COURT FILE NO.: CV-15-531502
DATE: 20231201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Valerie McLean,
Plaintiff
Dr. Mikas A. Valadka, John Doe, Bayer Inc., Bayer A.G., Bayer Schering Pharma A.G., Bayer Corporation, Bayer Healthcare LLC and Bayer Healthcare Pharmaceuticals Inc. (“Bayer”)
Defendants
D. Pacheco and B. Di Domenico, for the Plaintiff
C. Wadsworth and A. Forest, for the Defendant Dr. Valadka
HEARD: March 7-10; 14-17; 20-23 and March 31, 2023
REASONS FOR DECISION
j.e. ferguson j.
[1] This was a medical negligence trial. Following the trial, all of the transcripts were obtained. Written submissions of the plaintiff, Valerie McLean (“Ms. McLean”) and the defendant, Dr. Mikas A. Valadka (“Dr. Valadka”), the only remaining defendant at the trial, were received on March 30, 2023. Oral submissions were heard on March 31, 2023. I have checked the transcript references in the written submissions and find them to be correct, and I am not including them in these reasons. I greatly appreciate that counsel have provided transcript and evidence references in their written submissions.
[2] The Agreed Statement of Facts is attached as Schedule “A”.
[3] Informed consent, causation and damages are in issue.
[4] Ms. McLean claims that Dr. Valadka failed to advise her of the increased relative risks associated with a hormonal birth control pill (“BCP”) Yaz, as opposed to Alesse, which she had previously taken. On May 21, 2013, Ms. McLean accepted free Yaz samples provided by Dr. Valadka and later suffered a stroke. She claims that the Yaz caused her stroke and that she would not have taken it if she had known of the increased relative risks. Dr. Valadka claims that he told her about the increased relative risks, that Yaz was an appropriate BCP and that it did not cause her stroke.
THE DECISION
[5] I find that Dr. Valadka provided Ms. McLean with informed consent. His lack of note taking, particularly on May 21, 2013, fell below the standard of care, but that was not causative. Further causation prevents Ms. McLean from succeeding in her action.
[6] The action is dismissed, and these are the reasons.
THE ISSUES
(i) Did Dr. Valadka meet the standard of care?
(ii) Did Ms. McLean provide informed consent?
(iii) Causation – Did Yaz cause Ms. McLean’s stroke?
(iv) Damages
THE PARTIES
Ms. McLean
[7] Ms. McLean was born on July 7, 1978. She obtained a degree from Sheridan College in Textile Design. Following the stroke, she obtained a degree in Activation Gerontology from George Brown College, where she was on the dean’s list and at the top of her class. She obtained a part‑time job at the Eatonville Care Centre as an Activity Aide in June of 2017. She also obtained certifications in yoga, massage therapy and aquatics. In 2014, she started teaching yoga and aquatics.
[8] Ms. McLean is an artist and enjoys singing, painting and playing musical instruments. Her passion for the arts led her to an earlier career in the arts sector. From 2006 to 2011, she worked at the Ontario Crafts Council as a membership manager. In 2011, she took a one-year contract with the Gardiner Museum as a membership associate, before being re-hired and promoted to the role of membership manager. She claims that she can no longer work as productively as a result of the stroke and is limited to part‑time work. (There is no expert support for her position.)
[9] Ms. McLean qualified for the Ontario Disability Support Program (“ODSP”) in 2013 and continues to receive those benefits.
[10] Ms. McLean’s health history was unremarkable with no major surgeries or issues with her heart, blood pressure or diabetes. She had never suffered a blood clot nor stroke and had no known risk factors for stroke. She had no family history of blood clots or strokes.
Dr. Valadka
[11] Dr. Valadka is Ms. McLean’s former family physician. He graduated from medical school in 1980 and began practicing in Toronto in 1983 for about 38 years. He also had hospital privileges and worked at nursing homes. He mostly treated “not well-to-do people”. He offered medication samples to patients with financial limitations, including Ms. McLean. He is now retired.
MS. McLEAN’S MEDICAL BACKGROUND
[12] Ms. McLean struggled with acne for much of her life, which, in her teenage years, was terrible, causing pain, scarring and embarrassment. Prior to becoming Dr. Valadka’s patient, she had tried various over-the-counter (non-prescription) treatments, including Oxy and cleaners (Cetaphil), which were unsuccessful. She attempted further treatment with the BCP. She also took Accutane but stopped it quickly, as it dried out her skin.
[13] Ms. McLean described herself as a particularly risk averse individual and believes that she took reasonable efforts to ensure that she was fully informed before making health decisions. She would have reviewed the product monographs prior to taking medications for the first time (including for the BCPs).
[14] Ms. McLean understood that one of the risks of the BCP was a blood clot; although, she understood that the risk was quite low.
[15] Ms. McLean had her first appointment with Dr. Valadka on May 28, 2003. She was in good health and was not taking the BCP. She provided a detailed family and personal medical history. She had no personal or family history nor risk factors for blood clot or stroke. She was a non‑smoker. While she had a history of migraines, they did not include an aura which, if present, may have been a risk factor for stroke. As a result, she had no reported contraindications, co‑morbidities or risk factors that increased her risk or precluded her from taking the BCP.
[16] At the time of her first appointment with Dr. Valadka, Ms. McLean had already taken the BCP for treatment of her acne and for contraception, and he noted in his chart that she “had been on pills for better skin”. She could not recall on which BCP or BCPs she had been on.
[17] Dr. Valadka was aware that Ms. McLean did not have a drug plan and was not in a position to pay for all prescription medications. As such, he provided her with sample medications when available (including the BCP, Maxatt, Elavil and Relapax to treat her migraines).
[18] On June 6, 2003, Dr. Valadka provided Ms. McLean with sample packs of Alesse and advised her that it had fewer side effects than other BCP brands.
[19] Alesse is a combination BCP, containing two different hormones: progesterone and estrogen. Alesse is a low dose estrogen pill, and as a result, its risk of serious side effects is much lower. It contains the same dose of estrogen as Yaz. It is indicated for acne management, contraception and menstrual irregularity.
[20] Between June 6, 2003 and February 14, 2008, Ms. McLean remained on Alesse and did not experience any issues or side effects.
[21] Dr. Valadka referred her to a neurologist, Dr. Dimitrakoudis, for her migraines. Dr. Dimitrakoudis saw her on July 17, 2003, August 18, 2003 and September 22, 2003 and expressed no concern regarding her use of the BCP.
[22] I list other referrals that Dr. Valadka made because Ms. McLean seems to have made a complaint about a lack of referrals:
(i) an allergist, Dr. Jancelewicz, in 2003 and 2005, regarding her recurrent nasal congestion and cough;
(ii) a plastic surgeon, Dr. Fielding, in 2004, regarding a growth on her sternum;
(iii) an orthopedic surgeon, Dr. Kliman, in 2005, regarding complaints of heel pain;
(iv) a respirologist, Dr. Rodriguez, in 2005, regarding her recurrent cough, and who also arranged for her to see an otolaryngologist, Dr. Gantous, in 2007;
(v) a respirologist, Dr. Balter, from 2011-2012, regarding her recurrent cough, and who also arranged for her to see another respirologist, Dr. Nair, in 2012;
(vi) an immunologist, Dr. Ho, in 2012, regarding her recurrent nasal congestion and cough.
[23] Clearly, Dr. Valadka was not unwilling to make referrals. He also made three referrals to dermatologists: (i) to Dr. Jarvis in September of 2003; (ii) to Dr. Hacker in July of 2007; and (iii) to Dr. Vincent in January of 2009. There were no consultation reports in his chart for Drs. Jarvis or Hacker, and Dr. Valadka does not know why that is the case. There is no question that a referral to Dr. Vincent was made because there is a note in Dr. Valadka’s chart indicating that Ms. McLean did not attend her appointment with him. Ms. McLean denies that he made these referrals. In any event, this case is about the use of the BCP, and the referral issue is not relevant.
[24] On February 14, 2008, Dr. Valadka provided Ms. McLean with sample packs of Diane‑35 (“Diane”), which is another combination BCP that contains estrogen and progestin. Diane is a “quasi contraceptive” pill that is also indicated for the treatment of acne and menstrual irregularity. It has a higher estrogen component than Alesse and Yaz. Like all BCPs, Diane carries a risk of blood clot, however, the risk is higher with Diane than with Alesse, due to the higher estrogen component. Ms. McLean accepted the samples and took the Diane.
[25] Dr. Valadka provided Ms. McLean with five free sample packs of Diane on February 14, 2008. Ms. McLean began taking Diane that same month. Dr. Valadka testified that Diane was initially provided because Ms. McLean needed further BCPs, and her period had become irregular over the previous month. He testified that he suggested switching from Alesse to a different BCP, and he had Diane samples. Ms. McLean’s testimony is that she wanted to try Diane and requested it from Dr. Valadka because she had a discussion with a friend who had similar acne and scarring, and she saw the difference in her acne while on that BCP. In any event, they both agree that Ms. McLean agreed to switch from Alesse to Diane.
[26] Dr. Valadka’s standard practice in terms of what he would tell a patient about Diane the first time he provided it included: (1) advising the patient of the fact that the formulation of Diane was chemically different and that it had a higher estrogen content; and (2) that there was a concern that Diane would have an associated larger side-effect profile and risk profile because of the higher estrogen content. This would have been explained to Ms. McLean. Dr. Valadka clarified that he did not go into a lengthy discussion regarding the increased estrogen content, but his intention was to indicate that any risks or side-effects would be linked to that increase. He also would have asked Ms. McLean whether she had any questions about that. While Ms. McLean cannot remember this conversation, she does not deny that a conversation about the risks of Diane occurred.
[27] Ms. McLean has a standard practice of reading the product monograph before starting a new medication. The product monograph for Diane in place at the time stated that, “Diane-35 users appear to have an elevated risk of blood clots compared to users of combination oral contraceptives in some published studies.” Ms. McLean agreed that she would have likely read this warning. She took the Diane despite the warning.
[28] Dr. Valadka provided Ms. McLean with prescriptions for Diane on July 30, 2009 and September 13, 2010. Ms. McLean took Diane until February of 2012. She did not experience any side-effects, and Diane was extremely helpful for her acne.
[29] Ms. McLean would read the product monograph for every new medication before starting it, with a particular emphasis on risks and side-effects. The Diane product monograph that was in place at the time Ms. McLean was first given Diane stated under the “Warnings” heading that “Diane-35 users appear to have an elevated risk of blood clots compared to users of combination oral contraceptives in some published studies.” (Note that this is nearly identical to the 2011 Yaz product monograph that reflects the information in the Health Canada Information Update):
Diane-35 product monograph as at Feb 2008 when Ms. McLean first started taking Diane-35
(Feb 27, 2007)
DIANE-35 users appear to have an elevated risk of blood clots compared to users of combination oral contraceptives in some published studies.
Yaz product monograph as at May 2013
(Nov 30, 2011)
It has been reported that drospirenone, the progestin in YAZ, may carry a higher risk of blood clots than some other progestins (including levonorgestrel). You should talk to your doctor about the available options.
[30] If Ms. McLean agreed to take Diane in light of that risk, then certainly a reasonable person in her position likely would have agreed to take Yaz which came with a near identical warning.
[31] Ms. McLean is seemingly attempting to minimize the impact of Diane on the modified‑objective test by suggesting that Dr. Valadka did not advise her of the increased relative risks of Diane when he first provided her with the drug. His testimony was that he did. However, whether Dr. Valadka advised Ms. McLean of the increased relative risk of blood clots associated with Diane is irrelevant to both the action as a whole, and to the modified-objective test.
[32] First, there is absolutely no allegation in the amended statement of claim that Dr. Valadka failed to obtain Ms. McLean’s informed consent with respect to Diane (or that it was not indicated for her or was provided inappropriately). This is not a live issue in the case. It is not part of the claim, and accordingly the experts did not canvass this issue when preparing their reports.
[33] Second, Dr. Valadka was not specifically confronted by plaintiff’s counsel at trial with a suggestion that he did not advise Ms. McLean of the increased relative risks of Diane when he first provided it to her. His evidence was that his standard practice would be to advise a patient that the formulation of Diane was chemically different (it contained a higher estrogen component) and there was a concern that Diane would have a larger side-effect and risk profile as a result. He testified that this was explained to Ms. McLean and while he did not go into a lengthy discussion, his intention was to indicate that any risks and side-effects would be linked to that increase in estrogen. Dr. Valadka’s evidence on this point was not impeached and any suggestion otherwise at this stage would run afoul of the rule in Browne v. Dunn. In any event, I accept his evidence.
[34] Third, even if Dr. Valadka did not advise Ms. McLean of the increased relative risk associated with Diane, which is denied, this still makes no difference whatsoever to the analysis under the modified-objective test. Ms. McLean admitted that she likely would have read the above warning in the Diane product monograph and yet she still took the drug:
Q. Okay. So you would have understood before you started taking Diane that it came with an elevated risk of blood clots?
A. I actually did not know that.
Q. Okay. You didn’t know that, but you think you would have read this in the monograph?
A. I might have skimmed that part, I don’t know.
Q. Well, it’s more than “might”. You’ve told us that you would have been paying attention to things that would have impacted your health, right?
