should have been post-discharge follow-up. Dr. Shah testified that it was not unusual for emergency room physicians to discharge patients home for observation. It was Dr. Shah’s opinion that all of the necessary tests had been performed by Dr. Handler and that continued observation in hospital was not necessary as Ms. Shaw’s symptoms had decreased by the time of discharge.

[175] Dr. Shah also testified that the standard of care did not require a surgical consult in this particular case. Dr. Shah testified that there was nothing indicating an acute problem in Ms. Shaw’s case. Therefore, Dr. Handler’s decision to direct Ms. Shaw to see her bariatric surgeon promptly was a reasonable direction. Based on this conclusion, Dr. Shah was also of the opinion that requiring Ms. Shaw to return to the emergency room was not necessary, as she had been referred to her bariatric surgeon for follow-up.

d) The Analysis

[176] Each opinion is based on different assumptions. A key one is whether Ms. Shaw’s pain had improved at the time that she was discharged by Dr. Handler. I have found, as a fact, that it had not improved at that point. Therefore, this factual finding is the starting point for my analysis of both opinions.

[177] Dr. Shah testified that doctors regularly send patients who are in pain home, even if there is no diagnosis. Dr. Shah also testified that doctors should not rush a diagnosis if one cannot be determined as that might make it more difficult to have the patient return to the hospital or see a doctor if treatment was necessary. I accept those statements as evidence of how, in general terms, an emergency room doctor would perform their work.

[178] However, I must also consider the specific facts of this case. I accept Dr. Drummond’s observation that patients with undifferentiated abdominal pain are not usually sent home if they have a history of bariatric surgery, especially when they have a CT scan that suggests that there might be a hernia.

[179] There is an interesting question in this case about whether Dr. Handler met the standard of care at the point when he discharged Ms. Shaw. At that point, it must be remembered that Dr. Handler reasonably believed that the CT scan was normal. Given the fact that the pain had not been managed in any meaningful way during Ms. Shaw’s stay in the hospital, the failure to keep her in hospital might very well be a matter of judgment as described in the case law instead of being a breach of the standard of care.

[180] However, it is not the only problem with Dr. Handler’s care of Ms. Shaw. The conversation with Dr. Fitzgerald is troubling to me in two respects. First, Dr. Fitzgerald testified that she was telephoning Dr. Handler for two reasons; to make sure he had received the results of the CT scan, and to make sure that he knew that there was twisting of the mesentery on the CT scan that might support a diagnosis of an internal hernia. At this point, we have both unmanaged abdominal pain that was radiating into the back and a CT scan that might suggest there was a “mesenteric post-operative hernia”.

[181] I would have expected Dr. Handler to have acted upon this telephone call. Instead, Dr. Handler testified that he remembered “her [Dr. Fitzgerald] telling me or giving me the impression that there was nothing acute on the CT scan.” He went on to say, “I feel like she’s communicating to me that the likelihood of a hernia is low.”

[182] I must contrast this evidence with the passage from the Annals of Emergency Medicine that I reproduced at paragraph 146above. That report suggests that twenty percent of cases of an obstructed bowel will have no CT findings. The fact that there are findings on Ms. Shaw’s CT does not mean that there is a low likelihood of a hernia. It means, especially given the pain presentation, that there is a real likelihood of a hernia.

[183] I conclude that Dr. Handler ought to have called Ms. Shaw back to the hospital and referred her to one of the surgeons on duty for an emergency consultation. Dr. Handler’s failure to do this was not a mere matter of judgment. Dr. Handler was mistaken in his view that Ms. Shaw’s symptoms had improved, and he had either missed or ignored the fact that Ms. Shaw’s pain was radiating into her back. Dr. Handler compounded these errors by brushing off the telephone call that he received from Dr. Fitzgerald outlining that Ms. Shaw had another one of the symptoms indicative of a hernia.

[184] In the course of his evidence, Dr. Shah asked the question, what would Dr. Handler have said to the surgeon if he had asked for a consultation. I was under the impression that this was a rhetorical question asked because Dr. Shah saw no basis for a surgical referral. However, in my view, it is a question that actually has two answers.

[185] First, there is the literature that exists on the risks associated with a gastric bypass. That literature suggests two things. First, that complications from bariatric surgery could appear months, or even years, after the surgery. Those complications can include a bowel hernia, which can be the precursor to an ischemic bowel. Second, it suggests that the symptoms of a bowel hernia, or an ischemic bowel, can include abdominal pain that is not supported by the objective findings. The article from the Annals of Emergency Medicine makes both those points, and none of the doctors involved in this case disagreed with those propositions.

[186] I have also concluded that the potential long-term complications from gastric bypass surgery were well-known by emergency room doctors in Ontario. I reach that conclusion for the following reasons:

a) As discussed at paragraph 147 above, Dr. Handler acknowledged in cross-examination that he was aware of these concerns.

b) The article from the Annals of Emergency Medicine was written in 2006, almost a decade before these events. That suggests that this issue was known for a long time.

c) Prior to the incident in this case, the issue was described in other literature, including the leading textbooks on emergency medicine.

d) The Canadian Medical Protective Association (the liability insurer for doctors) had provided physicians with a bulletin in 2012 that advised members of this specific problem.

[187] To the extent that Dr. Shah’s testimony suggested that emergency room doctors might not have been aware of the complications flowing from bariatric surgery, I reject that evidence. To the extent that Dr. Jackson’s testimony also suggests a lack of knowledge, I will address it in the section on causation.

[188] Second that the risks associated with bariatric surgery were presenting themselves with this patient. Dr. Drummond produced the article from the Annals of Emergency Medicine cited above. Dr. Shah accepted the following passage as correct, “Any patient with unexplained abdominal pain regardless of laboratory or radiological findings should be considered for surgical exploration.”

[189] Dr. Handler also testified that he had referred Ms. Shaw to her bariatric surgeon on an expedited basis. He made this determination before he knew about the existence of the CT findings. Ms. Shaw’s case was obviously serious enough, even with a negative CT scan, to justify a surgical consult on an expedited basis. The findings on the CT scan would have magnified that concern.

[190] For the foregoing reasons, I conclude that Dr. Handler was negligent and fell below the standard of care in his treatment of Ms. Shaw. I now turn to the issue of causation.

Issue #2- Causation

[191] In order to establish causation, the “but for” test must generally be met. That test was set out by the Supreme Court of Canada in Clements v. Clements 2012 SCC 32, [2012] 2 S.C.R. 181 (at para. 8):

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original.]

[192] There are occasions where a modified test of “material contribution” can be used to determine causation. In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, the Court set out the circumstances in which the material contribution test can be used:

[24] However, in special circumstances, the law has recognized exceptions to the basic “but for” test and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements.

[25] First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

[193] I conclude that the “but for” test applies in this case. The key issue that must be decided is whether a request to Ms. Thompson to return to the hospital urgently to see a surgeon on November 17^th, 2015 would have changed the outcome in this case.

[194] Causation often requires the trier of fact to ask a series of questions. During the course of argument, I put the questions that had been considered by Tzimas J. in Hasan v. Trillium Health Centre, 2022 ONSC 3988 to the parties and asked whether similar questions needed to be asked in this case.

