COURT FILE NO.: CV-13-00058490-0000

DATE: 2024/04/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRANK PAPINEAU

Plaintiff

– AND –

DR. PABLO ROMERO-SIERRA & DR. JOHNNY BRISEBOIS

Defendants

Mikolaj Grodzki, QUINN THIELE MINEAULT GRODZKI LLP, Michael Switzer, SWITZER LITIGATION, for the Plaintiff

Phuong T.V. Ngo, Corey Willard, Francois Guay-Racine, GOWLING WLG LLP, for the Defendants

HEARD: October 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29, 2021, May 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 24, 25, 26, 27, 2022 and September 12, 2022

REASONS FOR DECISION

Williams J.

OVERVIEW

[1] Certain ticks may carry a bacterium known as Borrelia burgdorferi which can cause an illness known as Lyme disease. The disease takes its name from Lyme, Connecticut; a cluster of cases of the disease was identified there in the 1970s.

[2] Lyme disease can have severe and life-altering consequences. Many Lyme disease sufferers and their supporters have been highly critical of the Canadian medical community’s approach to Lyme disease, including the accepted criteria for diagnosis and treatment protocols.

[3] The plaintiff Frank Papineau has sued two eastern Ontario doctors for medical malpractice, alleging that they negligently failed to diagnose him with Lyme disease and provide him with appropriate treatment.

[4] The defendant Dr. Johnny Brisebois is a family physician who was working in the emergency department of the Kemptville District Hospital (“KDH”) in April 2010 when Mr. Papineau visited the hospital, concerned about a possible tick bite and a rash. Mr. Papineau alleges that Dr. Brisebois failed to investigate and diagnose his condition properly and that Dr. Brisebois should have but did not prescribe antibiotics that would have prevented Lyme disease from developing.

[5] The defendant Dr. Pablo Romero-Sierra was Mr. Papineau’s family physician for many years. Mr. Papineau alleges that for two years following his visit to the KDH emergency department, he repeatedly asked Dr. Romero-Sierra if he might have Lyme disease and that Dr. Romero-Sierra repeatedly “blew off” his concerns.

[6] In September 2012, Mr. Papineau was diagnosed with Lyme disease by a physician in the United States.

[7] Mr. Papineau alleges that the negligence of Dr. Brisebois and Dr. Romero-Sierra caused him years of unnecessary suffering and cost him hundreds of thousands of dollars in lost income.

[8] Dr. Brisebois and Dr. Romero-Sierra maintain that they cared for Mr. Papineau in a reasonable and appropriate manner that was consistent with accepted and approved standards of medical care. They deny that Mr. Papineau suffered any losses because of their care.

[9] KDH was named as a defendant to Mr. Papineau’s action when he issued his statement of claim, but Mr. Papineau later discontinued his claim against the hospital.

Background

[10] Frank Papineau was born in 1963. He lives in Ottawa and works as a private investigator.

[11] Mr. Papineau did not have an easy start in life. He testified that his mother had been pregnant at 16, his stepfather was an alcoholic and there was physical violence in the home. Mr. Papineau said he experienced, as he put it, “things that are usually hidden under the carpet.” He said his mother told him he should leave home and he did so at the age of 16.

[12] Mr. Papineau has an eclectic work history. He testified that he started working at the age of nine when he sold flowers from his parents’ farm. Over the years, Mr. Papineau worked in the food industry and in sales. In the early 1980s, he sold and installed curtains and blinds. In the late 1980s, he sold safety glasses. In the 1990s, Mr. Papineau became involved with a local cable television company in Ottawa where he eventually produced and hosted a show about fishing and another about golf. Mr. Papineau then worked in marketing for an internet company. He also filled in as an airborne traffic reporter for radio stations.

[13] In October 2009, Mr. Papineau opened a restaurant and bar in Kemptville, south of Ottawa. He named it Charliewoods Bar and Grill, after his romantic partner at the time, Ashley Charlebois. Mr. Papineau said he designed the premises and did much of the physical and administrative work required to set up the business himself. He then operated the business on a day-to-day basis. Mr. Papineau said he had an investment partner but that he, Mr. Papineau, ran the show.

[14] Mr. Papineau said it was a great time in his life: He had a beautiful girlfriend; he had a bar; he had a motorcycle; he was flying in planes all over the city. Obviously intending to convey that it was an understatement, Mr. Papineau testified that he was “doing okay”.

[15] Mr. Papineau said that, at the time, he had no physical limitations, his energy level was “perfect”, and he had great stamina.

[16] Mr. Papineau said everything came crashing down around him beginning in April 2010 when he was bitten by a tick and Dr. Brisebois and then Dr. Romero-Sierra failed to diagnose and treat him properly.

The evidence at trial

[17] Twenty-six witnesses testified at the trial, including seven expert witnesses. Twenty-two of the witnesses were called by Mr. Papineau. There were 70 numbered exhibits, which included Mr. Papineau’s pre- and post-April 2010 medical records.

[18] I have considered all of the evidence, including the evidence of all of the witnesses, even if in these reasons I do not refer to a witness by name or summarize their evidence.

A brief summary of thESE REASONS

[19] After considering all of the evidence, including the evidence of the expert witnesses, I was not persuaded that, in respect of any matter in issue, either Dr. Brisebois or Dr. Romero-Sierra breached the standard of care that was applicable in the circumstances.

[20] Dr. Brisebois, who has devoted most of his career to providing emergency medical care to rural communities, impressed me as a conscientious, knowledgeable, and caring physician. I note that, in his testimony, Mr. Papineau’s standard of care witness, Dr. John Haggblad, said that although he would have treated Mr. Papineau differently than Dr. Brisebois did, his impression of Dr. Brisebois was of “a competent, well-rounded physician.”

[21] I found that because Dr. Romero-Sierra did not believe that Mr. Papineau had Lyme disease, he breached the standard of care when, at Mr. Papineau’s request, he rewrote the prescriptions an American doctor had given to Mr. Papineau. This was not, however, an issue raised in Mr. Papineau’s statement of claim. Mr. Papineau was happy to receive the prescriptions and, after Mr. Papineau left Dr. Romero-Sierra’s practice, a different family physician in Ottawa renewed the same prescriptions.