A. There is no bullet point saying this is symptoms or anything like that. I might have skimmed that part.
Q. No bullet point, but there’s a big bolded heading that says “warnings” with a numbered list, right?
A. Right.
Q. So that’s something you would have looked at?
A. I can’t guarantee that I saw it.
Q. Okay.
A. Because I don’t even remember a box.
Q. Don’t remember, but based on everything you’ve told us about how you’re health conscious, how you review the monograph, it’s more likely than not that you would have looked at this?
A. Possibly.
Q. More than possibly. You would have likely looked at this?
A. Okay. I agree to that, I guess.
[35] On February 21, 2012, Dr. Valadka switched Ms. McLean back to Alesse, likely providing her with samples. On June 14, 2012, he provided her with more sample packs.
[36] Dr. Valadka would have mentioned to Ms. McLean that any side-effects were expected to be less with Alesse than with Diane. He would not have had a lengthy discussion with her because she had been on it for a significant period of time in the past, and it was a drug with which she was comfortable.
[37] Ms. McLean had been on the BCP for over a decade before Dr. Valadka provided her with samples of Yaz on May 21, 2013. He believes that he did not have sample packs of Alesse at that time. Ms. McLean confirmed that she was low on funds at that time and as Diane was a more expensive BCP she took the offered Yaz samples.
[38] Yaz is a combination BCP, manufactured and distributed by Bayer. Like Alesse, it is indicated as both an oral contraceptive and for the treatment of acne. Yaz contains progesterone as well as estrogen. Estrogen is common to all combination BCPs. Yaz has the same estrogen dose as Alesse and is considered a low-dose estrogen pill. Dr. Valadka had received free samples of Yaz, likely from a drug representative of Bayer.
[39] On December 5, 2011, Health Canada published an Information Update about Yaz (which Dr. Valadka testified that he read) which stated:
Health Canada has completed a safety review of drospirenone-containing oral contraceptives (marketed under the brand names Yasmin and Yaz) with respect to the risk of blood clots (venous thromboembolism, or VTE). The review determined that drospirenone-containing birth control pills may be associated with a risk of blood clots that is 1.5 to 3 times higher than other birth control pills.
Blood clots are a rare but well known side effect associated with all birth control pills. The risks of blood clots are higher with pregnancy and childbirth than with oral contraceptives.
As part of its review, Health Canada considered several recent observational studies evaluating the risk of blood clots with drospirenone-containing oral contraceptives versus other oral contraceptives. Overall, the body of current evidence suggests that the risk of blood clots is 1.5 to 3 times higher with oral contraceptives that contain drospirenone relative to those that contain levonorgestrel, a different hormone.
Overall the risk of blood clots with any oral contraceptive (including Yasmin and Yaz) is very small.
To put this into perspective, if the estimated risk of developing a blood clot among women taking a levonorgestrel containing birth control ill is 1 in 10,000 women per year, as some studies have estimated, then the risk in women taking a drospirenone birth control pill is about 1.5 to 3 women in 10,000 per year.
Note that I do not find this to be a significant increase.
[40] There was no Yaz product recall, and Health Canada did not prohibit its distribution. In fact, Yaz remains on the market today as a popular BCP.
[41] After Health Canada issued the Information Update about Yaz in December of 2011, a Bayer representative attended at Dr. Valadka’s office to discuss it with him. Dr. Valadka’s testimony about the discussion is as follows:
Q. What was your discussion with the Bayer representative?
A. In that discussion we first of all – first of all discussed the differences of Yaz which I already knew and their chemical compound, drospirenone versus levonorgestrel as the progesterone component, we discussed that.
We also discussed the relative risk of blood clots that Yaz could for, relative risk compared to other birth control pills.
Q. And I know you’re not finished your explanation. Why don’t we take it in parts. Let’s deal with that part first.
What do you recall about the discussion about the relative risks?
A. The relative risks, depending on how you want to express this. The relative risks were expressed one way of one and a half up to three. Here it’s written down, for 10,000 patients in the past – or in my dealing with Yaz in the future, I used those numbers over 3,000 patients. I over emphasized the side‑effects.
Q. Okay. We’re going to come to the conversation you had with Ms. McLean and the numbers that you provided to her. But I want to just focus on the conversation you had with the Bayer representative sometime in 2012. What do you recall about the relative risks that you and Bayer representative discussed?
A. The specific recollection that I have is that the relative risk could be, and we used that in the discussion, above 200 percent higher relative risk of significant side-effects such as blood clots.
We also control – discussed the absolute risks of such problems as has been discussed here in court before, but we also discussed with the Bayer rep that the total absolute increase in risk was maybe very, very small and clinically not very significant.
And I expressed by synopsis of talking with this rep that I was not terribly alarmed by that statistic of the change from whatever number you want to use per 3,000 patients or 10,000 patients, whatever. Here it says 10,000 patients.
[42] The Bayer representative did not ask Dr. Valadka to return the Yaz samples that had been previously provided to him. Dr. Valadka testified that Yaz was a popular drug and remains on the market today.
[43] Both Ms. McLean and Dr. Valadka agreed that they discussed Alesse during the May 21, 2013 appointment, but that Dr. Valadka did not have any available Alesse samples and only had samples of Yaz. Their accounts differ on whether Dr. Valadka disclosed the increased relative risks associated with Yaz and whether he offered Ms. McLean a prescription of Alesse.
[44] Ms. McLean testified that Dr. Valadka told her that “we can get you back into Alesse, because that was effective for you before,” but because he did not have any samples of Alesse, he gave her Yaz, which he told her was similar. She denies that a prescription of Alesse was offered.
[45] Dr. Valadka testified that he has a fairly good memory of the May 21, 2013 appointment because: (i) there had been a Health Canada Information Update about Yaz; (ii) a representative from Bayer had attended at his office to discuss the update with him (the first time a manager from Bayer had ever come to his office to discuss such an update); and (iii) the stroke that Ms. McLean suffered not long after the appointment was alarming to him. He told her about the increased risk but also told her that the absolute risk remained very low. He did not provide her with the percentage of increased risk. I accept Dr. Valadka’s evidence in this regard, as he did not attempt to exaggerate what he told her. Ms. McLean took the samples that were offered.
[46] Ms. McLean reviewed the December 23, 2008 Yaz product monograph before she started taking it. She has a practice of reviewing the product monograph before starting a new medication, including reading about any risks, side‑effects, contraindications or exclusions and other health dangers.She assumed that anything written in the product monograph was true, and she relied on that information to be true before starting the medication. In particular, she read the risk section. She confirmed that she would have seen the warning about a blood clot associated with the BCP.
[47] The Yaz samples that were given to Ms. McLean were not expired, but the 2008 Yaz included in the sample boxes did not include the brief additional information Bayer subsequently added to the product monograph to reflect the 2011 Health Canada Information Update.
[48] The November 2011 Yaz product monograph included a short additional note about the risk of blood clots: “It has been reported that drospirenone, the progestin in YAZ, may carry a higher risk of blood clots than some other progestins (including levonorgestrel).” Ms. McLean did not see this version of the monograph before starting to take Yaz. Even if she had seen this monograph, I find that she would have taken the Yaz as she took other drugs that carried risks (see Accutane and Prednisone analysis which follows).
[49] Yaz remains available in Canada and continues to be a best-selling pharmaceutical product for Bayer. There were no product recalls of Yaz in Canada, even after the Health Canada Information Update in December 2011. Health Canada’s role is to ensure that medications are safe. If it determines that a medication is not safe, it will be withdrawn from the market.
[50] The product monograph she read advised of the risk of blood clots but not the potential increased risk. Her position is that Dr. Valadka should have told her about the potential increased risk. I have already indicated that I accept his evidence that he did tell her about the increased risk, just not the percentage of increased risk. However, I find that even if she had been provided with this additional information, she would nevertheless have taken the Yaz. Just as she had accepted the risk of blood clots associated with the other BCPs, including a similar increased relative risk of blood clots associated with Diane, Ms. McLean accepted the risk and decided to take the Yaz. This decision was also consistent with her history of taking other medications which carried the risk of serious side effects, including Accutane and Prednisone. Ms. McLean knew that all medications came with risks, and she trusted her doctors’ recommendations. In view of Ms. McLean taking Diane with a higher risk than Alesse, a reasonable person in her position would have agreed to take Yaz, which came with a near identical warning (informed consent further dealt with below).
[51] With respect to the use of Accutane (and I use this as one example of Ms. McLean’s acceptance of other medications that carry increased risks), Ms. McLean confirmed that she tried Accutane while at Sheridan College in approximately 2001. This is before she became a patient of Dr. Valadka. She understood at that time that “Accutane was meant to treat severe acne that wasn’t responding to other treatments”. She acknowledged that Accutane “was a stronger drug, but any drug has kind of warnings on it”. While she did not recall reading about the many serious risks associated with Accutane, she did not dispute that she would have read about them in the product monograph. She confirmed that she would have weighed the risks and benefits and ultimately decided to take Accutane:
Q. You would have to weigh though the risks and benefits before you took the medication?
A. Yes, I would have.
Q. And ultimately you decided to take Accutane?
A. Yes.
[52] At trial, the experts agreed that Accutane is a risky drug. Dr. Rudner (the family physician expert called by Dr. Valadka), stated that he would refer women who wished to take Accutane to a dermatologist because he did not feel comfortable prescribing it himself, given its high risk. He testified that Accutane dries out the mucous membranes and is highly unbearable for many people. Further, because of the serious birth defects it can cause in women of child-bearing age, female patients must sign a consent form. Dr. Morris’ testimony about Accutane was consistent with Dr. Rudner’s. He agreed that Accutane comes with very significant side effects, including birth defects and that the side effects are so serious that the patient has to sign a consent form before taking it.
[53] The fact that Ms. McLean agreed to take Accutane despite the significant risks associated with it is further evidence that she likely would have taken Yaz if advised of the increased relative risk.
[54] Another example of Ms. McLean’s accepting a drug with higher risks is the use of Prednisone.
[55] Ms. McLean took Prednisone after it was prescribed to her by a respirologist, Dr. Balter, in September of 2011. This was after Dr. Balter had explained the risks of Prednisone to her, which included avascular necrosis (i.e., the death of bone tissue due to a lack of blood supply). Dr. Balter’s consultation note states: “I have explained all potential side effects including the rare risk of avascular necrosis.” Ms. McLean testified as follows:
Q. And so I understand you probably don’t remember the conversation with Dr. Balter, but given that he wrote [“I have explained all potential side-effects, including the rare risk of a vascular necrosis”] you’re not denying that he informed you of those risks?
A. I’m not denying it, no.
Q. And Ms. McLean, I put it to you that you would have understood at the time that a vascular necrosis is the death of bone tissue due to a lack of blood supply?
A. Sorry, what’s the question?
Q. Dr. Balter has said that he tells you there’s a rare risk of vascular necrosis, and I’m saying that it was explained to you at the time that what a vascular necrosis is, is the death of bone tissue due to a lack of blood supply?
A. I don’t think that he would have said it in those words exactly. That would have sounded alarming if he would have said it in those words.
Q. You’re right, that does sound like an alarming risk, right?
A. Right?
[56] Dr. Morris agreed that avascular necrosis is a rare but serious side effect of Prednisone.
[57] The fact that Ms. McLean took Prednisone despite being advised of risks, including the serious risk of avascular necrosis, demonstrates that she (or a reasonable person in her position) would have also taken Yaz if advised of the increased relative risk.
STANDARD OF CARE
[58] The standard of care requires that a physician exercise the reasonable degree of care and skill of a normal, prudent practitioner of the same experience in the same circumstances.[^1] Physicians are not held to a standard of perfection.[^2] The law does not demand that physicians become guarantors of treatment results, nor does it demand infallibility.[^3]
[59] The appropriate standard of care is determined by the trier of fact. Expert evidence is required for the trier of fact to determine whether a physician has breached the standard of care, as a medical practitioner’s conduct is not generally within a person’s ordinary knowledge and experience.[^4] Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.[^5]
[60] To succeed in an action for medical negligence, the onus is on the plaintiff to show that the physician has breached the standard of care of a reasonable and prudent physician of the same experience and standing, having regard to all of the circumstances of the case.[^6]
[61] The plaintiff’s onus is to prove more than an error in judgment.[^7] A physician is not liable for an honest error of judgment, provided he has exercised his judgment honestly and intelligently in the plaintiff’s best interests.[^8] Where, however, a physician fails to avail himself of relevant clinical information or fails to obtain relevant consultations or test results, the failure to do so is not a mere error in his exercise of judgment but constitutes negligence.[^9]
[62] Where there are a number of different techniques (in this case, medications) available to treat the same medical condition, a physician is permitted to exercise his discretion in determining the best course of treatment/medication for that particular patient.[^10] Negligence cannot be assumed simply because, viewed in retrospect, another course of action (medication) would have been preferable.[^11] “[D]ifferences of opinion are a common experience in medical and other professions.”[^12] Rather, what must be found is that the course of action chosen by the physician is not a choice which would have been made by a reasonable, competent physician in the circumstances.[^13]
[63] An unfortunate outcome does not constitute proof of negligence. The assessment of a physician’s care as against the standard of care cannot be retrospective, and courts should be careful not to rely on the perfect vision afforded by hindsight. Otherwise, the physician will not be assessed according to the norms of the average physician of reasonable ability in the same circumstances but, rather, will be held accountable for mistakes that are only apparent after the fact.[^14] A plaintiff’s case that applies an outcome-based retrospective approach – working backwards to prove negligence based on the result – is fundamentally flawed in law and contrary to repeated admonitions in the caselaw.