[195] Essentially, the parties agreed on the questions that I needed to ask in conducting my causation analysis. Those questions are as follows:

a) What was the cause of Ms. Shaw’s death?

b) What would have occurred if Dr. Handler had acted in accordance with the standard of care?

c) Based on what would have occurred, is it more likely than not that Ms. Shaw would not have died?

[196] I will now address each question.

a) The Cause of Ms. Shaw’s Death

[197] The final physician discharge summary states that “the most responsible diagnosis” is an ischemic small bowel resection. Based on the history of this case, I find that Ms. Shaw died because she had significant necrotic bowel that flowed from hernias in her intestines. She died after developing complications subsequent to the removal of the necrotic bowel.

[198] During the examination in chief of Dr. Jackson, Defendant’s counsel pointed out the fact that there had been some improvement in Ms. Shaw’s condition between November 18^th, 2015 and November 22^nd, 2015. That may have been the case. However, the trajectory of Ms. Shaw’s case and the reasons for her demise were clearly related back to the original bowel hernia and ischemia. In other words, even if there had been some improvement, the trajectory of the case was not going to change.

[199] Therefore, this is a case where the cause of death is clear, and relatively undisputed. The more significant question is whether Ms. Shaw had developed the internal hernia before she was discharged from the hospital on November 17^th, 2015, and whether addressing that hernia on November 17^th, 2015 would have led to a different outcome. Addressing that issue is more appropriately done under the second part of the test, and I now turn to that question.

b) What Would Have Occurred if Dr. Handler had Acted in Accordance with the Standard of Care?

[200] Resolving this question requires me to weigh and analyze the evidence of the two causation experts called by the parties. I will start by setting out their opinions and then set out my conclusions and the reasons for them.

The Opinions of Dr. Holliday and Dr. Jackson

[201] In his evidence, Dr. Holliday reviewed Ms. Shaw’s clinical course from the time that she presented to the emergency room on the night of November 16^th, 2015 through to her passing on November 25^th, 2015. Dr. Holliday was of the opinion that, had Ms. Shaw not been discharged on November 17^th, 2015 and had a surgeon been consulted, that surgeon would have ordered a laparoscopic exploration of Ms. Shaw to take place several hours after the consultation had taken place. Dr. Holliday was also of the opinion that this earlier laparoscopic surgery would have found the hernias in Ms. Shaw’s intestines and would have repaired them, likely with minimal permanent problems for Ms. Shaw.

[202] Dr. Jackson, on the other hand, took a different view of the case. In essence, his opinion was that a general surgeon, if consulted on the morning of November 17^th, 2015, would have supported Dr. Handler’s plan to discharge Ms. Shaw and have her follow up with a referral to her bariatric surgeon. Dr. Jackson’s opinion was that, even with the additional information about the CT scan contained in the telephone call from Dr. Fitzgerald, he would have supported the same plan of care. Dr. Jackson believed that it was important for the bariatric surgeon to perform the diagnostic laparoscopy because the abdomen, in the case of a gastric bypass, can appear quite confusing to a general surgeon.

[203] In their evidence, both doctors commented on whether a surgical consultation should have been requested. I have not considered that evidence in assessing the merits of each opinion. It is evidence that may be relevant in assessing their credibility and reliability. As I have indicated at paragraph 95, I am of the view that the dividing line between the standard of care and causation is a line between whether the consultation should have been requested (standard of care) and what would have happened if it had been requested (causation).

[204] One of the areas of difference between the two opinions was over the question of whether a surgical exploration would have taken place at an earlier hour. Counsel for the Plaintiffs sought to elicit an opinion from Dr. Holliday about when an earlier surgery should have taken place. Counsel for the Defendant objected to this evidence, as Dr. Holliday’s opinion had only said that there would have been “earlier” surgical intervention. I permitted the question and advised the parties I would consider the objection as part of my decision. If I granted the objection, then I would not consider the specific evidence of Dr. Holliday on this point.

[205] I am overruling the Defendant’s objection on this point for three reasons. First, it must be remembered that we are dealing with an approximately twenty-four (24) hour period here. There isn’t a lot of room for a difference of opinion as to time, and Dr. Holliday’s written opinion clearly stated that the referral should have been made earlier. A second, related, point is the fact that the Defendant (and counsel) have known throughout the case that the Plaintiff’s theory was that Dr. Handler should have made a surgical referral on the morning of November 17^th, 2015 rather than discharging Ms. Shaw. It should come as no surprise that the other half of the Plaintiff’s position would be that the surgeon would have ordered an urgent referral for a laparoscopic investigation. In making this ruling, I was required to re-read Dr. Holliday’s opinion, and I am of the view that this conclusion can be easily implied from his written opinion. Finally, there was no prejudice to the Defendant as their experts heard Dr. Holliday’s evidence and had the opportunity to respond to it.

[206] The other objection that Defendant’s counsel made that should be mentioned is the objection to Plaintiff’s counsel’s question as to what would have happened if a surgical consultation had taken place on the morning of November 17^th, 2015. Again, in my view, this opinion is admissible. It is covered, in general terms, by Dr. Holliday’s report and the other points I made in the previous paragraph also apply to this question. I would add only one further observation, which is that I accept the submission of Plaintiff’s counsel that the purpose of the pre-trial expert opinion is not to provide a transcript of what will be said at trial. While the Court has a gatekeeper function, and fairness to both parties has to be maintained, the Court should not be scrutinizing every line of evidence to make sure that it is completely and precisely reflected in the opinion. If that were the case, we would simply have experts deliver their examinations in chief by Affidavit.

[207] Having illustrated the contrasting opinions and addressed the admissibility concerns, I now turn to my analysis of causation.

Analysis and Conclusions

[208] I have previously found that, when Dr. Handler received the report on the CT scan from Dr. Fitzgerald after Ms. Shaw was discharged, it was incumbent upon him to contact Ms. Shaw and have her return to the Emergency Department. It was also incumbent upon him to refer Ms. Shaw’s case to an on-call surgeon for an immediate consult.

[209] Had that happened, it is almost certain that an emergency room surgeon would have reviewed Ms. Shaw’s chart. In terms of what that surgeon found, it is instructive to consider what Dr. Belay, the surgeon who performed the urgent laparotomy actually saw when he read the CT scan the next day. Dr. Belay’s report says:

A CT scan of the abdomen and pelvis was reported on yesterday, November 17th. I reviewed the imaging myself. There is quite a fair bit of small bowel loops in the left upper quadrant with swelling of the small bowel mesentery suggestive of an internal hernia. I do not see any evidence of free air. A small amount of free fluid in the pelvis.

[210] However, the surgeon who consulted Dr. Handler on the morning of November 17^th, 2015 would have had less information to work with than Dr. Belay had. Ms. Shaw’s heart rate had not elevated, and her lactic acid levels were not elevated either. A higher lactic acid level can mean that not enough blood is flowing to vital body parts. In spite of these differences, however, I am of the view that a surgical consultation on the morning of November 17^th, 2015 would have resulted in the surgeon ordering a laparoscopic exploration of Ms. Shaw’s abdomen.