[22] At trial, in addition to alleging negligence, Mr. Papineau launched an aggressive assault on Dr. Romero-Sierra’s integrity and reputation. Mr. Papineau’s counsel accused Dr. Romero-Sierra of lying about several different matters, destroying a hospital record, fabricating notes and over-billing OHIP. While there were some contradictions in Dr. Romero-Sierra’s testimony, and he readily admitted that his chart was less than perfect, I found the attacks against Dr. Romero-Sierra’s professionalism to be gratuitous and without foundation. The accusations seemed particularly unfair when, in my view, a surreptitious recording Mr. Papineau made of his last visit with Dr. Romero-Sierra demonstrated that Dr. Romero-Sierra, who obviously did not know he was being recorded, was trying hard to explain to Mr. Papineau why he did not believe Mr. Papineau had Lyme disease and to help him.

[23] I found much of Mr. Papineau’s oral evidence at trial to be unreliable and, in several instances, not to be credible. I also find that some of Mr. Papineau’s evidence improved with time. For example, when Mr. Papineau saw Dr. Brisebois at the KDH on April 14, 2010, he told Dr. Brisebois that he had been bitten by a “bug” and that he thought it “was an insect and not a tick.” This is clearly reflected in Dr. Brisebois’s notes. There was no further mention of a tick in Mr. Papineau’s medical records until May 2012, when he was asked by a triage nurse at a hospital if he had ever been tested for Lyme disease. Mr. Papineau then told different health care providers at the hospital that he had been bitten by a tick “18 months ago” and “last November”. Later, in September 2012, Mr. Papineau told an American doctor he had been bitten by a “black leg nymph tick” in April 2010.

[24] Mr. Papineau also told the triage nurse at the KDH and Dr. Brisebois, respectively, that he had been bitten the previous day and 36 hours earlier, which would have been on April 13, 2010. At trial, Mr. Papineau insisted that he had been bitten on April 10, 2010, four days before his visit to the KDH. The timing of the bite is important. There was evidence at trial about how long after a tick bite the rash associated with Lyme disease is likely to appear, with authoritative references (the Public Health Agency of Canada and the U.S. Centers for Disease Control and Prevention) agreeing that the typical range is three to about 30 days. A rash that appears only 36 hours post-bite is less likely to be tick-related. (I note that before it was amended to refer to April 10, 2010, Mr. Papineau’s statement of claim alleged that he had been bitten on April 14, 2010, the same day as his visit to the KDH.)

[25] With respect to whether Mr. Papineau was bitten by a tick, I inferred from the KDH records that, contrary to his evidence at trial, Mr. Papineau himself, an experienced outdoorsman, did not believe that he had been bitten by a tick when he visited the KDH emergency department on April 14, 2010. I accepted that, Mr. Papineau, quite reasonably, was nonetheless concerned when he developed a rash at the site of the bite, particularly as the dog owned by his partner Ms. Charlebois’s stepfather, Bruce Brownell, had been diagnosed with Lyme disease. Dr. Brisebois investigated the rash and diagnosed Mr. Papineau with cellulitis.

[26] I did not accept Mr. Brownell’s evidence that he saw a tick on Mr. Papineau’s arm. Mr. Brownell said a tick was not like a large spider, which you can see from across a room. Mr. Brownell was asked if he got close to Mr. Papineau and actually looked at the tick. At first, Mr. Brownell said he was probably a foot or two away, close enough that he could see it. He then admitted that he could not actually remember walking over and looking at the tick; he said that is what he “would have done.” Despite this admission, Mr. Brownell continued to insist that he saw a tick. I found it telling that Mr. Brownell said that what he saw on Mr. Papineau’s arm was black, while Mr. Papineau and Ms. Charlebois said it was white.

[27] Some evidence pointed to a likelihood that Mr. Papineau had been bitten by a tick, including that ticks were known to be present in the Brockville area at the time. That said, Mr. Papineau did not persuade me, on a balance of probabilities that he was bitten by a tick. I preferred the KDH records over Mr. Papineau’s testimony, and was satisfied that, when he attended at the KDH, Mr. Papineau did not know whether he had been bitten by a tick and thought it was more likely that he had been bitten by an insect. (Dr. Haggblad and Dr. Brisebois both explained at trial that a tick, like a spider, is an arthropod, and not an insect.)

[28] This case did not require me to enter the fray in respect of the controversy over Lyme disease diagnosis and treatment in any significant respect. The evidence at trial did not satisfy me that Mr. Papineau had ever been diagnosed with Lyme disease by a physician who had all of the relevant information and no misinformation, regardless of the diagnostic criteria that were applied. While I did not accept the opinion of the expert witness who testified that Mr. Papineau had acute Lyme disease when he met with Dr. Brisebois on April 14, 2010, it was because the opinion did not withstand scrutiny and not because it was not based on mainstream science.

[29] Dr. Romero-Sierra and the family physician who currently treats Mr. Papineau gave Mr. Papineau several opportunities to be referred to an infectious disease specialist. Such a specialist could have confirmed or questioned a Lyme disease diagnosis for Mr. Papineau. Mr. Papineau declined the offers of a referral. He said at trial that he knew he had Lyme disease, so there was no point. Mr. Papineau was not examined by an independent infectious disease specialist or any independent medical practitioner for purposes of this litigation.

[30] For these reasons, set out in more detail below, I dismissed Mr. Papineau’s action.

The issues

[31] The issues are the following:

1. Did Dr. Brisebois breach the applicable standard of care?

2. Did Dr. Romero-Sierra breach the applicable standard of care?

3. If Dr. Brisebois or Dr. Romero-Sierra or both defendants breached the applicable standard of care, did the breach or breaches cause Mr. Papineau’s alleged loss?

4. If there was a breach of the standard of care and the breach or breaches caused Mr. Papineau’s alleged loss, what are Mr. Papineau’s damages?

Legal principles

[32] I will begin by setting out some of the legal principles applicable to a medical malpractice case such as this one. I agree with and adopt the following helpful summary recently prepared by my colleague Roger J. in Henry v. Boivin et al., 2023 ONSC 663, at paras. 33 to 41:

[33] A plaintiff asserting a claim in negligence bears the onus of establishing: (a) that the defendant owed the plaintiff a duty of care; (b) that the defendant’s conduct breached the applicable standard of care; (c) that the plaintiff sustained damage; and (d) that the defendant caused the damage in fact (factual causation) and in law (legal causation): Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[34] There is no dispute that a duty of care was owed in this case.