[64] When determining whether there was a breach of the standard of care, the trier of fact should not focus on whether a specific act or omission constituted fault. Rather, the test is whether the physician behaved similarly to a reasonably prudent and diligent fellow professional in the same circumstances.[^15]
[65] The practice of medicine requires the exercise of medical judgment. The law requires that reasonable care be taken in the exercise of medical judgment.[^16] A physician should not be held liable for making an honest error in judgment.[^17] As was stated in Hillis v. Meineri:
The standard of care cannot be elevated such that physicians are expected to take action based upon the worse-case scenario. This is set out in Cardy v. Trapp, [2008] O.J. No. 4547 (Sup. Ct.), at paras. 37-39 (“Cardy”) as follows:
It would be wrong to require a physician to practice to a standard that anticipated a worse case scenario as the risk and elevate the standard of practice accordingly. We know the standard of practice applied has a degree of risk. We know now that additional communication and checks could have prevented the delay in obtaining a diagnosis. But the court must be careful not to rely upon the perfect vision afforded by hindsight. [Citations omitted.]
…It might well have been helpful if [the defendant doctors] had conducted their practices to such an elevated standard, but this court is unable to find that they were obliged to so do and that their failure to do so constituted negligence.
A finding of negligence cannot be based merely on the consequences of medical treatment to a patient. The law requires reasonable care, not infallibility, and recognizes that reasonable physicians make mistakes: Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, [2001] A.J. No. 877 (Q.L.), at para. 80. Physicians are not guarantors of the results of their treatment, and, in medicine, adverse outcomes are often unpredictable or unavoidable even where the medical care has been reasonable. In Lapointe v. Hôpital LeGardeur, supra, at para. 28, the Supreme Court held:
…[C]ourts 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.[^18]
[66] It is well recognized that physicians must exercise their clinical judgment when providing care to a patient. Different physicians may attribute significance to different factors, depending on their own experience.[^19] The court must be careful not to find liability based on errors of judgment if that judgment was reasonably exercised. The honest and intelligent exercise of reasonable judgment by a physician, even if incorrect, is not negligent. “Correctness” has no place in assessing whether the standard of care was met.
[67] When determining whether the physician acted in accordance with the applicable standard of care, the court is also not to rely on the benefit of hindsight.[^20] It is an error of law to employ an outcome-based approach when determining whether the physician met the standard of care.[^21] The fact that the risk of a procedure/medication materializes does not necessarily mean that liability attaches to that risk. As confirmed by the Supreme Court of Canada in St-Jean v. Mercier and more recently in Leckie v. Chaiton, “[p]rofessionals have an obligation of means, not an obligation of result.”[^22] Applying an overly critical and retrospective judgment when assessing the exercise of a physician’s clinical judgment would be unfair.[^23]
[68] In this case, apart from Dr. Valadka’s record‑keeping, Ms. McLean has not established a breach of the standard of care. Dr. Valadka exercised the reasonable degree of care and skill of a normal, prudent family practice practitioner. As dealt with below, I prefer the evidence of Dr. Rudner (the reasons are set out below).
Usual Practice
[69] Evidence of a physician’s practice, habit or custom may be admitted as circumstantial evidence of a fact in issue. The usual practice of a physician is admissible as evidence of what occurred during a particular patient encounter. This is true whether or not the actions of the physician have been documented.[^24] Given the passage of time and the documentation problems, reliance on usual practice will often be required at trial.
[70] The value of usual practice evidence lies in the inferences that can be reasonably drawn from it. This depends on the regularity of the practice and all other evidence, particularly other direct or circumstantial evidence that impacts on whether the practice was followed.[^25] In other words, where a physician has no specific recollection of their dealings with a patient, they are entitled to testify as to what their ordinary or invariable practice was.[^26] The weight attached to the evidence is to be determined by the trier of fact, on a case by case basis.[^27]
[71] I accept Dr. Valadka’s evidence where he testified that he had to rely on his usual practice. He was very straightforward in that regard.
Record Keeping
[72] There is an issue as to the adequacy of Dr. Valadka’s charting. (I note that this was not pleaded in the amended statement of claim.)
[73] Pursuant to General, O. Reg. 114/94, s. 18(1) (regulations under the Medicine Act, 1991, S.O. 1991, c. 30), a physician is obligated to make records for each patient containing the date of each professional encounter (s. 18(1)(5)) and a record of the professional advice given to the patient (s. 18(1)(7)).
[74] The purpose of medical records is twofold. The first is to remind the person providing care of the past and present condition of the patient and the treatment already given. The second is to communicate this information to others who may also be caring for the patient.[^28]
[75] A physician’s failure to comply with the regulatory requirement for the maintenance of proper records can amount to a breach of a reasonable standard of care.[^29] A negative inference can be drawn when a physician’s record-keeping is lacking.[^30] Even where a record-keeping failure does not justify an adverse inference, it may invite a more searching evaluation of the physician’s testimony on matters that the records do not adequately address.[^31]
[76] However, in order to be relevant in the standard of care analysis, record keeping must play a causative role in the adverse outcome.[^32] Therefore, even if a finding is made that there was a failure to maintain the standard of care with respect to record keeping, this finding can only be relevant to the overall analysis of liability if it is determined that the failure to document in and of itself caused the injury.[^33]
[77] An absence of entries in the medical record does not automatically indicate that because nothing was charted, nothing was done.[^34] This is not a principle of law. Rather, it is a possible conclusion of fact based on the evidence in each case.[^35] While it was a conclusion reached by the Supreme Court of Canada in Joseph Brant Memorial Hospital v. Koziol, this inference was only drawn after a careful weighing of all the evidence within the specific context of the case.[^36]
[78] When records are incomplete, it is for the trier of fact to weigh the evidence to determine what occurred during a particular encounter. This determination necessarily relies on an assessment with respect to the credibility and reliability of witnesses. This assessment must be done within the circumstances of the case.
[79] Ms. McLean criticizes Dr. Valadka’s record-keeping practices and, in particular, his lack of a note for the informed consent discussion regarding Yaz and for not offering a prescription of Alesse on May 21, 2013.
[80] Dr. Valadka acknowledged that he ought to have made a better note of that appointment. He testified that there is no admissible excuse that he could offer for no note except that he was a busy doctor, and that perhaps he wanted to come back to write an additional note shortly after, but never got to it. He acknowledged that the lack of notetaking does not meet the standard of care. His position is also that he offered Ms. McLean a prescription of Alesse that day. I need not determine whether that was done and he has acknowledged the breach of the standard of care resulting from his lack of note‑making.
[81] I also agree with Dr. Valadka that this breach of the standard of care is not causative of any damage allegedly suffered by Ms. McLean. Ms. McLean accepted the Yaz samples, as she did with other medications. Furthermore, Ms. McLean has not established that the Yaz caused her stroke (dealt with further below).
INFORMED CONSENT
[82] The law includes the following:
(i) As the Supreme Court of Canada observed in Hollis v. Dow Corning Corp., citing its earlier decisions in Hopp v. Lepp, and Reibl v. Hughes:[^37]
[P]hysicians have a duty, without being questioned, to disclose to a patient the material risks of a proposed procedure, its gravity, and any special or unusual risks, including risks with a low probability of occurrence, attendant upon the performance of the procedure.[^38]
(ii) The court in Hollis goes on to explain that the principle underlying “informed consent” is:
[T]he “right of a patient to decide what, if anything, should be done with his body” … The doctrine of “informed consent” dictates that every individual has a right to know what risks are involved in undergoing or foregoing medical treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks.[^39]
[83] The case law is clear that informed consent is a distinct cause of action, which is separate from a breach of the standard of care.[^40]
[84] To establish a claim based on a failure to obtain informed consent, the plaintiff must satisfy the two-part test.[^41] The test requires the plaintiff to prove the following:
(a) the physician failed to disclose the nature of the procedure (medication) or its material risks such that the patient was uninformed when undergoing the procedure in question;
(b) the patient herself would not have undergone the procedure (the taking of the medication) in question had she been properly informed; and
(c) a reasonable person in the patient’s position would not have undergone the procedure in question (the taking of the medication) if fully apprised of the material risks.
[85] The first step of the test relates to adequate disclosure. The latter two parts of the test relate to causation and contain subjective and modified objective components.[^42]
[86] In the result, after establishing a failure to disclose material information, the plaintiff must demonstrate on a balance of probabilities that they would not have gone ahead with the operation (medication) on the “modified objective test”.[^43]
[87] This analysis, on both steps of the informed consent test, turns on the particular facts of each case.[^44]
Step 1: Adequate Disclosure
[88] According to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 11(3) (the “HCCA”), a physician is required to disclose the nature of the treatment; the expected benefits of the treatment; the material risks of the treatment; the material side effects of the treatment; alternative courses of action; and the likely consequences of not having the treatment.
[89] Section 11(2) of the HCCA is clear that consent to treatment is informed if, before giving it:
(a) the person received the information about the matters … that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and
(b) the person received responses to her requests for additional information about those matters.
[90] In addition to the HCCA, the common law has developed a set of principles with respect to a physician’s duty of disclosure. Without being questioned, a physician must disclose the nature of the proposed treatment; its gravity; any material risks, and any special or unusual risks associated with it.[^45] Where the proposed medical treatment is elective rather than medically necessary, information is much more likely to be classified as material.[^46] Similarly, where the proposed medical treatment is elective rather than medically necessary, the duty to disclose alternatives is enhanced.[^47]
[91] A “material risk” is one that a reasonable person in the patient’s position would want to know before deciding whether to proceed with the proposed treatment.[^48] Expert evidence is relevant in determining the material risks involved with a particular procedure (medication in this case). Probable risks must be disclosed.[^49] Possible, remote and rare risks must also be disclosed where the consequence of the risk, should it materialize, would be serious.[^50] The frequency or likelihood of the risk materializing must also be disclosed.
[92] The consequences of the injury, should it occur, must be disclosed, including warning the patient that it could be life-threatening.[^51] Disclosure of material information should not be dependent upon the patient asking “the right” questions. If a patient does ask questions, however, the physician must answer them.[^52]
[93] The physician does not need to describe every detail of the proposed treatment to meet the duty of disclosure, nor do they have to provide exact statistical probabilities.[^53] Generally, the failure to mention statistics should not affect the duty to inform nor be a factor in deciding whether the duty has been breached.[^54] In this case, neither standard of care expert testified that specific numbers or statistical probabilities needed to be disclosed in order to meet the standard of care. In my view, Dr. Valadka adequately explained the increased risk of taking Yaz. He met the standard of care with respect to his use of Yaz with Ms. McLean.
[94] Physicians do not have an obligation to disclose alternative treatment options unless they are clinically indicated or they would, in the view of the physician, be of some benefit to the patient.[^55] Furthermore, a plaintiff generally requires expert evidence to prove that those alternative treatment options were medically reasonable alternatives.[^56] In any event, Ms. McLean had been on two other BCPs prior to starting on Yaz.
Step 2: Causation
Factual Causation
[95] Factual causation (what actually caused the stroke) is also a crucial aspect of this case. I find that Ms. McLean has not met her burden of demonstrating on a balance of probabilities that her stroke was caused by Yaz. After extensive testing, the team of physicians at Hamilton Health Sciences, where she was admitted after the stroke, concluded that it was a “cryptogenic” stroke (a stroke of unknown cause). Even after a comprehensive stroke workup at Toronto Western Hospital’s stroke clinic in 2018-2019, the cause of her stroke was still not identified. The causation experts agree that cryptogenic stroke is a common diagnosis when a young person has a stroke.