[211] In determining what a surgeon who was consulted would have done, what was seen on the CT scan was not the only factor that would have informed the surgeon. One of the articles referenced by Dr. Jackson, the Defendant’s expert, was a paper entitled Internal Hernia After Laparoscopic Antecolic Roux-En-Y Gastric Bypass, Al Mansour et. al. 2015 OBES. SURG. (2015) 25:2106-2111. In that paper, at page 2110, the following observations are made:

Clinical assessment of these patients with low threshold for abdominal exploration is key to prevent delay in diagnosis and surgical management, which may result in substantial morbidity and mortality risk.

Surgeons who are taking care of RYGB patients should also be familiar with the cross-sectional imaging of these patients and have a low threshold to proceed with operative exploration.

[212] The reasons why there is a low threshold for these types of surgeries is disclosed in some of the medical literature that Dr. Holliday provided to the Court. As noted in Dr. Holliday’s evidence, there were some studies in which up to eight percent of people who had had a gastric bypass subsequently developed herniated bowels.

[213] Dr. Jackson agreed with the proposition that, based on the literature, the threshold for surgical exploration in these types of cases was low. However, Dr. Jackson went on to testify that the risks of bowel ischemia associated with Roux-en-Y surgery was not well known in Ontario at the time. Even after Dr. Jackson was confronted with literature from 2006 outlining the problem, he still testified that “as a general surgeon in 2015, that was not all that well understood, not only among emerg docs [sic] but also general surgeons.”

[214] I reject that evidence. I have set out at paragraph 186 why I accept that the risks associated with bariatric surgery were well-known in November of 2015. I should also note that this evidence raised issues in respect of the reliability of Dr. Jackson’s evidence more generally. Being at odds with the evidence of everyone else who testified on this point raises questions as to whether Dr. Jackson is truly familiar with the factual landscape in this area and whether I can rely on that evidence on other crucial points, such as the timing of events. I have, therefore, approached Dr. Jackson’s evidence cautiously. In terms of Dr. Holliday’s opinion, I also note that his answers on some of the hypotheticals had inconsistencies. I have also taken those inconsistencies into account by reaching my conclusion after a full consideration of all of the evidence on causation.

[215] This brings me to Dr. Jackson’s evidence that the appropriate course of action in this case was to refer Ms. Shaw to her bariatric surgeon. Dr. Jackson’s opinion was based, at least in part, on his view that the laparoscopic surgeries were more appropriately performed by qualified bariatric surgeons. This opinion may be trenching on the issue of the standard of care. However, it consumed a significant portion of Dr. Jackson’s evidence, and I will therefore address it on the merits.

[216] In an ideal world, Dr. Jackson might very well be right that this surgery was best performed by a surgeon with a subspecialty. In this case, however, there were concerning findings. The CT scan as well as the fact that Ms. Shaw had not had any significant relief from her pain meant that there could very well have been an evolving and urgent situation in Ms. Shaw’s abdominal area. The threshold for a laparoscopic investigation was, as I have pointed out, quite low.

[217] In addition, during cross-examination, Dr. Jackson accepted the proposition that the presence of mesenteric swirling on the CT scan of a patient who had had gastric surgery meant that there was a reasonable probability that an internal hernia would be present and that this would be the first thing that he thought of with that patient. That is another fact that suggests that a surgeon, if consulted on the morning of November 17^th, 2015, would have ordered a laparoscopy.

[218] There is no doubt that Ms. Shaw’s condition was significantly worse by the morning of November 18^th, 2015. Indeed, Dr. Jackson testified that the very tightly wound hernias that were found after the November 18^th, 2015 surgery were very significant and would have been seen on the imaging.

[219] However, Dr. Holliday testified that the development of the hernias is a progressive process. Dr. Jackson testified that there can be asymptomatic cases and that there is no guarantee that they are going to progress. I accept all of this evidence. However, from this evidence, I also infer that the hernia and the obstruction to the blood flow can develop over time.

[220] As I understand it, the Roux-en-Y surgery results in the small intestine having more space to move about the abdomen, especially as the person who had the surgery loses weight. It is possible for the colon to end up having some twisting, and for this twisting to subsequently develop into a more dangerous condition.

[221] From this, it can also be seen that I have rejected the view that Ms. Shaw had two separate events over the course of this thirty-six hour period. In my view, the pain that was being experienced by Ms. Shaw on November 16^th to 17^th,2015 was caused by the same events as what brought her to the hospital for the second time the next day. In other words, the herniating of her bowels had begun on November 16^th to 17^th, continued, and got worse the next day.

[222] Dr. Jackson testified that the twisting observed on November 18^th, 2015 would have happened relatively quickly, in a period of six to twelve hours. However, Ms. Shaw was suffering from significant pain on the 17^th of November, her CT scan was already showing signs of twisting and impingement, and the condition can be a progressive one.

[223] As a result, I conclude that a surgical consultation on November 17^th, 2015 would have led to a laparoscopic investigation that day. The result of that laparoscopic investigation would have been that the surgeons would have discovered, and repaired, the hernias that Ms. Shaw was suffering from.

c) Based on What Should Have Occurred, Would Ms. Shaw Have Died?

[224] No. In fact, Ms. Shaw would have been left with very little, if any, impairment from this incident at all.

[225] My reasons for reaching this conclusion are founded in the fact that, if the laparoscopic surgery had taken place on November 17^th, 2015 instead of November 18^th, 2015, the hernias would have been undone at a point when there was no necrosis in the bowels and the bowels would have still been healthy enough that necrosis would not have developed. Ms. Shaw’s condition would have been reversed by timely intervention and there would have been no need to resect any portion of her bowels.

[226] As a result, I am of the view that, but for Dr. Handler’s negligence in not following up with Ms. Shaw, Ms. Shaw would not have died. Dr. Handler’ negligence caused Ms. Shaw’s death and, therefore, he is liable for the damages that flow from that negligence.

Issue #3- Damages

[227] The Plaintiffs have claimed the following damages from the Defendant:

a) Damages for Ms. Shaw’s pain and suffering. This claim is made on behalf of her estate.

b) FLA damages claims for loss of care, companionship, and guidance for Mr. Thompson and each of the children.

c) Pre-judgment interest on the FLA claims at 5%.

d) The funeral expenses for Ms. Shaw.

e) Dependency losses, which divide into two categories: claims for dependency income loss and claims for loss of household services.

[228] With respect to the dependency losses, the parties were unable to agree on the calculation of damages in this matter. As a result, they each called an expert on damages. Both experts were qualified to give expert evidence as set out at paragraph 69 above.

[229] Each expert provided two different reports. The reports were based on different assumptions but, as will be seen, the experts agree on the methodology that should be used to calculate the losses in this case. As a result, I do not intend to review the reports separately. Instead, I will review the inputs that each expert has relied upon in reaching their damages calculations.

[230] I would also note that the evidence of the experts only bears on the dependency losses.

a) Damages for Pain and Suffering

[231] The Estate of Elisha Shaw claims damages for pain and suffering in the sum of $75,000. This claim is based largely on the decision in Adair Estate v. Hamilton Health Sciences Corp. (2005), 2005 18846 (ON SC), 32 C.C.L.T. (3d) 283 (Ont.S.C.). In that case, the Court noted that the Plaintiff lived for three weeks past her original surgery and that her pain would have been “unabated and utterly frightening.” In that case, the Court fixed damages to the estate in the sum of $50,000. Accounting for inflation, that amount would be approximately $72,000 in today’s dollars.