[35] The standard of care of a medical practitioner is to exercise a reasonable degree of skill, knowledge and care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing. The standard of care is not perfection. A defendant physician cannot be judged in hindsight, or with an outcome-based retrospective approach: Bafaro v. Dowd, 2008 CanLII 45000 (Ont. S.C.), at paras. 22-23, 26-31, aff’d 2010 ONCA 188; Stevenhaagen (Estate) v. Kingston General Hospital, 2020 ONSC 5020, 260 O.A.C. 70, at paras. 106, 111-112, aff’d 2022 ONCA 560; and Jendrzejczak v. Weisleder, 2013 ONSC 967, at paras. 95, 124.

[36] It is insufficient to prove that different decisions would have had a better chance of achieving a more favourable outcome. There may be other reasonable options in any given situation. Absolute right or wrong choices rarely exist. Even a finding that there were better options available than those selected will not necessarily result in a finding of negligence. Unless the chosen course of action was one which a reasonable, competent physician would not have made in the circumstances, a defendant will not be found to have breached the standard of care: Stevenhaagen, at paras. 111-112.

[37] The exercise of a physician’s reasonable degree of care may include a duty to refer the patient to a specialist or to consult a specialist: Williams v. Bowler, 2005 CanLII 27526 (Ont. S.C.), at paras. 239-240. It may as well include a duty to treat and to provide reasonable instructions to his or her patients.

[38] However, because of the specialized knowledge required of medical professionals, in medical negligence cases, courts should not make conclusions on whether the standard of care was breached or on causation without expert opinion evidence in support of those conclusions: Bafaro, at para. 31; Jendrzejczak, at para. 124.

[39] A breach of the standard of care is not sufficient to establish negligence. Causation is also required.

[40] Indeed, if a breach of the standard of care is established, the plaintiff … bears the onus of proving causation on a balance of probabilities, based on expert evidence. If the cause of injury is determinable, the “but for” test applies, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant. It is not sufficient to demonstrate that ‘but for’ the alleged negligence the plaintiff would have had a better chance of avoiding the adverse outcome, unless that chance surpasses the threshold of more likely than not. If the plaintiff fails to prove that the unfavourable outcome would otherwise have been avoided, causation is not established: Bafaro, at paras. 31, 44; Jendrzejczak, at paras. 118-119; Stevenhaagen, at paras. 117, 120. The “but for” test should only be relaxed in circumstances where the precise cause of the injury is unknown: Bafaro, at para. 46.

[41] In addition to factual causation, the plaintiff must establish that the defendant caused the damage in law; that the injuries suffered were foreseeable or not too remote. Whether the injury is a real risk is assessed on the standard of a reasonable person in the position of the defendant. The harm suffered must be of a kind, type, or class that was reasonably foreseeable from the defendant’s negligence: Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, at paras. 49, 55 and 59.

[33] Poor record-keeping does not necessarily amount to negligence. Courts have repeatedly recognized that deficient charting is only relevant to a standard of care analysis if the deficient records played a causative role in the adverse outcome: Adams v. Taylor, 2012 ONSC 4208, 94 C.C.L.T. (3d) 144, at para. 43.

Issue #1: Did Dr. Brisebois breach the applicable standard of care?

Mr. Papineau’s evidence about the bite

[34] Mr. Papineau testified that in April 2010, he and his then-partner, Ms. Charlebois, visited Ms. Charlebois’s mother and stepfather, Mr. Brownell, at their home in Greenbush, Ontario, near Brockville. Mr. Papineau said it was during this visit that he was bitten by a tick.

[35] Mr. Papineau said that he, Ms. Charlebois and Mr. Brownell were outdoors cutting wood. Mr. Papineau said it was in the morning, probably after 10 a.m. and before noon. Mr. Papineau said it was an unusually warm day for April, and he was wearing a T-shirt. Mr. Papineau said he felt as though his T-shirt became stuck on something on his right arm. He said he lifted the arm up and saw a tick embedded in his upper bicep.

[36] Mr. Papineau said “it was kind of bedlam” because he wanted the tick out of his arm right away. Mr. Papineau said he was wearing gloves, so he motioned to Ms. Charlebois to help him. In his examination in chief, Mr. Papineau said that Ms. Charlebois swatted at the tick several times and eventually it was out. When cross-examined at trial, Mr. Papineau said that Ms. Charlebois had had to pluck or pull the tick to remove it from his arm, but later agreed that he did not know whether she had done this, because there was “a slight panic” at the time.

[37] Mr. Papineau said that after the bite, his immediate concern was Lyme disease. He said Mr. Brownell’s dog had been diagnosed with Lyme disease. Mr. Papineau said that he, Ms. Charlebois and Mr. Brownell had a conversation about how Mr. Papineau should watch for Lyme disease and, in particular, for a rash. Mr. Papineau said, “it wasn’t a super-long talk”. He said they then resumed cutting wood.

[38] Mr. Papineau said he knew about Lyme disease before the day of the bite. He said he had attended a presentation about wolves, chronic wasting disease and Lyme disease. Mr. Papineau said he knew you did not want to get Lyme disease.

[39] Mr. Papineau said he was also familiar with ticks before the day of the bite. He described himself as an experienced outdoorsman, who hunted and fished. Mr. Papineau said he had seen ticks before in person, on dogs and in literature and had learned about them at the presentation he attended.

[40] Mr. Papineau said the tick that bit him was a deer tick or a black-legged tick. Mr. Papineau said these ticks have a white back. He identified a drawing of a tick he had found on the internet that he said looked like the one that bit him.[^1] Mr. Papineau said the tick that bit him had a translucent white back that was obvious at such a close distance and that the frontal part was in his arm. He said the tick was the size of a poppy seed.

[41] Mr. Papineau was adamant that he was bitten on Saturday, April 10, 2010[^2].

Mr. Brownell’s evidence about the bite

[42] Mr. Brownell said that he, Mr. Papineau and Ms. Charlebois were cutting down a tree at his home when Mr. Papineau suddenly said “ouch” and grabbed his arm.

[43] Mr. Brownell said he saw a small black dot on Mr. Papineau’s arm. He said they looked more closely, and saw it was a tick.