[96] Even if a plaintiff establishes that a physician failed to adequately disclose a material risk or treatment alternative, the informed consent claim will still fail if the plaintiff cannot establish causation on both a subjective and modified objective basis. Both must be established for the patient to prove on a balance of probabilities that the patient is entitled to damages for a lack of informed consent.[^57]
[97] Factual causation is the determination of what, in fact, caused the outcome or injury. While factual causation is often straightforward or non-controversial, in other cases, such as this one, the issue of whether there has been a breach of the standard is linked to the factual causation inquiry. The plaintiff must establish that her injuries were a result of Yaz, which could have been avoided had Dr. Valadka not breached the standard of care. Causation is dealt with further below in which I have found that Ms. McLean did not meet her causation burden. The only breach I have found is with respect to Dr. Valadka’s record keeping, which has nothing to do with Ms. McLean’s stroke.
Legal Causation
[98] Legal causation is a different inquiry than factual causation. The plaintiff must prove on the balance of probabilities that the injury would not have occurred “but for” the allegedly negligent acts of the defendant. The phrase “but for” means that the defendant’s negligence was necessary to bring about the injury.[^58]
[99] The “but for” test is a factual inquiry that recognizes that compensation for negligent conduct should only be awarded where there is a “substantial connection” between the injury and the defendant’s substandard act or omission. Where the injury may be due to factors unconnected to the defendant’s negligent conduct, the defendant should not be held liable for the injury.[^59]
[100] A plaintiff may fail to establish liability in negligence even if they establish that the physician breached the standard of care and that the breach factually caused their injury. The plaintiff must also prove that her injury was caused in law, that is, was not too remote from the defendant’s breach. As the Supreme Court stated in Saadati v. Moorhead, “even where a duty of care, a breach, damage and factual causation are established, there remains the pertinent threshold question of legal causation, or remoteness”.[^60] An injury that is factually caused by negligent conduct is too remote to be compensable if the injury was not a reasonably foreseeable consequence of that conduct. The Supreme Court has also stated that “[s]ince The Wagon Mound (No. 1), the principle has been that ‘it is the foresight of the reasonable man which alone can determine responsibility’”.[^61]
[101] The underlying rationale for this test of remoteness is that “the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.”[^62]
Subjective Test Component of Informed Consent
[102] The subjective component of the test is based on what the particular patient would have agreed to if the risks were known. It will necessarily vary from patient to patient and take into account factors unique to the individual.[^63] Courts have been clear that the subjective test cannot be relied upon alone because it relies on hindsight reasoning.[^64] A patient could be inclined to say that she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action were known. A subjective test would put more of a premium on hindsight than the premium put on medical evidence by an objective test.[^65]
[103] To meet the subjective test, the plaintiff must establish that the material risks or treatment alternatives (medications) were not adequately disclosed, and that had they been disclosed, consent would not have been given.[^66] Ms. McLean has not established that the material risks or medication alternatives were not adequately disclosed. She had a history taking medication with risks (Diane, Acutane and Prednisone).
[104] Regarding the test’s subjective component, Ms. McLean did not directly testify that she would have refused Yaz if she had been advised of the risk. She testified that she would have “asked more questions” and would have chosen “the healthier option” if presented with alternatives. This is not sufficient to find that she would have refused to take Yaz if properly advised of the risk. She also admitted that if she had read the updated product monograph for Yaz, which included the brief additional information about potential increased risk of blood clots, she still would have taken Yaz.
Modified Objective Test Component
[105] As a result of the concern outlined above, the plaintiff must also satisfy the modified objective component of the test on a balance of probabilities. The modified objective test is based on what a reasonable person in the plaintiff’s position would have done.[^67] Put differently, this modified objective test requires the trial judge to determine whether the reasonable person in the plaintiff’s circumstances, if adequately informed of the attendant risks, would have proceeded with the procedure (medication).[^68]
[106] The Supreme Court of Canada has stated that the test relies on a combination of objective and subjective factors to determine whether the failure to disclose actually caused the harm complained of by the plaintiff. It requires the court to consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any “particular concerns” of the patient and any “special considerations affecting the particular patient” in determining whether the patient would have refused treatment if given all the information about the possible risks.[^69]
[107] I agree that the modified objective test for causation is a very important aspect of this case. Even if Dr. Valadka did not advise Ms. McLean of the increased relative risk associated with Yaz (and I find he did so but not with numbers/statistics or percentages), on a balance of probabilities, Ms. McLean, or a reasonable person in her shoes, would have taken the Yaz regardless.
[108] I agree that a reasonable person in Ms. McLean’s shoes would have taken the Yaz. This is a person with no risk factors for the BCP, and who had been on three different types of the BCP for over a decade without any issue. This is a person who believed that the BCP was an effective way to treat acne, who was open to trying different BCPs, particularly if they were also to be effective for treating acne, and who understood that the BCP also had the benefit of providing contraception. This is a person who considered the cost of the BCP; had switched types of BCP in the past due to financial considerations; who appreciated free samples of medication given her financial situation; and who had accepted only samples of medication rather than prescriptions before the May 21, 2013 appointment. This is also a person who accepted her doctors’ recommendations for medication and had taken other medications that carried the risk of serious side effects (the Diane, the Accutane and the Prednisone). A reasonable person in Ms. McLean’s shoes would have taken Yaz. Ms. McLean has not established causation.
THE EXPERT EVIDENCE
[109] Ms. McLean called expert evidence on the standard of care from Dr. Geoffrey Morris (“Dr. Morris”), a family physician, and Dr. Bryan Young (“Dr. Young”), a neurologist, on causation. She also called Elyse Shumway (“Ms. Shumway”), speech language pathologist (“SLP”), to testify about damages. Dr. Valadka called expert evidence on the standard of care from Dr. Howard Rudner (“Dr. Rudner”), a family physician, and Dr. Daniel Selchen (“Dr. Selchen”), a neurologist, on causation.
[110] Ms. McLean put forward an economic loss opinion from Dr. Eli Katz (“Dr. Katz”). Dr. Valadka put forward an economic loss opinion from Errol Soriano (“Mr. Soriano”). Obviously their opinions were based on assumptions provided to them. As set out below, I do not find that Ms. McLean cannot work full-time. I accept that there was a period of time that she could not work, and then only work part-time until she fully recovered.
[111] Expert evidence is necessary to assist the trier of fact in determining whether a physician breached the applicable standard of care. Due to the specialized knowledge of the medical profession, courts are not to make conclusions regarding a breach of the standard of care (or causation) without supportive expert evidence. Where there are conflicting expert opinions, the court must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.[^70]
[112] The role of an expert is to provide fair, objective and non-partisan assistance to the court.The independence and impartiality of an expert may be considered at the gatekeeper stage as a question of admissibility, and as a matter of weight once admitted.[^71]
[113] In weighing and assessing expert evidence, the court should consider the following factors:
(i) The relevance of the training, experience and specialty of the witness to the medical issues before the court;
(ii) Any reason for the witness to be less than impartial;
(iii) Whether the testimony appears credible and persuasive, compared and contrasted with the other expert testimony at the trial.[^72]
AGREEMENT BETWEEN THE EXPERTS
[114] The experts agree on the following points:
(i) Yaz was not contraindicated for Ms. McLean as of May 21, 2013 (and neither were the other BCPs Dr. Valadka provided to her over the years, including Alesse and Diane). Ms. McLean had no risk factors for blood clots or stroke. Ms. McLean’s migraines without aura were a non-factor.
(ii) Yaz is indicated for both contraceptive purposes and for acne.
(iii) It is common practice for physicians to provide samples of medication to patients where possible (particularly to those with financial difficulties).
(iv) All BCPs carry a risk of blood clot and stroke, but the absolute risk of a blood clot and stroke is small, even with Yaz. The risk of a blood clot is higher with pregnancy and childbirth than with the BCP.
(v) The amount of estrogen is one of the factors that determines the risk of a blood clot associated with a particular BCP. Diane has a higher estrogen dose than Yaz and Alesse, which have identical estrogen doses and are considered low‑estrogen-dose BCPs.
(vi) There is a difference between a blood clot and stroke. Blood clots do not always result in stroke. The Health Canada Information Update only mentions the risk of blood clots, not stroke. The word “stroke” does not appear anywhere in the Health Canada Information Update. The risk of stroke from any BCP, including Yaz, is very small. Venous and arterial events are also different phenomena; a stroke is most commonly an arterial event.
(vii) There were no product recalls for Yaz after the Health Canada Information Update was released, and Yaz remains on the market in Canada today.
THE STANDARD OF CARE EXPERTS
[115] Ms. McLean called Dr. Morris, who has 40 years of clinical family experience, which began in 1982 in the rural community of Ste. Rose Du Lac, Manitoba. In 1983, Dr. Morris moved his practice to Ontario, where he continues to practice today.
[116] Dr. Valadka called Dr. Rudner, who is on active staff at North York General Hospital in Toronto and is an Assistant Professor in the Department of Family and Community Medicine at the University of Toronto. He has acted as a Peer Assessor, Practice Monitor and Examiner for the College of Physicians and Surgeons of Ontario (CPSO) and has been a member of the Quality Assurance Committee, Complaints Committee and the Board of Inquiry of the CPSO.
[117] Where the standard of care experts differ in their opinion, I find that Dr. Rudner’s opinion is preferred. The following factors support my findings in this regard.
[118] Dr. Morris did not have any medical records from the first ten years that Dr. Valadka treated Ms. McLean when he authored his three reports criticizing Dr. Valadka. Dr. Morris knew that the treating relationship between Dr. Valadka and Ms. McLean began in 2003, but he only had records from May 2013 onwards. He did not request the missing records. I agree that this was inconsistent with the CPSO and the CMPA’s guidance on the preparation of third-party medical reports. Despite missing ten years of the chart, he commented on various aspects of Dr. Valadka’s practice from that period, including his management of Ms. McLean’s acne. While Dr. Morris reviewed the discovery transcripts, he agreed that he typically looks at the underlying contemporaneous medical documents because they may differ. I accept the submission that Dr. Valadka was not taken to every page of his chart during his discovery, and therefore, his discovery transcript did not reflect the full content of the ten years of information that Dr. Morris did not review.
[119] Dr. Morris also testified that it is possible that he did not re-review the records he did have prior to writing his second and third reports, even though these reports were authored five to six years after his first report.
[120] On the other hand, Dr. Rudner had access to Dr. Valadka’s entire chart when he prepared his report, which included his detailed chronology of the care provided to Ms. McLean.
[121] Drs. Morris and Rudner provided opinion evidence on the applicable standard of care and, in particular, on whether Dr. Valadka obtained Ms. McLean’s informed consent with respect to Yaz; whether Dr. Valadka adequately disclosed the risks of Yaz to Ms. McLean; and whether Dr. Valadka was required to offer Ms. McLean alternatives to treat her acne at the May 21, 2013 appointment:
(i) Disclosure of Risks: Drs. Morris and Rudner agree that Dr. Valadka was required to disclose the increased relative risk of Yaz to Ms. McLean on May 21, 2013. Dr. Valadka and Ms. McLean differ on their evidence of what was discussed during the appointment. Ms. McLean testified that Dr. Valadka did not disclose the increased relative risk. Dr. Valadka testified that he did but likely did not disclose the statistics. Dr. Valadka has no note or specific memory of the appointment. He relies on his standard practice. I have already found that Dr. Valadka disclosed the increased relative risk but did not provide statistics. (I rely on the law that confirms that statistics are not required to be disclosed in all cases, including this one.)
[122] In Reibl v. Hughes[^73], the Supreme Court of Canada noted that “generally, the failure to mention statistics should not affect the duty to inform nor be a factor in deciding whether the duty has been breached.
(ii) Alternative Treatments: Drs. Morris and Rudner agree that clinical judgment plays a significant role when it comes to a physician deciding what treatment options to offer to a patient. While Dr. Morris opines that Dr. Valadka was required to offer alternative treatments for the management of acne (other than the BCP), he does not specify any particular treatments that should have been offered. As a result, his opinion is not particularly helpful. Dr. Rudner’s opinion is that Dr. Valadka was not required to offer alternative treatments because Ms. McLean had tried other products in the past that did not work, and the BCP had always been effective at managing her acne. Dr. Rudner’s opinion makes more sense.
[123] More importantly, neither standard of care expert testified that specific numbers or statistical probabilities needed to be disclosed in order to meet the standard of care.
[124] I find that Dr. Valadka obtained Ms. McLean’s informed consent with respect to the use of Yaz; that he adequately disclosed the risks of Yaz; and that he was not required to offer alternative treatments for her acne.
THE CAUSATION EXPERTS
[125] Ms. McLean tendered opinion evidence from a neurologist, Dr. Young. Dr. Valadka tendered opinion evidence from Dr. Selchen, a neurologist and stroke expert.
[126] Dr. Young became a fellow of the Royal College of Physicians and Surgeons with a specialty in neurology in 1977. He was a professor in the Department of Clinical Neurological Sciences, Neurology at the University of Western Ontario in London from 1996‑2013. While in London, Dr. Young held privileges at University Hospital and Victoria Hospital. His inpatient practice largely focused on the intensive care unit dealing with patients with critical or life‑threatening illnesses.