[232] Counsel for the defendant argues that, for an individual who is rendered unconscious in the course of their injury, they cannot be aware of any pain and suffering while they are unconscious. This is especially true in a case where unconsciousness happens quickly. See: Pilgrim et. al. v. Weston Bakeries et al., 1970 277 (ON CA), [1970] 3 O.R. 256 (C.A.).

[233] In my view, the decision in Adair is a good starting point for the analysis of what damages should be awarded for pain and suffering. However, the amount should be reduced to take into account both the fact that the period in which Ms. Shaw was alive after the negligent act was shorter than it was in Adair, and the fact that Ms. Shaw was unconscious for much of that time period.

[234] Taking all of those factors into account, I award the Estate of Ms. Shaw the amount of $40,000 on account of pain and suffering.

b) FLA Claims

[235] Section 61(2)(e) of the Family Law Act, R.S.O. 1990 c. F.3 provides that a family member may recover damages for loss of care, guidance and companionship as a result of injury or death suffered as a result of negligence. Damages available under this section do not include damages for grief, sorrow or anguish. See: Mason v. Peters et. al. (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27 (C.A.), leave to appeal refused, [1982] S.C.C.A. No. 51.

[236] The manner in which these damages are calculated was explained in Estate of Mary Fleury et. al. v. Olayiwola A. Kassim, 2022 ONSC 2464, 82 C.C.L.T. (4th) 211 at para. 278:

Each case depends on a full assessment of the evidence, on a case-by-case basis. Various factors to be considered include the circumstances of the death, the age of the deceased, the age of dependent, the nature and quality of the relationship between the deceased and the dependent, the dependent’s personality and ability to manage the emotional consequences of the death, and the effect of the death on the dependent’s life. Wilcox v. “Miss Megan” (The), 2007 CarswellNat3324 (FC) at para. 90.

[237] The case law acknowledges that, unlike general damages, there is no “cap” on the amount of damages that can be awarded for a loss of care, guidance and companionship. Each case must be assessed on its own merits. However, in To v. Toronto (City) Board of Education (2001), 2001 11304 (ON CA), 55 O.R. (3d) 641 (C.A.), the Court of Appeal found that an award of $100,000.00 in 2001 dollars was at the high end of what has appropriate for these types of damages. This “high end” would be adjusted for inflation and, in today’s dollars would be between $160,000 and $170,000.

[238] The case law has recognized a tension between the “high end” of the range for these awards for damages as described in To, and the fact that appellate Courts are generally deferential to damages awards given by juries. This tension has been explored by the Court of Appeal in both Fiddler v. Chiavetti, 2010 ONCA 210, 260 O.A.C. 363 and Moore v. 7595611 Canada Corp., 2021 ONCA 459, 464 D.L.R. (4th) 475.

[239] In Moore, Fairburn A.C.J. summed up this tension, and the law more generally, as follows:

[28] Second, despite the damages awards given in both To and Fiddler, both courts were careful to reinforce the idea that, like the absence of a legislative cap for damages of this nature, there is no judge-made cap for this form of non-pecuniary damages: To, at para. 29; Fiddler, at para. 76. While one can look to other guidance, care, and companionship assessments in similar cases to test the reasonableness of a jury’s determination of damages in any given case, these types of comparative exercises are not determinative of the outcome: To, at para. 31. To the contrary, “Each case must be considered in light of the evidence material to the guidance, care and companionship claims in that case”: To, at para. 31. This includes, as LaForme J.A. set out in Fiddler, at para. 77, considering each case “in light of the particular family relationships involved in that case”.

[29] This case-by-case approach to the quantification of damages for loss of guidance, care, and companionship will necessarily result in damages awards that will fluctuate. Coming back to the standard of review on appeal, it is only where the quantum of damages set by the jury “shocks the conscience of the court” or is “so inordinately high” that it is “wholly erroneous” that appellate intervention will be appropriate: Young, at para. 66, citing Hill, at para. 163; To, at para. 31.

[30] Therefore, while there is no question that the jury award for loss of care, guidance, and companionship in this case is high, in light of the factual backdrop of this case, it does not constitute an amount that “shocks the conscience of the court”: Young, at para. 66, citing Hill, at para. 163. Nor does it represent an amount that is “so inordinately high” that it is “wholly erroneous” in nature: To, at para. 31.

[240] In Moore, the Court upheld an award of $250,000.00 that had been awarded by a jury. Counsel for the Plaintiffs also pointed to the decision in Zarei v. Iran, 2021 134795, 162 O.R. (3d) 139 as an example of a case decided by a judge alone where an award of $200,000 for loss of care, guidance and companionship was made. However, the Court in Zarzei acknowledged (at paragraph 28) that there should have been a jury hearing the case and the only reason the jury was not present was because the Defendant (the Republic of Iran) had not participated in the case in any way.

[241] In my view, there will be more flexibility in awards for loss of care, guidance and companionship where a jury hears the matter than where it is heard as a judge alone trial. Therefore, for the purposes of this case, I conclude that (absent some particularly significant factor) the damages should probably not exceed $165,000 per person.

[242] With that range in mind, I now turn to deal with the appropriate awards for damages in this case. I start with the award for Mr. Thompson. The Defendant argues that “little evidence was led from Mr. Thompson” to support his claim for loss of care, guidance and companionship. I disagree.

[243] Counsel for the Defendant points to the case of Tahir v. Mitoff, 2019 ONSC 7298 for the proposition that “evidence of the specific emotional dynamics of the relationship have been held to be relevant in an assessment of general damages for the loss of a spouse.” While I accept that proposition, the facts in Tahir require consideration. In Tahir, the wife and husband had listed themselves as separated before the wife died, the husband had assaulted the wife on a previous occasion, and there was no evidence of any strong connection between the deceased and her husband.

[244] In this case, the evidence is different. The Defendant correctly points out Mr. Thompson’s evidence that, when asked how his wife’s passing affected him, he confirmed he had to work more. However, there is other evidence from which it is easy to infer that Mr. Thompson was deeply affected by Ms. Shaw’s passing. For example, he testified about the day before Ms. Shaw died (when it was fairly clear that she was going to die), saying, “I don’t think I could, I could sit there and know that she’s not going to be with me again.” Both this evidence, and the manner in which it was delivered, support the conclusion that Ms. Shaw’s passing deeply affected Mr. Thompson. It was, however, very difficult for Mr. Thompson to articulate his loss. He also observed that, since Ms. Shaw’s passing his life has been a “mess.”

[245] The decision in Tahir is also instructive for the amount awarded in damages. In that case, the Court assessed Mr. Tahir’s FLA claim at $50,000. This was in spite of the domestic violence and the fact that the parties had listed themselves as having been separated. On the facts of this case, I am of the view that the amount awarded must be more.

[246] It is also worth briefly considering Fish v. Shainhouse, [2005] O.J. No. 4575 (S.C.). In that case, the damages were assessed but not awarded as the Court did not find negligence. In Fish, the husband and wife had been married approximately twenty-five years when the husband died from a heart condition. The wife described her husband as “funny, romantic and unselfish” (para .166) and it was accepted that they would have had a close relationship but for his passing. Damages were assessed at $80,000, which would have been approximately $115,000 in today’s dollars.