[44] Mr. Brownell said he was familiar with ticks. He said he had worked outdoors his entire life and had read a lot about staying safe while outdoors. He said he had seen a lot of pictures of ticks, and he was 100 per cent sure that what he saw on Mr. Papineau’s arm was a tick. He said he once had an engorged tick on his body. He also said his dog had been diagnosed with Lyme disease.

[45] Mr. Brownell said he couldn’t say whether the tick was engorged but he said it was latched on tight. He said it was a small tick, not an adult tick.

[46] On cross-examination, Mr. Brownell was asked if he got close to Mr. Papineau and actually looked at the tick. At first, Mr. Brownell said he was probably a foot or two away, close enough that he could see it. He then admitted that he could not remember walking over and looking at the tick, but that is what he would have done. The following is an excerpt from the transcript of Mr. Brownell’s cross-examination:

Q. Okay. And then I understand you then went over to Frank; was Ashley there with you?

A. Yes. Ashley was there.

Q. Okay. And is it fair to say that you did not examine Frank's arm at that time?

A. No. But we looked at his arm, and we could see the tick on his arm.

Q. Right. But did you go in and actually look at the tick? Or you were kind of - how far, how close were you from Frank's arm?

A. Probably a foot or two. Close enough that I could see it.

Q. Okay. Okay, well when we spoke on September 28th, sir, you told me and Mr. Guay-Racine that you had not looked at the tick up close, and that you were further away from the tick; you weren't anywhere near it. Is that correct or incorrect?

A. Well, when he first set out, no, I wasn't that close to him. But when he pulled his sleeve up, I would have gone over and looked at it. Do I remember exactly what the sequence was? No, but if I was gonna look at a tick, you'd have to get close enough to see what it is. It's not like a large spider that you can see from across the room.

Q. All right. But again, I'll ask the question. So do you have a specific memory of approaching Frank's arm within a foot or two and looking at this object on his arm? Or are you saying this is something you would have done, based on what you know about ticks and your demeanour?

A. Okay, let's say - that's what I would have done. Do I have a specific memory of it? No, I - it's 11 years go. No, I'm not gonna say [indiscernible], I can't see - but if somebody said, I have a tick on me, I would walk over and take a look at it. And that would be getting within a foot or two of the tick, to see that it was a tick.

[47] Following these questions and answers, Mr. Brownell insisted that he saw a tick on Mr. Papineau’s arm but admitted that the other details about what happened that day were fuzzy. Mr. Brownell said that Ms. Charlebois had tried to brush the tick off Mr. Papineau’s arm, then said that he could not say that she had done that, because it was a long time ago. Mr. Brownell said it seemed to him the tick was in pieces when it came out of Mr. Papineau’s arm, but he could not specifically remember.

[48] Mr. Brownell said that in April 2010, he knew that in the event of a tick bite, it was important to keep the tick, so that it could be shown to a doctor. Mr. Brownell said he did not know what happened to the tick that bit Mr. Papineau and he did not remember having a discussion with Mr. Papineau and Ms. Charlebois about whether the tick should be kept.

[49] Mr. Brownell said he was quite sure that Mr. Papineau was bitten on April 10, 2010, which was a Saturday. Asked how he knew the date, Mr. Brownell said he had looked at the calendar on his iPad and saw that April 10, 2010 was a Saturday. Mr. Brownell said he was still working at the time, and he would have had the Saturday off. Mr. Brownell said that, otherwise, he would have known the date through talking with Mr. Papineau and Ms. Charlebois over the years about what happened and when and the date would have come up. Mr. Brownell asked, “how else would you determine when something happened 10 years ago?” He said that “as far as we determined” it was April 10th, a Saturday. On re-examination, Mr. Brownell said he was 100 per cent sure it was a Saturday.

Ms. Charlebois’s evidence about the bite

[50] Ms. Charlebois is now an RCMP constable.

[51] Ms. Charlebois said she met Mr. Papineau around 2008 when she was 19 and that she was 21 when their relationship began. She said Mr. Papineau was about 20 years older than she was. They broke up in August of 2017, a few months after Ms. Charlebois began her training to become an RCMP officer.

[52] Ms. Charlebois said that she and Mr. Papineau had not talked about Mr. Papineau’s case since 2018, when the case was originally supposed to go to trial. She said they do not communicate, although Mr. Papineau had reached out to her when her dog died.

[53] Asked about the date of the bite, Ms. Charlebois confirmed that she, Mr. Papineau and Mr. Brownell were cutting wood at the home of her mother and Mr. Brownell. She said it was late morning or early afternoon. She said that Mr. Papineau said something like, “ah, get it off of me” and showed her his arm. She said at first, she didn’t see anything. She then saw what appeared to be a little white crumb on his arm. Ms. Charlebois said that she was standing quite close to Mr. Papineau and that Mr. Brownell was perhaps 10 feet away.

[54] Ms. Charlebois said she did not know what the white thing was, but she tried to brush it off and then picked at it, using her fingers. She said she did not have to dig into the skin, or “stick her finger in there” or pinch it. She said she brushed it, it didn’t come off, so the second attempt was like a scratch or a pick. Ms. Charlebois said she could not say whether there were any remnants of the object left in Mr. Papineau’s arm.

[55] Ms. Charlebois said she did not know at the time that it was a tick. She agreed that she discovered that it was a tick later, at some point when Mr. Papineau became ill.

[56] Ms. Charlebois was shown the drawing of the tick Mr. Papineau had found and identified. She said she would have seen the bottom end of the tick, which was “like a white, kind of ‘clear-ish’ crumb on his arm.” She said she could not see the front end of the tick, which she said would have been embedded in Mr. Papineau’s arm.

[57] Ms. Charlebois said that she could not recall what day of the week Mr. Papineau was bitten. She said she felt like it was in the middle of the week, because she worked weekends. Ms. Charlebois said her mother’s birthday was April 13, 2010 [a Tuesday]. She said it was possible, given her work schedule, that she and Mr. Papineau may have gone to visit her mother on her birthday.

Mr. Papineau’s evidence about the days following the bite

[58] Mr. Papineau said the morning after he was bitten, he asked Ms. Charlebois to draw a circle around the bite. He said the circle was bigger than a two-dollar coin. Mr. Papineau said he did not have a rash at the time. He said he would know he had Lyme disease if a rash appeared.

[59] Mr. Papineau said that two days after he was bitten, a pale rash appeared and started to fill in the circle Ms. Charlebois had drawn on his arm.