[127] Dr. Young served on the stroke team in London and was involved in the diagnosis and treatment of stroke. As a member of the stroke team, Dr. Young practiced at the stroke prevention clinic, where patients were referred following a stroke or suspected stroke. There, his role was to determine the likely cause of stroke and to decide on optimal treatment. Following 2013, Dr. Young moved his practice to Owen Sound at Grey Bruce Health Services, where he is involved in the care of 1 to 5 stroke patients per day. Dr. Young sees these patients in the hyperacute phase, where a full workup is conducted to determine if the patient is a candidate for emergency stroke treatment.
[128] Dr. Young confirmed that stroke is not his primary area of expertise, and that he does not research or publish in this area.
[129] Dr. Selchen is a neurologist and stroke expert practicing at St. Michael’s Hospital. He was a member of the Board of Directors of the Canadian Stroke Consortium from 1999 to 2019; the Director of the Stroke Team at Trillium Health Centre from 1999 to 2008; Medical Director of the GTA Regional Stroke Centre from 2001 to 2008; a member of the Ministry of Health Stroke Evaluation Committee from 2004 to 2006; and a Director of the South East Toronto Regional Stroke Centre from 2008 to 2020. He has an academic focus in acute stroke management, including interventional treatment.
[130] The main area of dispute between the two neurologists is whether there is a reasonable and probable mechanism by which Yaz could have caused Ms. McLean’s stroke. Dr. Young initially relied solely on the alleged temporal connection between Ms. McLean taking Yaz and the stroke without providing any analysis on a probable mechanism. In response to Dr. Selchen’s first report, Dr. Young then advanced the Patent Foramen Ovale (an anatomic abnormality in the heart) theory, (“PFO Theory”), which, I agree, is inconsistent with the results of comprehensive investigations that Ms. McLean has undergone (at Hamilton Health Sciences and Toronto Western Hospital). In contrast, Dr. Selchen relied on the imaging of Ms. McLean’s brain completed after the stroke, as well as the results of other testing, and concluded that this was inconsistent with a BCP-induced stroke.
[131] Ms. McLean has not met her burden of demonstrating on a balance of probabilities that her stroke was caused by Yaz. After extensive testing, the team of physicians at Hamilton Health Sciences, where she was admitted after the stroke, concluded that it was a “cryptogenic” stroke (a stroke of unknown cause). Even after a comprehensive stroke workup at Toronto Western Hospital’s stroke clinic in 2018-2019, the cause of her stroke was still not identified. The causation experts agree that cryptogenic stroke is a common diagnosis when a young person has a stroke.
[132] Dr. Selchen testified that the pattern of injury (or infarction) on Ms. McLean’s magnetic resonance imaging (“MRI”) after the stroke is not consistent with a BCP-induced stroke. Just days before trial, Dr. Young changed his opinion on the location of the second area of injury in Ms. McLean’s brain. In cross‑examination, he admitted that he had incorrectly identified the second area of injury in the PowerPoint presentation of MRI images he had prepared as an aide memoire for use at trial.
[133] Dr. Selchen testified regarding why Dr. Young’s PFO Theory does not fit with the testing that was performed after the stroke and during the comprehensive stroke workup done several years later. Dr. Young did not even acknowledge the subsequent comprehensive stroke workup in his reports.
[134] Dr. Selchen testified that Dr. Young did not identify any mechanism that would explain how Yaz caused Ms. McLean’s stroke, such that it even approached the balance of probabilities threshold.
[135] I agree that Dr. Selchen’s evidence should be preferred for multiple reasons:
(ii) Dr. Young’s primary area of expertise is not in stroke; whereas, it is Dr. Selchen’s primary area of expertise;
(iii) Dr. Young’s interpretation of Ms. McLean’s MRI imaging was demonstrably inaccurate. He agreed at trial that he had misread the imaging when trying to pinpoint the location of the second area of injury. On the other hand, Dr. Selchen correctly interpreted the imaging when formulating his opinion.
(iv) Dr. Young did not consider key medical records and test results when formulating his opinion, including results that were directly at odds with his theory that the mechanism for Ms. McLean’s stroke was a PFO.
(v) I agree that Dr. Young weighed in on the parties’ credibility and therefore exceeded his scope as an expert, which casts doubt on his independence. In his second report, dated November 26, 2020, he noted that the parties differed in their recollections of whether the increased risks of Yaz were discussed, and then went on to conclude that Ms. McLean was not warned of the increased risk of stroke/blood clot and was not told to seek help if she had stroke symptoms.
(vi) It was not Dr. Young’s role to weigh in on what is a central and contentious issue (a finding of credibility). The Court of Appeal for Ontario overturned a trial decision on this basis alone. The central issue in that case was whether two physicians had relayed certain advice to an individual, and, as a result, the credibility and reliability of those witnesses’ evidence was an important issue. In that case, one expert admitted in cross-examination that “he did not think that [a witness’s] memory was accurate, and that he had put more weight on [the other witness’s] evidence because he had some notes”. The Court of Appeal in that case emphasized that “the expression of an opinion as to the credibility of witnesses is also a breach of the expert’s duty to be independent”.[^74]
(vii) Dr. Young was retained to comment on causation, not standard of care and the substance of the informed consent discussion. In cross-examination, he acknowledged that he should not weigh in on the factual dispute between the parties. Ultimately it is the trier of fact’s job to determine whose evidence is more reliable and credible. I agree that his willingness to weigh in on the credibility of the parties on such a key factual issue should be considered when evaluating whether he is truly an independent expert and when comparing his testimony to Dr. Selchen’s.
[136] I prefer and accept Dr. Selchen’s evidence, particularly that Dr. Young’s PFO Theory does not fit with the testing that was performed after the stroke and during the comprehensive stroke work up done several years later. Ms. McLean has failed to meet her causation burden and did not prove that Yaz caused her stroke. This was a cryptogenic stroke, and even after her extensive stroke work up, the cause of the stroke was not known.
Damages
[137] Damages are also a live issue in this trial.
[138] The plaintiff claims general damages of up to $500,000, and pecuniary damages in the total amount of:
(ii) $1,001,220-$1,056,469 for past and future income loss;
(iii) Up to $1,016,224 for an alleged “loss of an interdependent relationship”, including both income and household services she would have allegedly received from her notional spouse; and
(iv) $98,962 in future care costs, consisting of Speech-Language Pathology (“SLP”) services for the rest of her life, paid speech-to-text software and an iPad, both of which would be replaced every three years.
[139] Dr. Valadka’s position is that general damages in the range of $50,000-$100,000 are appropriate and that the pecuniary losses are as follows:
(ii) $17,400-$111,400 for past income loss, depending on when this court finds Ms. McLean was capable of returning to full-time work;
(iii) $0 for future income loss, on the basis that there is no reliable evidence, including no evidence from a physician, that Ms. McLean was unable to work full-time after the stroke.
[140] Conclusion on damages (expanded on below).
(i) Because I must assess damages despite my liability findings, I assess her general damages at $75,000. I assess her past loss of income at $75,000 in view of my finding that she was capable of some work after some period of recuperation, gradually working up to full-time. Both of those claims have pre‑judgment interest. I assess her future loss of income at $0 because there is no evidence, apart from her self-assertion, that she cannot work full-time;
(ii) $0 for a loss of an interdependent relationship, on the basis that Ms. McLean has entered into numerous relationships after her stroke and the longest relationship was for 6 months. This kind of award only occurs in cases involving severe disabilities far beyond those experienced by Ms. McLean and this loss is inherently speculative;
(iii) $25,000 for future care costs, on the basis that it is speculative to say that Ms. McLean will require SLP services from year three to the end of her life, and the speech-to-text software Ms. McLean claims is available for free on a smartphone (and as such, an iPad is not required). I accept that she may have some future care costs;
(iv) The plaintiff also claims for out-of-pocket expenses in the amount of $6,887.41, which consist of schooling and training fees. I take no issue with that claim together with pre‑judgment interest;
(v) The parties have reached an agreement on the quantum of Ms. McLean’s Ontario Health Insurance Plan (“OHIP”) subrogated claim in the amount of $27,871.08, plus pre-judgment interest. I take no issue with that agreement.
General Damages
[141] When reviewing the evidence for the general damages inquiry, the focus should be on recent assessments of Ms. McLean rather than assessments completed in the immediate post-stroke period, which is nearly a decade ago. The ODSP application, Dr. Valadka’s notes from the post‑stroke period and the speech language pathologist report from February of 2014, are too dated to speak to Ms. McLean’s current status, or even her status in the last few years. Ms. McLean has also acknowledged that her condition has improved.
[142] Ms. McLean has also had several other accidents since the stroke, including: major blunt trauma to her left side from a biking accident in June of 2016; incidents in August of 2018 and September of 2022 during acro-yoga, in which she experienced whiplash and a leg compression, respectively; a cycling accident in 2020 where she fell on her left shoulder; and a workplace injury in January of 2021 to the right side of her body, for which she sought and was granted Workplace Safety and Insurance Board benefits. None of these incidents, nor the corresponding injuries, are related to the stroke but clearly would have had an effect on her in terms of pain and incapacity.
[143] Ms. McLean complains of left-sided pain associated with a left-sided thoracic outlet syndrome. The medical experts agree that Ms. McLean’s ongoing pain in that area is unrelated to her stroke. Ms. McLean’s counsel acknowledged in her opening submissions that Ms. McLean is not claiming damages for any pain. I agree that as a result, Ms. McLean is not awarded any damages related to her pain.
[144] Dr. Selchen testified that Ms. McLean’s thoracic outlet syndrome is absolutely not related to her stroke. Further, he testified that there is no conceivable explanation as to how a left-sided stroke could cause left-sided pain. If there is a left-sided stroke, the right side of the body is normally impacted. Basically Dr. Young agreed with this position in this regard.
[145] Although Ms. McLean claimed for a loss of fine motor skills in her amended statement of claim, the expert evidence does not support this. It is also inconsistent with Ms. McLean’s undisputed ability to paint, draw, play and learn new musical instruments, ride a bike and do intricate beadwork. She is clearly talented in those activities.
[146] Most importantly, Ms. McLean did not call any evidence from a physician or neuropsychologist to substantiate or comment on the extent of her stroke-related deficits. She did not call her family doctor nor any of the many physicians she has seen since the stroke.
[147] Observing her testify, I noted some mild occasional word finding difficulty which she was able to correct. She was clearly able to communicate in an effective manner.
[148] No neuropsychologist has assessed or provided an opinion on Ms. McLean’s damages despite her allegation that she suffers cognitive deficits as a result of her stroke. Dr. Selchen explained the important role that neuropsychologists play in assessing these types of deficits. He testified that: “Well, if the allegation is that there are cognitive deficits, the people who are competent to really thoroughly examine cognitive deficits are neuropsychologists, not speech pathologists.”
[149] Ms. McLean called two friends to testify as fact witnesses. Frankly, their evidence was not particularly helpful. Both friends’ testimony regarding Ms. McLean’s injuries was primarily focused on her condition in the immediate post-stroke period. They do not see her often. (Ms. Starr lives in Halifax for part of the year and, since COVID, only connects with Ms. McLean by phone or Facebook. Ms. Hiemstra only sees Ms. McLean a couple of times every few months. Both of her friends agreed that Ms. McLean’s communication has improved since the stroke and that they are able to maintain friendships with her.
[150] I accept that Ms. McLean had a period of time where she had to recover from the stroke and I assess her general damages at $75,000.
Future Care Costs
[151] The only expert Ms. McLean called regarding the extent of her alleged deficits and Ms. McLean’s future needs, was Ms. Shumway. Ms. McLean also attempted to adduce late‑breaking opinion evidence regarding her future care needs through her neurology expert, Dr. Young, in his report dated February 3, 2023. I agree that Dr. Young’s opinion on this issue should be afforded no weight, as he did not assess Ms. McLean and he based his opinion purely on the reports of Ms. Shumway.
[152] Ms. Shumway operates a private practice. All of Ms. Shumway’s assessments of Ms. McLean took place virtually, in the same environment. In cross-examination, Ms. Shumway agreed that she did not observe Ms. McLean in the workplace or conversing with any other conversational partners, nor did she obtain any collaterals from anyone regarding Ms. McLean. Ms. Shumway further agreed that she had not read Ms. McLean’s discovery transcript, had not observed Ms. McLean testifying at trial, and had not read the transcript of Ms. McLean’s trial evidence. As a result, Ms. Shumway reviewed no sworn testimony from Ms. McLean. These are clearly problems with Ms. Shumway’s evidence, further detailed below.
[153] Ms. Shumway opined that Ms. McLean has a mild fluent aphasia, a moderate working memory and auditory deficits. She recommended SLP sessions, an iPad and speech-to-text software to address these issues. Ms. Shumway did not testify that Ms. McLean is unable to work full-time.