[247] In my view, the award in this case should clearly be higher than it was in Tahir but should be modestly lower than the award in Fish. Based on the foregoing, I am persuaded that an award of $100,000 for loss of care, guidance and companionship for Mr. Thompson is appropriate. He lost his partner of more than ten years, it was a happy and supportive marriage, and it was clear from his testimony that Mr. Thompson relied on Ms. Shaw as a central, positive part of his life.

[248] The Defendant argues that we do not have a lot of evidence about how the children have been affected by the loss of Ms. Shaw and, as a result, the FLA claims should be moderated. There are three problems with that argument. First, as I pointed out to counsel in argument, the decision in Fish included damages for one of Mr. Fish’s estranged adult sons, Brian. At the time of Mr. Fish’s death, he and Brian had been estranged for two years although they had had a closer relationship when Brian was younger. In spite of the estrangement, Brian was awarded $25,000. This amount would be worth approximately $35,000 in today’s dollars. As a result, I am of the view that it would be difficult to award minor children who were not estranged from a parent who passed away less than that amount, although I also acknowledge that each case must be decided on its own merits.

[249] Second, there is the fact that two of the children were very young when they lost their mother, and they remain very young today. How the loss of their mother will affect them over the long run may be difficult to say. The awards for very young children who lost a parent were considered in Wilson v. Beck, 2011 ONSC 1789. In that case, all of the children, including the one who had been born the year that the Plaintiff passed away, received an award of $65,000. In today’s dollars, those awards would be in excess of $80,000.

[250] Finally, there was uncontradicted evidence that the children, particularly the elder two children, had been negatively affected by the death of Ms. Shaw. In respect of the eldest, Mr. Thompson noted that Ms. Shaw’s death was a “big hit” for him because he was mom’s favourite. In respect of the parties’ daughter, Mr. Thompson testified that she has significant attachment issues and is anxious (my words) if Mr. Thompson is not home. This is evidence that demonstrates the losses that the children have experienced.

[251] The facts in Wilson have some similarity to this case. The children have all lost the care, guidance and companionship of their mother who, by all accounts, was a hardworking and devoted parent. I am of the view that an award of $85,000 for loss of care, guidance and companionship is to be paid to each of the four children.

c) Pre-Judgment Interest on the FLA Claims

[252] Rule 53.10 of the Rules of Civil Procedure sets the pre-judgment interest rate for non-pecuniary damages at 5% per year. However, section 130(1) of the Courts of Justice Act provides discretion to the Court to either disallow interest or allow interest at a rate higher or lower than that provided for, or to provide interest for a period other than provided by the section.

[253] In Fleury Estate v. Kassim, 2022 ONSC 2464, the Court considered these provisions in light of an action that had taken seven years to get to trial. I note that the time period is approximately the same amount of time that this action took to get to trial. In Kassim, the Court determined that the interest rate should not be adjusted either up or down.

[254] The only difference between Kassim and the case before me is that there was a slightly longer period of higher inflation and higher interest rates between the commencement of the action and judgment. However, I am persuaded that the analysis in Kassim should be applied in this case as well. As a result, pre-judgment interest in the amount of 5% per year is to be paid on the FLA claims. I retain jurisdiction to address any calculation issues that may arise.

d) Funeral Expenses

[255] This brings me to the costs of Ms. Shaw’s funeral. The evidence showed that the cost was $13,404.20. Counsel for the Defendant properly conceded that, if liability was established, then this amount was owing to the Plaintiffs, which I therefore order.

e) Loss of Income

[256] The experts agreed on the methodology that should be used for calculating the damages as a result of a loss of dependency income. Both experts used what is known as the cross-dependency method. Under this method, the calculation is as follows:

[257] While the experts agree on the methodology, they disagree on several of the inputs to be used in applying the methodology. Based on the testimony of the experts and the submissions of the parties, the areas of disagreement are as follows:

a) The appropriate without incident after tax net disposable income for Ms. Shaw.

b) The appropriate without incident after tax net disposable income for Mr. Thompson.

c) The appropriate post-incident after tax net disposable income of Mr. Thompson.

d) The inclusion of the CPP income that Mr. Thompson is receiving. This dispute is a component of the previous dispute but should be analyzed separately.

e) The calculation and application of tax deductions for the incomes of both parties.

f) The appropriate dependency rates to be used in the calculation.

g) The length of time that the children will be dependents.

[258] I provided this list to counsel in advance of closing arguments and asked them to confirm whether there were any other disputes that I had missed. They confirmed that these were the issues I had to determine in analyzing the dependency losses. I will analyze each of these issues in turn. I will also note that both experts fairly stated that the calculations would be dependent on the findings that the Court would make.

[259] I also note that the charts presented by Mr. Soriano will be easier to work with in performing a re-calculation as they appear to me to be spreadsheets. As a result, the re-calculation of damages will be done starting from the numbers on Mr. Soriano’s spreadsheets. Where I have not adjusted a number from those spreadsheets, the numbers used by Mr. Soriano continues to be the appropriate number to be used.

[260] However, I have not performed the final calculations. Based on both the testimony of the experts and the submissions of counsel, it was clear that the inputs were all interrelated. As a result, I am leaving it to the parties to perform the final calculations and I retain jurisdiction as described below.

[261] I should note two other points about the numbers at the outset, as follows:

a) The numbers that are used to calculate life expectancy are based on a Canada Life table that both experts agreed upon. However, both experts also agreed that the Canada Life table numbers must be adjusted to take into account Dr. Brooks’ report on the reduced life expectancies of both Ms. Shaw and Mr. Thompson. Those numbers, as set out in Mr. Soriano’s report, appear to also be accepted by Dr. Carr in his second report. These numbers are to be used in calculating the damages.

b) The numbers that are used to calculate the present value of money received in the future are based on the Rules of Civil Procedure and are the same in both experts’ reports. They are to be used in calculating the damages.

[262] I am aware that the numbers in Mr. Soriano’s table are based on these inputs but are not these actual numbers. The findings I have set out in the previous paragraph should assist the parties, but for clarity my intention was to have the numbers in Mr. Soriano’s spreadsheets used for these calculations.

Ms. Shaw’s Appropriate Without Incident After-Tax Net Disposable Income

[263] There were two major disputes between the experts on the issue of Ms. Shaw’s appropriate without incident after-tax net disposable income. The first was what Ms. Shaw’s gross income should be assumed to be. The second dispute was over the tax deductions, which I will address below for both parties.

[264] On the first dispute, both experts provided several different calculations. At the root of the calculations was a dispute over what Ms. Shaw’s post-incident trajectory would have been. Mr. Soriano presumes that she would have only earned her 2015 income (adjusted for inflation) until the youngest child went to school on a full-time basis, and then Mr. Soriano assumes that Ms. Shaw would have returned to work on a part-time basis at that point. His evidence was that part of the reason for the assumption of only part-time work was that Ms. Shaw had medical problems that would have precluded full-time work.