[60] Mr. Papineau said, at that time, he also began to feel ill. He said that something was “off.” He was a little chilled and he had a headache. He said it was subtle, but he started to believe there was going to be a problem. He said he had “flu-like symptoms.” He said he was fatigued, kind of achy and unwell.

[61] Mr. Papineau said the third morning after the bite, the rash was definitely growing. He said it had expanded beyond the circle Ms. Charlebois had drawn. He said it was starting to grow a darker portion on the outside. Mr. Papineau said he was becoming very concerned. He said he was really starting to feel flu-like symptoms. He had achy bones, muscle aches and no energy.

[62] Mr. Papineau said the fourth morning after the bite, Wednesday, April 14, 2010, the rash was big, and he was not feeling well. He said he was alternating between a fever and chills. His big joints were sore. Mr. Papineau said he knew at that point that he had Lyme disease.

Mr. Papineau’s evidence about his attendance at the KDH

[63] Mr. Papineau said that on April 14, 2010, he went to the KDH so that he could be diagnosed with Lyme disease and get medication for it.

[64] Mr. Papineau said that when he arrived at the hospital, he wasn’t feeling well. He said he was triaged by a nurse. He said he told the nurse about the family dog with Lyme disease, that he had been cutting wood on the Saturday, about how he was bitten and about how Ms. Charlebois had drawn a circle on his arm.

[65] Mr. Papineau said he believed that he saw Dr. Brisebois around 11 p.m. Mr. Papineau said he told Dr. Brisebois that he had been bitten by a tick the previous Saturday. Mr. Papineau said he told Dr. Brisebois that he had been cutting wood and where he had been at the time. Mr. Papineau said he told Dr. Brisebois that the rash had been getting progressively worse and that he had been feeling unwell, with flu-like symptoms. He said that by “flu-like symptoms” he meant chills, fever and aches. Mr. Papineau said he also told Dr. Brisebois that he had been having some sinus issues and diarrhea.

[66] Mr. Papineau said his meeting with Dr. Brisebois lasted no more than five minutes. Mr. Papineau said that Dr. Brisebois looked at his arm and asked him whether he had the tick that had bitten him. Mr. Papineau said he did not. Mr. Papineau said that Dr. Brisebois told him he did not think that a tick had bitten him. Mr. Papineau said he had a big issue with this, and that he had had to be very adamant with Dr. Brisebois to persuade him that he had been bitten by a tick. Mr. Papineau said that when Dr. Brisebois told him he would be prescribing antibiotics, he believed that he had convinced Dr. Brisebois that he had been bitten by a tick.

[67] Mr. Papineau said that while at the hospital, he took a photo of his rash, because, if it grew larger, he wanted evidence of what it had looked like.

[68] Mr. Papineau said the nurse came in and gave him some medication. He said he took one or two and then left. Mr. Papineau said he had no idea what the medication was going to do. He said he believed it was for Lyme disease, because that was why he had gone to the hospital.

[69] Mr. Papineau said that, in terms of follow-up, he believes that Dr. Brisebois told him to come back if he had any issues.

[70] Mr. Papineau said he was given a prescription for amoxicillin, which he filled at a pharmacy the next day. The records of the pharmacist where Mr. Papineau filled his prescription include a reference to Lyme disease. Mr. Papineau said the pharmacy would have gotten this information from him.

[71] Mr. Papineau said the tick bite was just something that had to be taken care of. He said it wasn’t a big deal, and he thought that it had been dealt with.

[72] Mr. Papineau said he took the amoxicillin for 10 days. He said that at the end of the 10-day period, he felt better and his symptoms, including the rash, were gone. Mr. Papineau said that he then felt well until some time in June, when he began to feel flu-like symptoms, joint pain and fatigue.

[73] On cross-examination, Mr. Papineau was shown the KDH triage nurse’s note which said he had been bitten “by an insect” “yesterday a.m.” and that the rash was “slight bigger than pen mark from yesterday”. Mr. Papineau was also shown Dr. Brisebois’s note, which said that he had been bitten “36 hours ago” and “thinks was an insect and not a tick”. Mr. Papineau insisted that he had been bitten on Saturday, April 10, 2010, and not the day before he attended at the KDH, which would have been Tuesday, April 13, 2010. Mr. Papineau also insisted that he had been bitten by a tick and not an insect.

The evidence of Dr. Brisebois

[74] Dr. Brisebois is a family physician. He graduated from the medical school at the University of Alberta in 1993 and completed his College of Family Physicians of Canada certification in 1995.

[75] Dr. Brisebois works as an emergency physician at the KDH and two other hospitals, one in Deep River and one in Barry’s Bay. Dr. Brisebois said he was always interested in working in rural areas and small communities. Dr. Brisebois works primarily at the KDH, as he did in April 2010, when he treated Mr. Papineau.

[76] Dr. Brisebois does not have formal certification in emergency medicine. He said that formal certification is not required to work in an emergency department. He said that of the 23 physicians who work with him at KDH, none has formal emergency certification.

[77] Dr. Brisebois had no recollection of his meeting with Mr. Papineau in April 2010. He based his testimony on Mr. Papineau’s chart, which included the triage nurse’s notes and his own notes.

[78] Dr. Brisebois said he has a framework, or usual practice, that he follows for certain problems. He said that, as a doctor who had been working in rural areas for a long time, he has seen many bug bites. He said his protocol depends to some extent on the timing of a bite. If a person has just been bitten, he would consider whether it was a bee or a yellowjacket and would be worried about anaphylaxis. He said that, at the time he saw Mr. Papineau in 2010, they were starting to see ticks in the Kemptville area. Dr. Brisebois said that, at the time, if a person came to the emergency room the day after a bite, he would need to determine whether the person had been bitten by a tick.

[79] Dr. Brisebois said his standard practice was to read the triage nurse’s note before seeing a patient. He said this would typically take two or three minutes. He said the triage nurse’s note would explain why the patient had come to the emergency department. It would also list the patient’s vital signs.

[80] Dr. Brisebois said that, according to the triage nurse’s note, Mr. Papineau’s presenting complaint was “bug bite”.

[81] Dr. Brisebois said the triage nurse had noted that the patient was “out cutting wood yesterday a.m.” and “got bit by an insect.” The nurse wrote “4 cm round pale flat mark on upper arm slightly bigger than pen mark from yesterday”, “[t]oday has diarrhea x4” and “[d]og in the vicinity has Lyme Disease.”