[154] I agree that there are serious issues with Ms. Shumway’s opinion, including the following:
(i) she did not observe Ms. McLean in any environment other than on Zoom, although she acknowledged that observing her in other environments would have been helpful in making recommendations. She was missing key records, including the Hamilton Health Sciences records (which extensively investigated the cause of the stroke, finding no cause), and all of Ms. McLean’s employment and educational records;
(ii) she had incorrectly paraphrased certain medical records and left out positive statements about Ms. McLean’s speech and cognition from the medical records;
(iii) she did not report the actual scores of Ms. McLean’s standardized tests in her reports despite most tests having a numerical component to the result;
(iv) she did not repeat several tests during her re-assessment of Ms. McLean in December of 2022, including the Test of Information Processing Skills (“TIPS”), which specifically tests for working memory, and other tests that test reading and writing; and
(v) she authored an accommodation letter for Ms. McLean in July of 2021, outside of her role as an expert. In cross-examination, she confirmed the importance of being an independent expert and agreed that she is not Ms. McLean’s treating SLP. She agreed that the accommodation letter is the type of letter she would prepare for one of her private clients. It is clear Ms. Shumway was advocating for Ms. McLean by authoring the accommodation letter, which is inappropriate given her role as a Rule 53 expert. Ms. Shumway acknowledged that Ms. McLean used this letter to advocate for herself, and that she knew Ms. McLean would use the letter for this purpose.
[155] Ms. Shumway acknowledged that Ms. McLean’s symptoms of pain (related to her thoracic outlet syndrome and unrelated to the stroke) have an impact on her overall cognitive condition.
[156] Ms. Shumway relied on Ms. McLean’s thoracic outlet syndrome and pain symptoms when formulating her opinion, stating that it is “well-known that pain does have an impact on cognition, that it “creates a cognitive load in order to manage the pain” and “decreases the overall cognitive capacity.” Ms. Shumway testified that she cannot tease out to what extent Ms. McLean’s alleged difficulties are due to her aphasia versus her pain. As such, to the extent Ms. McLean’s ability to work is impacted by her pain or thoracic outlet syndrome, this has impacted Ms. Shumway’s assessment. Ms. McLean is not claiming for pain in this action, and I agree she should not be awarded any amount for damages that are not directly related to the stroke.
[157] Ms. Shumway has opined that Ms. McLean requires SLP sessions until the end of her life. However, in her testimony, Ms. Shumway acknowledged that her recommendations for SLP sessions from year three and onward are on an “as-needed basis” depending on Ms. McLean’s circumstances at a time. I agree that it is questionable whether these sessions will even be required. Ms. Shumway also acknowledged that Ms. McLean’s condition improved between her two assessments despite Ms. McLean not participating in any SLP sessions during that time.
[158] Further, Ms. Shumway acknowledged that there are free speech-to-text applications available online that can be used on a smartphone (i.e., not requiring an iPad).
[159] Dr. Young attempted to testify about Ms. McLean’s future care needs. I agree that his opinion on this issue should be accorded no weight. His future care opinion only showed up in one paragraph in his fourth report, many years after he was initially retained to comment on causation.
[160] Dr. Young agreed that he never personally assessed Ms. McLean nor conducted any testing or physical examinations of her or evaluated her language abilities. Dr. Young agreed that the basis of his future care opinion stemmed from Ms. Shumway’s reports. When he stated that Ms. McLean’s deficits are “not minimal”, that was purely based on his interpretation of Ms. Shumway’s reports rather than any assessment of his own. The CMPA Guidelines on third‑party reports specifically provide that experts are to “[a]void borrowing, restating the words of others”. Dr. Young agreed he understood that this is something he should avoid doing.
[161] Dr. Young also failed to consider key information when rendering his opinion. He agreed that after the stroke he had not noted that Ms. McLean graduated from George Brown on time and at the top of her class, and that he had not taken this into account when formulating his future care opinion. He also agreed that he did not have any of Ms. McLean’s employment files, any real information about the tasks she was performing or whether she was doing well or not, or any of her income information. He agreed that he had seen that more than one physician in the medical records had documented that Ms. McLean’s language was improving, but that he did not make any note of this in his report.
[162] Dr. Young also testified that he typically sees patients in the immediate stroke period when he focuses on the acute or hyper-acute phase when the clinical team is trying to stabilize a patient. He only rarely sees patients 10 years after a stroke.
[163] Dr. Selchen did not provide a future care or damages opinion beyond opining on which of Ms. McLean’s damages were actually caused by her stroke. Dr. Selchen did not examine Ms. McLean and stated that it is unethical to comment on a patient’s deficits without performing an examination. His interpretation from the medical records that Ms. McLean has “minimal deficits” is based entirely on the medical records cited in his report. He testified that the neurology notes from Drs. Birnbaum and Pikula suggested that Ms. McLean’s deficits are minimal from a neurological perspective.
[164] Despite this, I find she may have some future care costs and award $25,000.
Loss of an Interdependent Relationship
[165] There is no basis for awarding damages for the loss of an interdependent relationship.
[166] This type of claim is extremely rare, and damages are only awarded in the most extreme circumstances – typically where the plaintiff has suffered very serious cognitive deficits and/or significant disfigurement, neither of which applies to Ms. McLean. It is clear that she has moved on with her personal life since the stroke. Frankly, she was a likeable and lively witness.
[167] Ms. McLean is claiming up to $1,000,000 for an alleged loss of an interdependent relationship. This is despite her concessions in cross‑examination that she had dated and had several romantic and sexual partners after her stroke (likely six). Additionally, she graduated college at the top of her class, lives an active lifestyle teaching yoga and aquatics, plays instruments and partakes in social activities with her friends. The evidence clearly does not support her allegation that she is unable to enter into a relationship as a result of her stroke.
[168] Canadian courts have only awarded damages for the loss of an interdependent relationship where a plaintiff can show a real and substantial possibility that their ability to enter into a permanent relationship has been impaired.[^75] This test has been established primarily where: (1) the injuries are “catastrophic and more serious”[^76]; and (2) the plaintiff has put forward expert evidence from relevant fields of social sciences, beyond the testimony of family and friends, to support the suggestion that their ability to enter into a relationship has been impaired.[^77] This did not happen.
[169] Dr. Katz is an economist. He however opined on this issue. He is not a sociologist or medical doctor. As a result, he is not in a position to assess which of Ms. McLean’s physical or other issues have an impact on her ability to enter into a relationship. He acknowledged that the extent of disability plays a role when determining whether marriage is likely in the future, and that he is not in a position to assess the extent of Ms. McLean’s disability. He also agreed that the fact that she is employed is one factor that should be considered when assessing her probability of getting married.
[170] Courts have generally awarded damages in cases where the plaintiff was rendered permanently and severely injured and disfigured,[^78] or the plaintiff suffered severe cognitive, physical and personality defects.[^79] The courts have declined to award damages for a loss of interdependent relationship in cases where the plaintiff suffered a mild traumatic brain injury negatively impacting their employment prospects, suffered chronic pain and/or chronic anxiety and depression, and was rendered sterile with early onset menopause.[^80]
[171] In summary, loss of interdependent relationship claims are rare and reserved for only the most of extreme cases. Ms. McLean falls far short of meeting this standard.
[172] Dr. Katz’s loss of interdependent relationship opinion is based on the assumption that Ms. McLean is unable to enter into a relationship due to her stroke. Not only is the assumption underlying Mr. Katz’s opinion not borne out in the evidence and inconsistent with the jurisprudence, but per Mr. Soriano, Mr. Katz’s estimation of Ms. McLean’s losses in this regard are entirely speculative and based on “assumption, after assumption”.
[173] I accept Mr. Soriano’s opinion that there are several shortcomings to Dr. Katz’s estimation of this loss, including:
(i) Dr. Katz has relied on statistics about the rate of marriage. However, he did not measure the likelihood of marriage for someone who is 35 years old (i.e., the likelihood of someone in Ms. McLean’s position getting married at age 35);
(ii) If someone is able to return to work, that would be a factor to consider in assessing that individual’s ability to marry. Dr. Katz agreed to this in his cross-examination. Dr. Katz relied on general statistics for disability, pointing out that individuals that are disabled have a lower propensity to get married. However, he did not differentiate between the average (which includes people with congenital birth defects, quadriplegics, etc.) and Ms. McLean’s situation wherein she has sustained a very good recovery.
(iii) The cross-dependency approach to calculating loss of interdependent relationship economic losses is the appropriate approach here – not the modified sole dependency approach employed by Dr. Katz. The cross-dependency method, unlike the modified sole-dependency method, is based on the notion that a marriage is a partnership, and the spouses are sharing in a partnership. In the cross-dependency approach, Ms. McLean and her notional husband have a pool of money available. Studies have shown that in that scenario, 72% of the family expenditures are for either Ms. McLean or the notional husband (i.e., they are joint expenses). The amount Ms. McLean has available to her not being married would be deducted to calculate the total losses. In contrast, with the modified sole-dependency approach, Ms. McLean’s earnings are not considered at all. In a recent medical malpractice case, this court applied the cross-dependency approach despite Dr. Katz’s testimony supporting the modified sole-dependency approach.[^81]
(iv) Dr. Katz provides no support for his view that Ms. McLean marrying 2.5 years after the incident is “conservative.” Mr. Soriano confirmed that this is a random number and there is no reliable statistical way to reach this assumption.
(v) In doing his calculations (on which I do not accept his premise), Dr. Katz assumes that Ms. McLean’s notional husband would be a college graduate and would retire at age 70 not 65.
(vi) Dr. Katz has assumed that there are no expenditures associated with children in the marriage. This is despite Ms. McLean’s testimony that she was interested in having children. Children are a significant economic factor that should be accounted for in the analysis – family consumption by children is significant, and non-discretionary. Per the statistics, one child consumes 25%, two consume 40%, and three consume 50% of a family’s after-tax income which are significant amounts.
(vii) Dr. Katz has not taken into account the potential costs associated with a divorce, or potential financial contributions the notional husband may owe to a prior spouse/children when entering the marriage.
(viii) Ms. McLean could still benefit from a platonic co-habitation relationship even if she does not marry.
[174] As stated above, this type of claim is extremely rare, and damages are only awarded in the most extreme circumstances – typically where the plaintiff has suffered very serious cognitive deficits and/or significant disfigurement, neither of which applies to Ms. McLean. That claim is assessed at $0.
The Claimed Economic Loss (Past and Future)
Past Loss
[175] I accept Mr. Soriano’s evidence on this issue.
[176] In terms of her past income loss, Mr. Soriano offered three different scenarios regarding when Ms. McLean could return to work to provide this Court with flexibility based on the factual findings it may make: Scenario A – 1 year after the stroke (summer of 2014); Scenario B – 2 years after the stroke (summer of 2015 – approximately when Ms. McLean started her program at George Brown College); and Scenario C – 5 years after the stroke (summer of 2018 – by which time Ms. McLean had already been working at Eatonville for over a year).
[177] Ms. McLean was able to return to school on a full-time basis starting in September of 2015 (i.e., a little over 2 years after the stroke and just a month after the starting point for Mr. Soriano’s Scenario B). In Mr. Soriano’s Scenario C, it is assumed that Ms. McLean could return to work full-time by August of 2018 (i.e., 5 years after the stroke). By that time, Ms. McLean had completed her schooling at George Brown, had secured her part-time job at Eatonville, and was running her own business and partaking in numerous extracurricular activities. In the Defence’s submission, and in accordance with the amounts estimated by Mr. Soriano for Scenarios B and C, somewhere between $40,800-$111,400 should be awarded for Ms. McLean’s past income loss.
[178] I award Ms. McLean $75,000 for her past income loss.
[179] The evidence is clear that Ms. McLean has made an excellent recovery from her stroke.
[180] Ms. McLean’s claim for her future income loss largely rests on whether it is found that she was unable to work full-time at some point after the stroke. I do not make that finding. No medical expert has opined that Ms. McLean was unable to work full-time after the stroke, (at least once she recovered from the acute symptoms). In none of the medical records produced has any physician stated that Ms. McLean requires a part-time work schedule. It is only Ms. McLean who submits that she cannot work full‑time.
[181] No medical expert and none of Ms. McLean’s treating physicians have opined that Ms. McLean is unable to work full-time (no treating physician even testified).
[182] Prior to her stroke, Ms. McLean held a contract position at the Gardiner Museum that was set to expire a few weeks after the stroke. No documentation has been produced to suggest that Ms. McLean would have been hired back but for the stroke, nor was any witness from the Gardiner Museum called to give evidence about this. All we have is Ms. McLean’s assertion that she was expecting to be offered a contract extension, an increase in her pay or a permanent position if it had not been for her stroke.
[183] After her stroke, Ms. McLean attended George Brown College for a two‑year program from 2015-2017, studying Activation Gerontology. She completed the program on time, was on the dean’s list each semester and graduated at the top of her class. She also held positions as an intern and lab technician on top of her full‑time courseload. She is to be commended for that as she is clearly a motivated individual. There is no documentation of accommodations offered or provided to Ms. McLean by George Brown College.