[265] Dr. Carr notes in his second report that Ms. Shaw was in receipt of Employment Insurance (“EI”) benefits for most of the years between 2010 and 2014. Dr. Carr assumes, based on the ages of the children, that Ms. Shaw would have, as of 2016, been able to return to full-time work and earn an income at the 2009 level, adjusted for inflation. Dr. Carr testified as to the reasons for these assumptions.

[266] I am of the view that neither expert is completely correct on these assumptions. I start with what would have happened in the first few years after Ms. Shaw’s passing. Mr. Soriano is correct that there were four children at home. As I have observed earlier, as of January 1, 2016 they were all under the age of eight. The childcare responsibilities and the casual nature of Ms. Shaw’s employment with the PDSB as of November of 2015 would have precluded an immediate return to full-time work. In my view, it is reasonable to assume that Ms. Shaw would have earned part-time income until the youngest child was in full-time school (Grade 1)[^2]. At this point, it would have been September of 2019 and the eldest child would have been 11, and old enough to leave at home on his own.

[267] Therefore, for the years 2016-2019 inclusive, I find that Ms. Shaw’s gross income would have been the part-time amounts assumed by Mr. Soriano in his Scenario “A”. Those are the numbers that should be used for calculation purposes.

[268] This brings me to the calculation of Ms. Shaw’s income starting January 1, 2020. In his evidence, Dr. Carr explains that he used Ms. Shaw’s income for 2009 to determine her income going forward because that was the last year that Ms. Shaw fully participated in the workforce. As I understand his evidence, Dr. Carr’s view was that Ms. Shaw’s income in 2009 represented a good estimate of what her earnings capacity would be if she was able to work full-time going forward. Dr. Carr was of the view that it was slightly lower than the actual number because Ms. Shaw was young at this point and might have developed more skills as she matured in the workforce.

[269] I accept Dr. Carr’s evidence on this point. However, I am concerned about using only one year of earnings to project Ms. Shaw’s full-time income from January 1, 2020 until she retired. I am especially concerned about using this number because Ms. Shaw was working for two different employers in 2009. By 2015, Ms. Shaw had resigned her employment with Brampton-Caledon Community Living and was only working for the PDSB. It is possible that, in 2009, Ms. Shaw was working more hours because she had two jobs. A modest deduction from the 2009 income, of ten percent should be made. As a result, Ms. Shaw’s income from January 1, 2020 to her retirement date is to be based on 90 percent of her gross income from 2009, adjusted for inflation.

[270] I do not accept Mr. Soriano’s assumption that Ms. Shaw would only ever have returned to part-time work after the children went to school. In my view, a return to full time work would have fit the pattern of Ms. Shaw’s previous work history.

The Appropriate Without Incident After Tax Income for Mr. Thompson

[271] Determining what Mr. Thompson would have earned but for Ms. Shaw’s passing is complicated by the evidence. Mr. Thompson testified that when he first came to Canada, he was working in the agricultural sector as a temporary foreign worker. His income tax returns from 2009 to 2013 show that he only earned a small amount of money in some of the years. In other years, his only declared income was the Canada Child Tax Credit.

[272] However, Mr. Thompson testified that he was working during those years and that his work was in the construction field. As a result, Mr. Thompson testified that his income in these years was understated. Mr. Soriano could not speak to Mr. Thompson’s personal circumstances, but he did testify that there was a large cash component to the construction industry.

[273] Dr. Carr’s calculations for pre-incident earnings are based on Mr. Thompson’s average income from 2009 to 2014. While averaging the income pre-incident is often a reasonable way to calculate it, I am not prepared to use that calculation in this case. In my view, it does not reflect Mr. Thompson’s likely without incident income.

[274] By 2014, Mr. Thompson had started working at Wal-Mart in Mississauga. It was his only employment at that point, and it appeared to be relatively stable and relatively close to full-time hours. As a result, it is appropriate to use an average of Mr. Thompson’s 2014 and 2015 earnings for the purposes of calculating his pre-incident income. My calculation of that average is $22,955.50.

The Appropriate Post-Incident Income of Mr. Thompson

[275] Dr. Carr assumes that, but for Ms. Shaw’s passing, Mr. Thompson would have continued to have the same post-accident earnings as he did pre-accident and bases his calculation on that amount. Mr. Soriano, on the other hand, based his calculations on Mr. Thompson’s actual post-incident income, adjusted for inflation.

[276] I am of the view that Mr. Soriano’s approach is correct for three reasons:

a) Mr. Thompson started working for Wal-Mart prior to Ms. Shaw’s passing. He appears to have been working something close to full-time at the time of Ms. Shaw’s passing.

b) Even before Mr. Thompson started working at Wal-Mart, his evidence was that he was working before Ms. Shaw’s passing. Indeed, when his 2009-2013 tax returns were put to him in cross-examination, he advised that he had been working the whole time. As a result, one would expect this pattern of regular work to continue after the accident.

c) There was no real explanation as to why I would use the pre-accident earnings of Mr. Thompson as set out in his tax returns, especially in light of Mr. Thompson’s testimony that these numbers were not accurate. In my view, the actual data from the approximately two years prior to the passing of Ms. Shaw provides a better picture of what was likely to have happened if she had not passed.

[277] For the foregoing reasons, Mr. Thompson’s post-accident earnings will be what they were from 2016 through to the end of 2021.

[278] I must also determine what number should be used for Mr. Thompson’s income going forward. When I review the last three years of Mr. Thompson’s income (2019, 2020 and 2021), I note two points:

a) There is a one-time amount of non-employment income in 2021. I have no explanation for that number, and it does not appear to be an amount that repeats. As a result, it is excluded from Mr. Thompson’s employment income for the purposes of all calculations flowing from this decision.

b) The amount in 2020 is higher than both the amounts in 2019 and 2021. This appears to me to be a bit of an outlier. However, I am of the view that the purpose of taking an average is to smooth out these fluctuations and present a balanced picture of what the income would have been.

[279] Based on these points, Mr. Thompson’s employment income going forward should be an average of the amounts he earned from employment in 2019 to 2021. These amounts will need to be adjusted for inflation going forward. My calculation of the average is $38,555.

The Inclusion of the CPP Income that Mr. Thompson is Receiving

[280] After Ms. Shaw’s death, Mr. Thompson became entitled to a CPP survivor’s pension. Mr. Soriano’s calculations take that amount into account, while Dr. Carr’s calculations do not take it into account. In my view, Mr. Soriano is correct to take this income into account. It is money that is paid to Mr. Thompson as a result of Ms. Shaw’s passing. The family would not be receiving the CPP survivor’s benefit if Ms. Shaw was still alive. As a result, it is money that mitigates the losses that the family has suffered as a result of Ms. Shaw’s death. Therefore, it is appropriately accounted for in Mr. Thompson’s post-incident earnings.

[281] However, what flows from this finding is that, when it comes time to calculate the post-retirement numbers, Ms. Shaw’s CPP pension must be included as part of her without incident after tax income. I am setting this out to assist the parties, although I believe that is reflected in the calculations.

The Tax Deductions to be Used

[282] The calculations of loss of income are based on after tax dollars. As a result, the gross income numbers that I have set out in previous sections must have the anticipated tax deduction rates applied to them. These include income tax, CPP and EI.