[82] Dr. Brisebois said the triage nurse’s note indicated that Mr. Papineau’s blood pressure was high. He said this is very common for patients who are being seen in the emergency department. Mr. Papineau’s temperature was normal. Pain was recorded to be 2/10. The note did not include a reference to the location of the pain.

[83] Dr. Brisebois said the nurse had ticked “no” in response to whether Mr. Papineau had a temperature of “> 38, or feverish &/or chills in last 24 hours, or antipyretic in last 4 hours.” Dr. Brisebois explained an antipyretic is medication that would mask a temperature.

[84] Dr. Brisebois said the nurse’s note indicated that Mr. Papineau had been triaged at 8:45 p.m. He said that when he meets with a patient, the first note he makes is the time he enters the room to start his interview of the patient. In Mr. Papineau’s case, this was 23:13. Dr. Brisebois said he would typically begin by gathering the patient’s history, but that when patients present with rashes, it is a little bit different. He said with rashes, he would sometimes look at the rash first and then ask questions based on the rash.

[85] Dr. Brisebois said Mr. Papineau presented with two medical issues. Referring to his notes in Mr. Papineau’s chart, Dr. Brisebois said that Mr. Papineau’s subjective complaints were the following:

1- Bug bite onto right arm – 36 hours ago. Thinks was an insect and not a tick.

2- Sinus pain x 3/7 with runny nose.”

Dr. Brisebois explained that 3/7 means three days.

[86] Dr. Brisebois said that, as an emergency room physician, he sees ticks. He said ticks burrow inside a person’s skin and are difficult to remove. He said that insects bite but are typically easy to remove. He said that ticks have large bodies, and eight legs, and insects have smaller bodies and six legs. Dr. Brisebois confirmed that Mr. Papineau told him that he did not think that he had been bitten by a tick and that he thought it had been an insect.

[87] Dr. Brisebois said that if Mr. Papineau had told him that he had been bitten by a tick, Dr. Brisebois would have written that down.

[88] Dr. Brisebois said he noted that Mr. Papineau appeared well-looking, if tired. Dr. Brisebois said he wrote: “Skin: erythema swelling warmth pain.” He said he was referring to the rash on Mr. Papineau’s right arm. He said “erythema” mean “red.”

[89] Dr. Brisebois said that because Mr. Papineau was complaining of sinus pain, he examined Mr. Papineau’s head and neck. He noted normal temporal membrane and pharynx. Dr. Brisebois said he concluded that Mr. Papineau had pain over his sinuses which is typically associated with infection.

[90] Dr. Brisebois said his note indicates that pictures had been taken.

[91] Dr. Brisebois said the diagnoses he arrived at was sinusitis/cellulitis. He said he would have told the patient that based on the patient’s history and Dr. Brisebois’s physical examination of the patient, Dr. Brisebois believed the patient had sinusitis and cellulitis.

[92] Dr. Brisebois prescribed amoxicillin, 500 mg, by mouth, three times/day for 10 days. Dr. Brisebois said his preference for cellulitis would have been to treat it with another medication known as Keflex, but he opted for amoxicillin because he believed it would treat both the sinusitis and the cellulitis. Dr. Brisebois said the 10 days would not have been long enough to treat Lyme disease, but he was not treating Lyme disease.

[93] In respect of his diagnosis of cellulitis, Dr. Brisebois said that erythema migrans, the rash associated with and peculiar to Lyme disease, would have been an alternative possibility, if Mr. Papineau had told him he had been bitten by a tick. Dr. Brisebois said that by April 2010, ticks carrying the Lyme disease bacterium were starting to be seen in the Kemptville area. Dr. Brisebois said that if Mr. Papineau had said he was bitten by a tick, he would have followed a different protocol. He said that insect bites have a different set of problems associated with them.

[94] Dr. Brisebois said he would have considered but ruled out Lyme disease in Mr. Papineau’s case for several reasons. He said he did not rule out Lyme disease only because Mr. Papineau had told him that he believed he had been bitten by an insect and not a tick. Dr. Brisebois said Mr. Papineau could have been mistaken and he could have been bitten by a tick. Dr. Brisebois said he ruled out Lyme disease in Mr. Papineau’s case for the following reasons:

1. Mr. Papineau told him he was bitten while he was chopping wood the previous day and that he had the rash the previous day. Dr. Brisebois said the erythema migrans rash requires a minimum of three days to develop and typically appears in seven to 10 days after a tick bite.

2. To transmit the Lyme disease bacterium, a tick typically must be attached for at least 24 to 36 hours and some authorities say 36 to 40 hours. Mr. Papineau said he had been chopping wood the previous morning and he was at the 36-hour point when he attended at the emergency department. Dr. Brisebois said that in these circumstances, Lyme disease did not make sense.

3. Mr. Papineau looked well, although tired. Dr. Brisebois said that typically a person with erythema migrans does not appear well and typically will have fever and chills. Dr. Brisebois said the triage nurse had noted that Mr. Papineau did not report a temperature, fever or chills or having taken an antipyretic (a medication that would mask a temperature.) Dr. Brisebois said he also would have asked Mr. Papineau about fever and chills.

4. Mr. Papineau reported that his rash was red, swollen, warm and painful. Dr. Brisebois said that while Mr. Papineau’s rash did not look like an erythema migrans rash, there can be atypical presentations. He said the erythema migrans rash will not, however, be painful. Dr. Brisebois said the presentation was much more consistent with cellulitis, which can be painful.

5. The erythema migrans rash must be a minimum of five centimetres in diameter to be diagnosed. Dr. Brisebois said Mr. Papineau’s rash did not appear to be that large.

[95] Dr. Brisebois said these factors in combination would have steered him away from a Lyme disease diagnosis.

[96] Dr. Brisebois said the significance to him of the reference in the triage nurse’s note to a dog in the vicinity having Lyme disease is that the patient was probably worried about Lyme disease. Dr. Brisebois said the fact that a dog or cat close to a patient had Lyme disease would not have been particularly significant to him, because, at the time he saw Mr. Papineau, April 2010, he was already aware there was some Lyme disease in the Kemptville area.