[184] Ms. McLean obtained certifications in yoga, massage therapy and aquatics after her stroke. In 2014, she started her own business and has some private yoga and aquatics clients.
[185] In June of 2017, Ms. McLean began working part-time as an Activity Aide at the Eatonville Care Centre (“Eatonville”) in her field of Activation Gerontology. Unlike her prior position at the Gardiner Museum, which was on a contract basis, Ms. McLean is part of a union at Eatonville, meaning that she has increased job security and benefits. Her hourly wage is roughly equivalent to her hourly wage at the Gardiner Museum. There is no reason to believe that she could not work at Eatonville full‑time. No evidence was provided. As stated above, Ms. McLean is a highly motivated individual.
[186] Ms. McLean’s accommodations at Eatonville related to her communication are minor. They include noise-cancelling headphones to manage background noises; an understanding amongst managers to be clear and give Ms. McLean time when giving instructions; written instructions via WhatsApp; the use of a stool to take short breaks; and allowing Ms. McLean to start her shift earlier to do her computer work during quiet hours. Clearly Eatonville is willing to make accommodations. Ms. McLean offered no evidence from Eatonville.
[187] Ms. McLean only requested an accommodation letter from Dr. Pikula regarding some minor workplace accommodations (i.e., allowing more time for her to process instructions) after she had received a written warning at work for an issue unrelated to any communication deficit. Ms. McLean had already been seeing Dr. Pikula for over a year at that point and did not ask for an accommodation letter before that;
[188] In October of 2022, Ms. McLean began working as a yoga instructor for the City of Toronto and was also hired as an aquatics instructor, although she has not yet apparently begun teaching aquatics.
[189] Ms. McLean’s testimony regarding why she only works part-time focused on her pain, the associated fatigue and her need to attend medical appointments. A claim for pain is not being made and there is absolutely no evidence that these appointments were or are related to her stroke. She testified that she works up to two hours a day more than her scheduled work hours to prepare materials for her job. No one was called to confirm this evidence.
[190] On top of her scheduled and additional work hours, Ms. McLean puts in to prepare for work, she also participates in various extracurricular activities, including: yoga, acro-yoga, stand‑up paddle boarding, pole dancing, music (she plays several instruments and has learned new instruments since her stroke), art (she draws and paints), choir and karaoke. She is clearly a very active individual.
[191] The economic loss experts agree that the basic difference between their economic loss estimates depends on Ms. McLean’s post-incident work capacity. In particular, the issue is whether Ms. McLean was able to work full-time after her stroke (after an initial recuperation period), because her pre-stroke average hourly wage is nearly identical to her post-stroke hourly wage. As a result, one can conclude that she has not sustained a decrease in pay as a result of the stroke.
[192] There is no basis in the record to conclude that Ms. McLean was unable to work full-time after the stroke, (once she recovered from the acute phase for which I have awarded $75,000 as her past income loss), save and except for Ms. McLean’s own assertions to this effect. She has tendered no expert opinion evidence stating that she cannot work full‑time as a result of the stroke, and none of her treating physicians have ever stated that she is unable to work full-time (she called none of them). I find that she has no loss of income claim other than the past loss of income following the stroke (the $75,000).
[193] Ms. McLean testified that she works 19-20 hours per week. On top of those 19-20 hours, for which she is paid, she spends “more than 2 hours a day” doing prep work for her job at Eatonville. In a given week, that is at least 10 hours of additional work, totaling approximately 30 hours of work a week. Ms. McLean also participates in numerous extracurricular activities.
[194] It is clear that Ms. McLean could have returned to her pre-incident working capacity post‑stroke (once the acute symptoms resolved) i.e. full‑time. She is not entitled to any money for a loss of future income as she has not proven any basis on which to make such an award. I have no helpful evidence on this point apart from Ms. McLean’s self‑assertion that she cannot work full‑time.
[195] The parties disagree on whether Ms. McLean’s social assistance benefits (including employment insurance (“EI”) and ODSP ought to be deducted from her past income loss claim. Social assistance benefits, including the EI and ODSP benefits Ms. McLean has received, are wage replacement benefits. The Supreme Court of Canada has confirmed that government social assistance should be deducted from a past income loss claim:
I conclude that nothing has been put forward to displace the common sense proposition that social assistance benefits are a form of wage replacement. It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this Court carves out a new exception. Otherwise, retention of them would amount to double recovery.[^82]
[196] The EI and ODSP benefits received by Ms. McLean should be deducted from her past income loss of $75,000.
CONCLUSION
[197] I find that Ms. McLean was provided with informed consent by Dr. Valadka, and that she has not established that the Yaz caused her stroke.
[198] Ms. McLean’s damages had she been successful are as follows:
• General damages - $75,000;
• Past loss of income - $75,000;
• Out-of-Pocket expenses - $6,887.41;
• Future loss of income - $0;
• OHIP’s subrogated claim - $27,871.08;
• Loss of interdependent relationship - $0;
• Future care costs - $25,000.
[199] The action is dismissed. If the parties cannot agree on costs, they can provide written submissions on a timeframe agreed by them. (Please let me know that timeframe).
J.E. Ferguson J.
Released: December 1, 2023
(i)
SCHEDULE “A”
Court File No.: CV-15-531502
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
VALERIE MCLEAN
Plaintiff
- and -
DR. MIKAS A. VALADKA, JOHN DOE, BAYER INC., BAYER A.G., BAYER SCHERING PHARMA A.G., BAYER CORPORATION, BAYER HEALTHCARE LLC., and BAYER HEALTHCARE PHARMACEUTICALS INC.
Defendants
Agreed Statement of facts
Liability Facts
Valerie McLean (“Valerie”) took the birth control pill (“BCP”) for the first time when she was a teenager.
The first BCP Valerie took was not prescribed by Dr. Valadka.
Valerie cannot remember the name of the first BCP that she took.
When Valerie first started taking BCP, she read the paper insert (product monograph) that came in the BCP package.
Valerie would look at the product monograph for any medication she had not tried before prior to starting to take that medication.
Valerie struggled with acne since she was a teenager.
Prior to becoming Dr. Valadka’s patient, Valerie tried oxy, cleaners, and Accutane to treat her acne.
Dr. Valadka became Valerie’s family physician in 2003.
Valerie had her first appointment with Dr. Valadka on May 28, 2003.
Valerie provided a detailed personal medical history to Dr. Valadka at her first appointment with him on May 28, 2003.
Valerie provided a detailed family medical history to Dr. Valadka at her first appointment with him on May 28, 2003.
As of May 28, 2003, Valerie had no known risk factors that would preclude her from taking BCP.
As of May 28, 2003, Valerie had never had a blood clot or a stroke.
As of May 28, 2003, Valerie had no known risk factors for blood clots or stroke.
As of May 28, 2003, Ms. McLean had no family history of blood clots or stroke.
During the time that Dr. Valadka was Valerie’s family doctor, she did not smoke.
During the time that Dr. Valadka was Valerie’s family doctor, she discussed her acne with him on numerous occasions.
Valerie began taking the BCP Alesse in June 2003.
On June 6, 2003, Dr. Valadka provided Valerie with 3 sample packs of Alesse BCPs (“Alesse”).
Valerie has never had migraine with aura.
On July 17, 2003, August 18, 2003 and September 22, 2003, Valerie was seen by Dr. Dimitrakoudis, a neurologist, regarding her migraines, following a referral made by Dr. Valadka.
Dr. Dimitrakoudis expressed no concern regarding Valerie’s use of BCP.
On February 1, 2006, Dr. Valadka provided Valerie with a prescription for Alesse.
On October 5, 2006, Dr. Valadka provided Valerie with a prescription for Alesse for 13 months.
On February 12, 2007, Dr. Valadka provided Valerie with a prescription for Alesse for 13 months.
From June 6, 2003 to February 14, 2008, Valerie did not take any other brand of BCP other than Alesse.
Valerie did not experience any issues with respect to her use of Alesse between June 6, 2003 and February 14, 2008.
On February 14, 2008, Dr. Valadka provided Valerie with five (5) sample packs of the Diane-35 BCP (“Diane-35”), which was the first time Dr. Valadka provided Valerie with Diane-35.
Valerie began taking Diane-35 in February 2008.
All estrogen-containing BCPs carry a risk of blood clots and stroke.
Diane-35 has a higher dose of estrogen than Yaz.
On July 30, 2009, Dr. Valadka provided Valerie with a prescription for Diane-35 for 13 months.
On September 13, 2010, Dr. Valadka provided Valerie with a prescription for Diane-35 for 13 months.
On February 21, 2012, Dr. Valadka switched Valerie from Diane-35 to Alesse due to period irregularity and because it was a pill that she was comfortable with and that had worked before.
On June 14, 2012, Dr. Valadka provided Valerie with more Alesse samples.
On July 4, 2012, Valerie advised Dr. Valadka that she was happy with her use of Alesse and was noticing benefits with respect to her acne.
On July 4, 2012, Dr. Valadka provided Valerie with six (6) sample packs of Alesse.
Valerie stopped taking Alesse in approximately January 2013.
Valerie had seen improvement in her acne when she was on BCP.
After Valerie stopped taking Alesse in approximately January 2013, her acne got worse.
During the time that Dr. Valadka was her family physician, Valerie discussed her financial difficulties with him.
Valerie appreciated it when Dr. Valadka gave her sample packs of BCP.
On May 21, 2013, Valerie attended an appointment with Dr. Valadka. Valerie advised Dr. Valadka her acne had worsened, and she had run out of Alesse.
On May 21, 2013, Dr. Valadka did not have any samples of Alesse.
Yaz is a brand of BCP which contains drospirenone and ethinyl estradiol.
On May 21, 2013, Yaz was not contraindicated for Valerie.
On December 5, 2011, Health Canada had released an alert cautioning that drospirenone-containing BCPs, such as Yaz, may be associated with a risk of blood clots that is 1.5-3 times higher than other BCPs (the “Health Canada Alert”), which is attached at Tab 1.
By May 21, 2013, Valerie had been on at least 2 different types of BCP.
By May 21, 2013, Valerie had not experienced any side effects associated with any of the BCPs she had taken.
As of May 21, 2013, Valerie had no known risk factors that would preclude her from taking BCP.
As of May 21, 2013, Valerie had never had a blood clot.
As of May 21, 2013, Valerie had never had a stroke.
As of May 21, 2013, Valerie had no known risk factors for blood clots or stroke.
As of May 21, 2013, Valerie had no family history of blood clots or stroke.
As of May 21, 2013, Valerie understood that taking any BCP comes with some risks.
As of May 21, 2013, Valerie understood that blood clots were one of the risks of BCP.
The Yaz product monograph attached at Tab 2 (the “2008 Yaz product monograph”) is the product monograph that was contained within the sample packs of Yaz provided to Valerie by Dr. Valadka on May 21, 2013.
Valerie reviewed the 2008 Yaz product monograph before she began to take the Yaz sample packs provided to her by Dr. Valadka on May 21, 2013.
The 2008 Yaz product monograph reviewed by Valerie specifically listed “blood clot in legs, lungs, heart, eyes or brain” as a risk associated with Yaz and stated that “Women who use hormonal contraceptives have a higher incidence of blood clots. Blood clots are the most common serious side effect of birth control pills…Clots can occur in many parts of the body…Any of these conditions can cause death or disability”. The 2008 Yaz product monograph however did not advise that Yaz may be associated with a higher risk of blood clots than other BCPs
On May 21, 2013, Dr. Valadka did not offer Valerie a referral to a dermatologist.
There is no written record documenting that Dr. Valadka offered Valerie a referral to a dermatologist on May 21, 2013.
There is no written record documenting that Dr. Valadka advised Valerie of alternative treatments of acne other than Yaz on May 21, 2013.
There is no written record documenting that Dr. Valadka advised Valerie of the increased risk of blood clots associated with Yaz on May 21, 2013.
There is no written record documenting that Dr. Valadka received Valerie’s informed consent prior to providing her with Yaz on May 21, 2013.
On July 6, 2013, Valerie suffered a stroke.
Valerie did not have a history of hypertension, diabetes, smoking, illicit drug use, hyperlipidemia or a family history for premature vascular disease.
A compression ultrasound of the deep veins of the lower extremity completed on July 10, 2013 showed no evidence of deep venous thrombosis.
In 2013, Dr. Valadka saw an average of forty (40) patients per day.
After her stroke, Valerie continued to see Dr. Valadka for over a year, until July 2014.
While she was Dr. Valadka’s patient and prior to her stroke on July 6, 2013, Valerie attended consultations with numerous other physicians as a result of referrals made by Dr. Valadka, including:
(a) A neurologist, Dr. Dimitrikoudis, in 2003 regarding her migraine headaches;
(b) An allergist, Dr. Jancelewicz, in 2003 and 2005 regarding her recurrent nasal congestion and cough;
(c) A plastic surgeon, Dr. Fielding, in 2004 regarding a growth on her sternum;
(d) An orthopedic surgeon, Dr. Kliman, in 2005 regarding complaints of left heel pain;
(e) A respirologist, Dr. Rodriguez, in 2005 regarding her recurrent cough, who also arranged for her to see an otolaryngologist, Dr. Gantous, in 2007;
(f) A respirologist, Dr. Balter, from 2011-2012 regarding recurrent cough, who also arranged for her to see another respirologist, Dr. Nair, in 2012;
(g) An immunologist, Dr. Ho, in 2012 regarding her recurrent nasal congestion and cough.