[283] Mr. Soriano testified that he could not determine how Dr. Carr had calculated the tax deductions from Ms. Shaw’s income. I have the same problem. I have reviewed the testimony of Dr. Carr and I have not been able to clarify from that evidence how the calculations were done. I am aware that some number was used, but the methodology used by Dr. Carr was not clear to me.

[284] Mr. Soriano’s calculations on the other hand are clear and are specifically anchored in the tax deductions that would have been required. The methodology is spelled out in the spreadsheets that were marked as exhibits and account for CPP, EI and taxes. Therefore, I find that the methodology used by Mr. Soriano to calculate the deductions from the gross income is to be used. This conclusion applies to both the income of Ms. Shaw and the income of Mr. Thompson.

The Dependency Rates to be Used in the Calculation

[285] When using the cross-dependency method, one of the inputs is the “dependency rate”. The dependency rate is a measure of the income that is available for the benefit of the family unit after personal consumption of the spouse earning the money, in this case Ms. Shaw, is removed from the after tax income. The dependency rate will go up if there are more dependents in the family.

[286] For a two-income family with no children, Mr. Soriano uses a dependency rate of 72 percent while Dr. Carr uses a dependency rate of 71 percent. Mr. Soriano adds four percent per child to the dependency rate, thus producing a rate of 88 percent when all four children remain at home, which produces a rate of 88 percent for the whole family. Dr. Carr ends up at the same point for a family of four, although his methodology for arriving there is less clear than Mr. Soriano’s. There is, in the end, very little difference between the two experts on this point.

[287] However, Mr. Soriano explained that the numbers that he chose were based on studies from Christopher Bruce, who was identified as a leading person in the industry. The numbers come from a periodical run by Mr. Bruce. Although the difference in the numbers is very little, I accept Mr. Soriano’s numbers on the dependency rate for the purposes of performing the calculations in this case. Those numbers have a clear source and a clear explanation.

The Children as Dependents

[288] The experts offer two theories for how long the children would be dependent. One theory is that they would have been dependent on their parents until they are 18 years old, which is at the end of high school. The other theory is that they would be dependent on their parents until they had reached 21 years old, an age that assumes that they complete a college degree of some sort.

[289] In support of the theory that the children would be dependent until age 21, Dr. Carr testified that he had looked at the educational outcomes of the parents. Mr. Thompson did not finish high school, while Ms. Shaw obtained a College diploma. Dr. Carr testified that it, on average, children have a higher educational attainment than their parents. Mr. Soriano did not really take issue with this evidence.

[290] As a result, I accept Dr. Carr’s evidence on this point. It is based on average economic outcomes and there is a logic to it. Therefore, I accept that the children would have been dependent on their parents until age 21, and the losses flowing from the death of Ms. Shaw should be calculated on that basis.

[291] One issue that should be briefly addressed is the fact that the eldest child, Ky-Mani-Joel, has moved out of his father’s house as of October of 2022. I understand that he has not been doing well. He was seven years old when Ms. Shaw passed and is currently fifteen years old. The fact that he was struggling at the time of trial does not change, in my view, my prospective analysis of the length of time that he is likely to be a dependent. There is so much change that happens to children as they go through their teen years, and it is difficult to predict precisely what will happen. It is possible that this change could either speed up or slow down his movement to independence.

[292] For the purposes of all four of these children, I am prepared to accept that they will be dependent on their father until they reach the age of 21. The calculations of damages are to be made on that basis.

f) Loss of Household Contributions

[293] The other type of loss that flows from Ms. Shaw’s passing is the loss of household contributions. Each member of a household makes contributions to the running of that household, and the death of a family member leaves housework undone.

[294] Both experts agree that there are typically two methods used to calculate this loss. The first is to do a survey of the family members to determine who was doing what chores before and after Ms. Shaw’s passing. That method was not adopted by either expert in this case. The second method is to use statistics from Statistics Canada, which was agreed upon by both experts.

[295] The numbers that both experts used were Statistics Canada’s calculation of the average amount of time that was spent on housework by an employed mother. It is a common starting point.

[296] As I understood the evidence, there were two disagreements over the numbers that should be used from Ms. Shaw. First, there is an issue between the experts. Mr. Soriano applies a 20 percent deduction to the average time amounts that are spent on household activities to take account of the fact that some of these activities would have been performed by Ms. Shaw for her own benefit. Mr. Soriano testified that this number is used as a policy by his firm, and that it was based on various studies that have been done of the matter.

[297] Dr. Carr testified that he viewed the deduction applied by Mr. Soriano as “arbitrary” and provided two examples of where the deduction would not apply. One was in food preparation, where Dr. Carr made the observation that cooking dinner for five would take the same amount of time as cooking dinner for six. The other was in child care, where Dr. Carr noted that Ms. Shaw’s passing would not have changed the amount of child care that was required.

[298] The second issue is a factual dispute between the parties. Counsel for the Plaintiff argues that I should simply apply the Statistics Canada number. The Defendants argue that there is no evidence on the record to support a conclusion that Ms. Shaw was making a significant contribution to the household. To the contrary, there was evidence that Ms. Shaw’s cousin, Joy, was staying with the family on at least a part time basis for approximately a year prior to Ms. Shaw’s passing. Mr. Thompson also testified that he did most of the cooking for the family. Finally, Mr. Thompson testified that his eldest son (from another relationship) came and lived with Mr. Thompson and the children for more than a year after Ms. Shaw’s passing. As a result, the Defendant suggests that the damages for loss of household services should be very limited, at best.

[299] I start with the Defendant’s argument that there was no evidence on the record to support a conclusion that Ms. Shaw provided some household services. I disagree for two reasons:

a) There was some evidence, albeit limited, from Mr. Thompson that Ms. Shaw was involved in family activities.

b) It must be remembered that Ms. Shaw’s youngest child was less than a year old when her cousin started spending a considerable amount of time at the house. All four of Ms. Shaw’s children were under the age of 7 at this time. It is not difficult to infer from that fact that there would have been a significant amount of housework to do, and that extra hands might have been required to get it all done.

[300] I also accept Dr. Carr’s observation that the 20 percent deduction would not apply to at least some of the tasks that Ms. Shaw was performing. However, both Mr. Soriano’s observations and the presence of Joy in the house before Ms. Shaw’s passing suggest that there does need to be some deduction from the raw Statistics Canada numbers for calculating the loss of household services in this case.

[301] The difficulty is how to arrive at the correct deduction. In my view, something modestly beyond the 20 percent suggested by Mr. Soriano is appropriate in this case. I have arrived at 25 percent as a number that takes into account the fact that at least some of the household chores that would have been performed by Ms. Shaw were performed for her personal benefit. This number also takes into account the fact that Mr. Thompson and the children had help from other family members both before and after Ms. Shaw’s passing.

[302] As a result, the loss of household services is to be calculated based on the raw data from Statistics Canada as it is set out in Mr. Soriano’s report, with a twenty-five (25) percent deduction from that time throughout both the past and future calculations.