[97] Dr. Brisebois said that cellulitis is a bacterial infection of the skin and/or the layers of tissue under the skin. He said it can be mild or serious. He said he has seen patients die or lose limbs because of it. He said patients with cellulitis should be given antibiotics immediately. He said an insect does not give a patient cellulitis. He said the insect bites, the patient scratches, dirt gets into the wound and the infection spreads. Dr. Brisebois said Mr. Papineau’s presentation was consistent with cellulitis.

[98] Dr. Brisebois said his notes indicate that photographs were taken of Mr. Papineau’s rash. He said he likes to suggest that patients with cellulitis take photos of their rash. That way, if necessary, they can show other medical professionals what the rash had looked like. Dr. Brisebois said he believes that he, and not Mr. Papineau, would have taken the photos of Mr. Papineau’s rash, given the perspective of the photos, but he could not be sure.

[99] Dr. Brisebois said he has standard discharge instructions for patients with infections. He said he tells them they are being put on an antibiotic and if in three days they are not better or if they start to get a fever or chills or become fatigued or weak, they should return to the hospital. He said that for patients with cellulitis, he tells them their rash may get a little bit worse before it gets better but if it gets a lot worse, they should return to the hospital.

[100] Dr. Brisebois said his chart note indicates that he told Mr. Papineau to return to the emergency department if his rash developed into erythema migrans. Dr. Brisebois said he hopes he would have reassured Mr. Papineau by telling him that he did not think that Mr. Papineau had Lyme disease. Dr. Brisebois said that he would have described the erythema migrans rash to Mr. Papineau and would have mentioned that it is accompanied by fever, chills, general weakness and joint pain. Dr. Brisebois said he was very confident that he would have given these discharge instructions to Mr. Papineau. He said it is only in extreme circumstances, such as another patient arriving with a trauma or a heart attack, that he would not personally give his usual discharge instructions to a patient and that if that happens, he tries to telephone the patient later.

The evidence of Mr. Papineau’s standard of care expert, Dr. John Haggblad, in respect of Dr. Brisebois

[101] Dr. Haggblad is a family physician in Calgary, who has been in practice for 35 years. For almost 30 years, Dr. Haggblad has worked at a family medicine clinic. Dr. Haggblad has experience in emergency medicine and has worked in rural communities, although not since early in his career.

[102] Dr. Haggblad described himself as a Lyme disease advocate. He said he has a personal interest in Lyme disease. One of Dr. Haggblad’s family members was diagnosed with Lyme disease in 2012. Dr. Haggblad said he also had a pet diagnosed with Lyme disease.

[103] No request was made to qualify Dr. Haggblad as an expert in respect of Lyme disease.

[104] Applying the Mohan[^3] criteria for the admissibility of expert evidence, I was satisfied that Dr. Haggblad’s evidence was relevant. It was certainly necessary, as it was in respect of the central issue of the standard of care of the two defendants. I had some misgivings about whether Dr. Haggblad would be impartial, because of his advocacy and personal connection with Lyme disease. However, Dr. Haggblad confirmed that he was aware of his obligations to the court. Mindful that it is quite rare for a proposed expert’s evidence to be rejected at the threshold admissibility stage on the basis of a lack of independence and impartiality (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at para. 49), I concluded that, on a cost-benefit analysis, particularly as this was not a jury trial, Dr. Haggblad’s evidence should be admitted. I qualified Dr. Haggblad as an expert capable of giving evidence on the standard of care expected of a family physician, including a family physician practising in a rural emergency room setting.

[105] Dr. Haggblad went on to satisfy me that he truly had taken seriously his pledge to assist the court and to provide evidence that was objective, fair and non-partisan. Despite his familial connection with Lyme disease and his obviously strongly-held personal views about how a physician should treat a patient who may have encountered a tick infected with the Borrelia burgdorferi bacterium, Dr. Haggblad acknowledged that physicians may take an approach that is different from his personal approach, and still be acting reasonably. I found Dr. Haggblad to be a very fair witness in this respect. At times, it appeared to be almost painful for him to agree that it would be reasonable for a physician not to treat for Lyme disease in certain circumstances, but he nonetheless did so.

[106] Dr. Haggblad said that when Dr. Brisebois met with Mr. Papineau on April 14, 2010, shortly after Mr. Papineau had a possible tick bite, Dr. Brisebois had a unique opportunity to prescribe antibiotics for Mr. Papineau that would have prevented a lifelong disease, Lyme disease, from developing.

[107] Dr. Haggblad said it appeared to him that Dr. Brisebois had decided to treat Mr. Papineau for Lyme disease but gave him suboptimal treatment, in that he prescribed amoxicillin for 10 days instead of 14 days. Dr. Haggblad said that this was the crux of his criticism of Dr. Brisebois. However, on cross-examination, Dr. Haggblad agreed that an argument could be made that it was not too likely that Mr. Papineau had a tick bite, and a decision could be made not to treat for Lyme disease. He said either argument, to treat or not to treat, were valid arguments in the situation.

[108] Dr. Haggblad said that in Mr. Papineau’s case, he would have been more inclined to treat for Lyme disease than not to treat. On cross-examination, Dr. Haggblad agreed that because of his personal experience with Lyme disease, and his advocacy role, he might approach potential cases of Lyme disease differently than other physicians would. Dr. Haggblad agreed that other physicians could have different opinions. He said that provided a physician is applying their clinical judgment to the situation and considering all possibilities, they would be acting as a reasonable family physician would act in the same circumstances.

[109] Dr. Haggblad said that, although he did not necessarily agree that Dr. Brisebois had met the standard of care by considering Lyme disease and advising Mr. Papineau to return to the emergency department if there were any changes to his rash,[^4] arguing in favour of that proposition would not be unreasonable. Dr. Haggblad said that it was crucial, however, for a physician in Dr. Brisebois’s position to have made the patient in Mr. Papineau’s position aware that Lyme disease was a potential diagnosis.

[110] Dr. Haggblad said a family physician is not required to know how to diagnose Lyme disease. He said a family physician should know that Lyme disease is chronic and becomes difficult to treat once it become entrenched. He said they should also know that if they see a patient shortly after contact or potential contact with a tick, they are in a position to take steps to prevent Lyme disease.

[111] Initially, Dr. Haggblad said that he did not believe that Dr. Brisebois had intended to treat Mr. Papineau for sinusitis and cellulitis; he believed that Dr. Brisebois had attempted to treat for Lyme disease. Dr. Haggblad also said he believed that Dr. Brisebois was wrong to have attempted to treat cellulitis with amoxicillin. However, he later conceded that it was evident from the record that the amoxicillin Dr. Brisebois had prescribed was to treat sinusitis and cellulitis.