- Valerie was assessed by a stroke neurologist, Dr. Aleksandra Pikula in 2019.
Damages Facts
Ms. McLean’s ability to walk has not been impacted by the stroke.
Post-stroke, Ms. McLean is still able to ride a bike.
Post-stroke, Ms. McLean is still able to play musical instruments.
Post-stroke, Ms. McLean has learned how to play new musical instruments.
Post-stroke, Ms. McLean is still able to draw.
Post-stroke, Ms. McLean is still able to paint.
From July 18, 2011 until August 24, 2012, Valerie worked full-time on a contract basis at George R. Gardiner Museum of Ceramic Art (“Gardiner Museum”) as a membership associate.
On August 27, 2012, Valerie was re-hired at the Gardiner Museum on a one-year contract as a membership manager. Her contract was scheduled to end on August 23, 2013
At the time of her stroke in July 2013, Ms. McLean’s contract did not require the Gardiner Museum to extend her contract or to offer her another position.
Ms. McLean does not possess any documentation that suggests the Gardiner Museum would have extended her contract or offered her another position but for the stroke.
Ms. McLean never held a permanent position at the Gardiner Museum.
After her stroke in July 2013, Ms. McLean never reapplied to the Gardiner Museum.
After her stroke in July 2013, Ms. McLean never applied for any membership manager or other positions equivalent to her prior role at the Gardiner Museum.
In August 2014, Ms. McLean completed the Karma Teachers College 200 Hours of Yoga Alliance Requirements for Instructor Certification in Yoga.
Ms. McLean began teaching yoga in 2014.
Ms. McLean completed a diploma in Gerontology at George Brown College between 2015-2017 with accommodations.
When Ms. McLean graduated from George Brown College in 2017, she was on the Dean’s List.
From May 2014 to December 2016, Ms. McLean volunteered at the Christie Gardens Retirement Community where she designed and implemented a yoga program.
In the summer of 2016, Ms. McLean volunteered at the West Toronto Support Services Adult Day Program.
Since June 6, 2017, Ms. McLean has been employed part-time as an Activity Aide at Eatonville Care Centre.
As a result of the stroke, Valerie was deemed “a person with a disability” with in the meaning of the Ontario Disability Support Program Act (“ODSPA”), by the Ontario Support Disability Program (“ODSP”) Adjudication Unit as of October 8, 2013, such that she was entitled to ODSP benefits.
From October 8, 2013 to present, Valerie has continued to receive ODSP benefits.
In 2018, Ms. McLean completed a 108 hour Holistic Practitioner Training at Thai Massage Toronto.
In 2019, Ms. McLean completed a 20 hour Yoga Training for Seniors at Breathe Yoga, Toronto.
In the spring of 2022, Ms. McLean completed a certificate to teach aquatics.
Ms. McLean was in a cycling accident in 2016, where she fell on the left side of her body and hit her head.
The cycling accident in 2016 was unrelated to the stroke in July 2013.
Ms. McLean was in a cycling accident in 2020, where she fell on her left shoulder.
The cycling accident in 2020 was unrelated to the stroke in July 2013.
On January 21, 2021, Ms. McLean suffered a workplace injury to the right side of her body.
The workplace injury in January 2021 was unrelated to the stroke in July 2013.
Ms. McLean sought and was granted WSIB benefits as a result of her January 21, 2021 workplace injury.
At the time of her stroke in July 2013, Ms. McLean was not in a cohabiting relationship.
At the time of her stroke in July 2013, Ms. McLean had never been married.
COURT FILE NO.: CV-15-531502
DATE: 20231201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Valerie McLean
Plaintiff
Dr. Mikas A. Valadka, John Doe, Bayer Inc., Bayer A.G., Bayer Schering Pharma A.G., Bayer Corporation, Bayer Healthcare LLC and Bayer Healthcare Pharmaceuticals Inc.
Defendants
REASONS FOR DECISION
J.E. Ferguson J.
Released: December 1, 2023
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[^2]: Watson, ibid, at para. 24.
[^3]: St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53 ["St-Jean"]; Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, at para. 80 ["Felix"].
[^4]: Bogdon v. Folman, 2013 ONSC 222, at para. 35 ["Bogdon"], citing Bafaro v. Dowd, 2008 45000 (Ont. S.C.), at para. 31 ["Bafaro"], aff'd 2010 ONCA 188, 260 O.A.C. 70.
[^5]: Crawford v. Penny (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), at para. 245, aff'd (2004), 2004 22314 (ON CA), 26 C.C.L.T. (3d) 246 (Ont. C. A.) ["Crawford"].
[^6]: Crits, supra, at p. 508.
[^7]: Samms v. Moolla, 2019 ONCA 220, at para. 73 ["Samms"], citing Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, at p. 363 ["Lapointe"].
[^8]: Samms, ibid, at paras. 83, 92.
[^9]: MacGregor v. Potts, 2009 44720 (Ont. S.C.), at para. 128, aff'd 2012 ONCA 226, 289 O.A.C. 334 ["MacGregor"].
[^10]: Bafaro, supra, at para. 37, citing Lapointe, supra, at p. 362.
[^11]: Turkington v. Lai (2007), 2007 48993 (ON SC), 52 C.C.L.T. (3d) 254 (Ont. S.C.), at para. 38 ["Turkington"].
[^12]: Ball v. Amendola, 2009 55309 (Ont. S.C.), at para. 137 ["Ball"].
[^13]: Lapointe, supra, at pp. 362-63.
[^14]: Lapointe, ibid, at p. 361; ter Neuzen, supra, at para. 34; Crits, supra, at pp. 508-9.
[^15]: St-Jean, supra, at para. 53; Hillis v. Meineri, 2017 ONSC 2845, at para. 64 ["Hillis"].
[^16]: Samms, supra, at para. 73.
[^17]: Lapointe, supra, at p. 362; Hillis, supra, at paras. 62-63.
[^18]: Hillis, ibid, at paras. 62-63.
[^19]: Wilson, supra, at pp. 811-12.
[^20]: Lapointe, supra, at pp. 362-63.
[^21]: St-Jean, supra, at para. 53; Bafaro, supra, at para. 24.
[^22]: St-Jean, ibid, at para. 53; Leckie v. Chaiton, 2021 ONSC 7770, at para. 17 ["Leckie"]; Wilson v. Byrne, 2004 20532 (Ont. S.C.), at para. 28 ["Wilson v. Byrne"].
[^23]: ter Neuzen, supra, at para. 34.
[^24]: The Estate of Carlo DeMarco et al. v. Dr. Martin et al., 2019 ONSC 2788, 57 C.C.L.T. (4th) 100, at para. 67 ["DeMarco"].
[^25]: Hutterli et al. v. Scott, 2021 ONSC 1426, at para. 113 ["Hutterli"].
[^26]: Jones-Carter v. Warwaruk, 2019 ONSC 1965, at para. 266 ["Jones‑Carter"].
[^27]: Sommerville v. Fine, 2021 ONSC 5638, at para. 68 ["Sommerville"].
[^28]: Watson, supra, at para. 76; Adams v. Taylor, 2012 ONSC 4208, 94 C.C.L.T. (3d) 144, at para. 36 ["Adams"].
[^29]: Watson, ibid, at para. 78.
[^30]: Watson, ibid, at para. 77.
[^31]: Lennox v. Burns, 2016 ONSC 2993, at para. 139 ["Lennox"].
[^32]: Watson, supra, at para. 79; Adams, supra, at para. 43.
[^33]: Cooper v. Valiulis, 2012 ONSC 664, at para. 150 ["Cooper"].
[^34]: DeMarco, supra, at para. 65; Ghiassi v. Singh, 2017 ONSC 6541, at para. 25, aff'd 2018 ONCA 764 ["Ghiassi"].
[^35]: Holmes v. Gibson, 2020 ABQB 322, at para. 42 ["Holmes"].
[^36]: Joseph Brant Memorial Hospital v. Koziol, 1977 6 (SCC), [1978] 1 S.C.R. 491, at pp. 496-97 ["Joseph Brant"].
[^37]: Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192 ["Hopp"]; Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 ["Reibl"].
[^38]: Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634, at para. 24 ["Hollis"]; Hopp, ibid; Reibl, ibid.
[^39]: Hollis, ibid, at para. 24.
[^40]: Watson, supra, at para. 82; Bollman v. Soenen, 2014 ONCA 36, 315 O.A.C. 90, at paras. 18-29 ["Bollman"]; and Reibl, supra, at pp. 890-92.
[^41]: Reibl, ibid, at p. 884; Watson, ibid, at para. 82; Bollman, ibid, at para. 20.
[^42]: Coffey v. Cyriac, 2020 ONSC 6411, at para. 111 ["Coffey"].
[^43]: Coffey, ibid, at para. 111.
[^44]: Brown v. Baum, 2020 ONSC 1541, at para. 10 ["Brown"]; Coffey, ibid, at para. 11.
[^45]: Hopp, supra, at p. 210; Coffey, ibid, at para. 108.
[^46]: Coffey, ibid, at para. 110; Jesperson v. Karas, 2019 ONSC 5841, 60 C.C.L.T. (4th) 224, at para. 48 ["Jesperson"].
[^47]: Ross v. Welsh (2003), 18 C.C.L.T. (3d) 107, at paras. 134-35 ["Ross"].
[^48]: Dyke v. Grey Bruce Regional Health Centre (2005), 2005 18841 (ON CA), 197 O.A.C. 336 (C.A.), at para. 63 ["Dyke"].
[^49]: Hopp, supra, at p. 209; Coffey, supra, at para. 112.
[^50]: Hopp, ibid, at p. 209; Videto et al. v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 (Ont. S.C.) (“Videto”); Dyke, supra, at para. 63, leave to appeal refused [2005] S.C.C.A. No. 335.
[^51]: Matuzich v. Lieberman, [2002] O.J. No. 2811 (S.C.), at paras. 53-54 (“Matuzich”).
[^52]: Jesperson, supra, at para. 46.
[^53]: Hopp, supra, at p. 204.
[^54]: Reibl, supra, at p. 894.
[^55]: Stepita v. Dibble, 2020 ONSC 3041, at para. 83 ["Stepita"]; Bafaro, supra, at para. 41; Watson, supra, at para. 90.
[^56]: Stepita, ibid, at para. 83; Bollman, supra, at para. 27.
[^57]: Stepita, ibid, at paras. 84-85; Watson, supra, at para. 85.
[^58]: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 37 ["Clements"].
[^59]: Clements, ibid.
[^60]: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 20 ["Saadati"].
[^61]: Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 12 ["Mustapha"].
[^62]: Mustapha, ibid, at para. 16.
[^63]: Bollman, supra, at para. 21.
[^64]: Bollman, ibid, at para. 22, and Reibl, supra, at p. 898.
[^65]: Reibl, ibid, at p. 898.
[^66]: Bollman, supra, at para. 25.
[^67]: Bollman, ibid, at paras. 21, 23.
[^68]: Revell v. Heartwell, 2010 ONCA 353, 266 O.A.C. 184, at para. 56 ["Revell"].
[^69]: Reibl, supra, at pp. 898-900; Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539, at para. 6 ["Arndt"]; Revell, ibid, at para. 55.
[^70]: Stepita, supra, at para 43; Watson, supra, at para. 23.
[^71]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 2, 10, 30, 49-50, and 60 ["White Burgess"].
[^72]: Vescio v. Garfield (2007), 50 C.C.L.T. (3d) 279, at para. 102 ["Vescio"].
[^73]: Reibl v. Hughes, 1980 23 (SC), at para. 17
[^74]: Parliament v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at para. 52 ["Parliament"].
[^75]: Akeelah v Clow, 2018 ONSC 3410 at para. 299.
[^76]: Latta v Ontario, 2004 23487 (ON SC), [2004] OTC 802 (ONSC) at para. 162.
[^77]: Hartwick v Simser, 2004 34512 (ONSC) at para. 325.
[^78]: Wilhelmson v Dumma, 2017 BCSC 616.
[^79]: Walker v Ritchie, 2003 17106.
[^80]: See Afonina v Jansson, 2015 BCSC 10; Akeelah v Clow, 2018 ONSC 3410; Hartwick v Simser, 2004 34512; Nicolls v BC Cancer Agency, 1999 6531 (BC SC).
[^81]: Estate of Mary Fleury et al v. Olayiwola A. Kassim, 2022 ONSC 2464 at paras. 296 and 313.
[^82]: B(M) v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, at para. 28; see paras. 25-43.