[303] Finally, the lost time in household services is multiplied by a wage rate to arrive at the value of the loss. Dr. Carr used a flat $16.00 per hour wage rate. Mr. Soriano used the wage rate for a casual household light duty cleaner, which was slightly higher. Dr. Carr did not really explain his choice of wage rate. Given that Mr. Soriano’s wage rate is tied to the Statistics Canada average for this type of service, I accept it and that is the number that should be used to perform the calculations.

g) Other Claims

[304] There are two other claims that should be considered in this case. First, there is the OHIP subrogated claim of $1,502.10. This is a standard claim for medical costs. It was supported by the documents from OHIP that were included in the damages brief that was filed as an exhibit, and the claim is unopposed. I therefore order the payment of this amount.

[305] Second, there is a claim for a 5 percent management fee on the dependency loss claims. Counsel for the Plaintiff observes that this amount is necessary because Mr. Thompson is not sophisticated and he will need assistance in managing the money that he receives. In support of this position, counsel points to the decision in Wilson, at para 276, where the Court noted that the management fee was not controversial.

[306] The Defendant opposes this expense, relying on the decision in Butler v. Royal Victoria Hospital, 2017 ONSC 2792. In paragraph 358, the Court stated:

I agree with the Defendant. The proposed management fee is still subject to the real and substantial likelihood analysis. I can do no better than adopt the wisdom of my brother Quinn J. in Dybongco-Rimando Estate v. Jackiewicz, [2001] O.J. No. 3826 (Ont.S.C.J.) when he stated at para. 72: “A professional financial advisor should be able to obtain a rate of return (net of his or her fee) that is higher than…[the plaintiff]…would experience if he invested on his own, without professional help. Otherwise, how could such an advisor stay in business?”

[307] The Plaintiff’s evidence as to the costs of the investment advisor comes from the expert report of Dr. Carr. Dr. Carr testified that the money that is provided for dependency loss must be invested and structured to last to the end of Mr. Thompson’s life. He testified that investment managers will charge as much as ¾ of a percent per year, and that a 5 percent management fee was conservative.

[308] Dr. Carr’s conclusions are based on his estimations of the financial services industry. In my view, Dr. Carr’s position is too speculative to be adopted by the Court. It also does not account for the fact, as observed by Quinn J. in Butler, that a financial advisor should be able to generate a higher return than would be generated by Mr. Thompson investing on his own. I would also note that Quinn J.’s observations were supported by Mr. Soriano’s testimony. As a result, I am of the view that there should be no allowance for an investment advisor in this case.

h) Conclusion on Damages

[309] Given the complexity of the models used to calculate damages in this case, I am not in a position where I can calculate those numbers on my own. Instead, I have provided my conclusions on the various inputs to be used and the parties are to perform the calculations. I remain seized to address any issues that may exist in the performance of those calculations.

[310] To summarize, my findings on the damages are as follows:

a) Damages are to be paid to the Estate of Elisha Shaw for pain and suffering in the amount of $40,000.00

b) FLA damages are to be paid to Mr. Thompson in the sum of $100,000

c) FLA damages are to be paid to each of the four children in the sum of $85,000.

d) Interest is to be paid on items (b) and (c) at the rate of 5% per annum.

e) The funeral expenses in the sum of $13,404.20 are to be paid.

f) For the dependency income loss calculations, the following inputs are to be used:

i) Calculations are to be made with the reduced life expectancies in Dr. Brooks’ report.

ii) Ms. Shaw’s without incident income is the part time number set out in in Mr. Soriano’s report for the calendar years 2016 to 2019.

iii) For the calendar years 2020 and forward, Ms. Shaw’s without incident income is to be calculated as 90% of her 2009 income, adjusted for inflation.

iv) Mr. Thompson’s pre-incident income is to be $22,955.50.

v) Mr. Thompson’s post-incident employment income is to be the numbers that were actually reported on his income tax return up to the end of 2021.

vi) Beginning January of 2022, Mr. Thompson’s post incident employment income is to be the average of his 2019-2021 income. I have calculated that (on a preliminary basis) as $38,555.

vii) The CPP survivor’s benefit is to be included in Mr. Thompson’s post-incident income.

viii) The deductions from income (for taxes, etc.) set out in Mr. Soriano’s second report are to be used.

ix) The dependency rates proposed by Mr. Soriano are to be used.

x) The children are to be deemed to be dependents until they reach the age of 21.

g) For the loss of household contributions calculation, the following inputs are to be used:

i) There is to be a twenty-five percent deduction from the Statistics Canada numbers in respect of the housework performed.

ii) Mr. Soriano’s wage rate for the household services is to be used in calculating the losses.

h) OHIP’s subrogated claim of $1,502.60 is to be paid.

[311] The parties are to use these inputs, within the context of the spreadsheets provided by Mr. Soriano, to calculate the damages. I retain jurisdiction to address any disputes that remain including any issues that may have inadvertently been overlooked on the differences between the experts on the dependency loss calculations as well as the calculation of interest.

Conclusion and Costs

[312] For the foregoing reasons, I conclude that Dr. Handler was negligent in his treatment of Ms. Shaw and that this negligence caused Ms. Shaw’s untimely death. As a result, damages are owing to the Estate and to the other Plaintiffs.

[313] The precise quantum of damages is yet to be determined. I have set out the methodology for the calculations and the inputs to be used in making those calculations. However, I am of the view that the parties are best positioned to actually make these calculations, as it will require consideration by Mr. Soriano and Dr. Carr. The parties are encouraged to agree on the calculations. If they are unable to agree on the calculations within twenty-one (21) days from today’s date, then they are to advise my judicial assistant and I will schedule a case conference by Zoom to discuss the process for resolving the disputes.

[314] This brings me to the question of costs. The parties are also encouraged to agree on the costs of this proceeding. Failing agreement, the Plaintiffs are to serve and file their costs submissions within twenty-eight (28) days of the release of these reasons. Those costs submissions are to be no more than four (4) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[315] The Defendant will then have a further twenty-one (21) days to serve and file his costs submissions. Those costs submissions also are to be no more than four (4) single-spaced pages, exclusive of bills of costs, offers to settle and case-law.

[316] The Plaintiff shall have a further seven (7) calendar days to serve and file reply costs submissions. Those reply submissions are to be no more than two (2) single-spaced pages, exclusive of case-law.

[317] Costs submissions are to be both uploaded to CaseLines and provided to my judicial assistant electronically. Given that the damages award has not been fully set, it is possible that there is an offer to settle that may be triggered depending on the damages awards. If that is the case, then counsel is to advise my judicial assistant (without identifying either whose offer it is or what the offer was) and I will defer the costs submissions.

[318] Finally, I would be remiss if I did not express in writing my appreciation of the work that all four counsel put into this case and the professionalism that they showed the Court and each other throughout the trial. It made my consideration of a factually difficult and complex case easier.

LEMAY J

Released: September 6, 2023

[^1]: van Rensburg J.A. was the dissenting judge in the Court of Appeal. However, an appeal from the Court of Appeal’s decision was allowed “for the reasons of Justice van Rensburg”. No further reasons were given by the Supreme Court of Canada. Other references to this decision in my reasons will be references to Justice van Rensburg’s reasons.

[^2]: I am aware of the fact that kindergarten was full-day in Ontario at this point. I am of the view that it would have taken a bit longer than merely having King-Johiah in junior kindergarten before Ms. Thompson would have returned to full-time work.