[112] On cross-examination, Dr. Haggblad agreed that, based on the records he had reviewed, Mr. Papineau did not appear to have any of the traditional symptoms associated with early Lyme disease when he met with Dr. Brisebois on April 14, 2010. Dr. Haggblad also said that, in his opinion, the rash Mr. Papineau presented with on April 14, 2010 was not typical of classic erythema migrans. Dr. Haggblad said that in assessing the rash, Dr. Brisebois would have been required to use his clinical judgment. He also emphasized that the absence of an erythema migrans rash does not enable a physician to rule out Lyme disease. Dr. Haggblad agreed that Mr. Papineau’s rash could have been cellulitis.

[113] Dr. Haggblad said that Mr. Papineau’s rash could have been an erythema migrans rash of an atypical nature, but that to conclude that it was an erythema migrans rash would be incorrect. While there was no bright line between the standard of care opinions Dr. Haggblad was qualified to give in this case and an opinion that is exclusively in respect of Lyme disease, I believe that this particular opinion crossed the fuzzy line between the two. I consider the opinion that it would be incorrect to diagnose Mr. Papineau’s rash as erythema migrans to be inadmissible, as there was no request made to qualify Dr. Haggblad as an expert in Lyme disease and I had not qualified him to give opinions specifically with respect to Lyme disease.

The evidence of Dr. Brisebois’s standard of care expert, Dr. Marco Sivilotti

[114] Dr. Sivilotti is an emergency room specialist who has been practising emergency medicine since 1994. Dr. Sivilotti practises in Kingston, Ontario. He was a member of the “Queen’s Lyme Disease Network.”

[115] Dr. Sivilotti was qualified as an expert in the field of emergency medicine, capable of giving opinion evidence on the standard of care expected of an emergency physician practising medicine in an emergency department in Ontario in April 2010. As was the case with Dr. Haggblad, no request was made to qualify Dr. Sivilotti as an expert capable of giving opinions specifically in respect of Lyme disease.

[116] Mr. Papineau’s counsel argued that Dr. Sivilotti was a “hired gun” who was extremely adversarial, bickered and did not provide unbiased, helpful evidence to the court. Mr. Papineau’s counsel argued that Dr. Sivilotti’s evidence should be significantly discounted for this reason.

[117] I did not share Mr. Papineau’s counsel’s impression of Dr. Sivilotti. Dr. Sivilotti gave precise answers and requested precise questions. He was knowledgeable and articulate. To the extent that some of the exchanges between Mr. Papineau’s counsel and Dr. Sivilotti were heated, it was the lawyer and not the doctor who turned up the temperature. I do not blame Dr. Sivilotti for bristling when, for example, Mr. Papineau’s counsel accused him of trying to help his “doctor friend” through his testimony. (Dr. Sivilotti replied that he wanted to be very clear that he was not a friend of anyone named in the action and that his service was to the court.) Aggressive cross-examination at a trial is fair game, but at times, through the tone of his voice and the nature and wording of his questions, Mr. Papineau’s counsel’s cross-examination of Dr. Sivilotti descended into incivility and insult. I felt obliged to admonish Mr. Papineau’s counsel[^5] and to apologize to Dr. Sivilotti on behalf of the court.

[118] Dr. Sivilotti’s opinion was that Dr. Brisebois had met or surpassed the standard of care he owed to Mr. Papineau. Dr. Sivilotti said it was evident that Dr. Brisebois was aware of the possibility that Mr. Papineau had been bitten by a tick. He said Dr. Brisebois appropriately diagnosed and treated Mr. Papineau for cellulitis and sinusitis and instructed him to return to the emergency department if the rash changed into an erythema migrans rash.

[119] Dr. Sivilotti said it appeared to him that Mr. Papineau had cellulitis when he was treated by Dr. Brisebois on April 14, 2010. Dr. Sivilotti said that, in his opinion, the timing of the bite, the size of the rash that appeared in the photographs taken that night and the charted characteristics of the rash were all more consistent with cellulitis than an erythema migrans rash. Dr. Sivilotti said that, for example, a rash related to cellulitis appears quickly and will be painful and warmer than the surrounding skin. Dr. Sivilotti said that cellulitis can be minor, or it can be very serious and even life-threatening.

[120] Dr. Sivilotti said the discharge instructions Dr. Brisebois provided to Mr. Papineau, to return to the emergency department if the rash changed to an erythema migrans rash were appropriate.

[121] Dr. Sivilotti also said that, in his opinion, the amoxicillin prescribed by Dr. Brisebois (500 mg three times per day for 10 days) would have been appropriate for purposes of Lyme disease prophylaxis. Dr. Sivilotti may have been capable of giving this opinion based on his training and experience but, like Dr. Haggblad, he was qualified as a standard of care expert and was not qualified at the trial to give opinions about Lyme disease. Recognizing again that there is no clear demarcation between the two types of opinions in this case, and despite the absence of an objection, I consider this opinion to be beyond the scope of the opinions Dr. Sivilotti was permitted to give at this trial and to be inadmissible.

Analysis

[122] I will consider the issues of whether Mr. Papineau has proven he was bitten by a tick, and when he was bitten by whatever bit him, later in these reasons. For purposes of considering whether Dr. Brisebois met the applicable standard of care, my focus will be the information that was available to Dr. Brisebois when he treated Mr. Papineau on April 14, 2010.

[123] At trial, Mr. Papineau was adamant that he had been bitten by a tick and that he was bitten the morning of April 10, 2010, about four and a half days before he went to the KDH emergency department the night of April 14, 2010.

[124] I am satisfied that in April 2010, Mr. Papineau knew the difference between an insect and a tick. Mr. Papineau, Ms. Charlebois and one of Mr. Papineau’s friends, Jeffrey Loueb, all testified that Mr. Papineau was an avid hunter. Mr. Papineau had produced a cable television program about fishing. Mr. Papineau was an experienced outdoorsman. He testified that he had seen ticks before the day he was bitten and that he had attended a presentation that dealt in part with Lyme disease.

[125] As I noted above, the KDH triage nurse had written that Mr. Papineau’s presenting complaint was a “bug bite”. The triage’s nurse’s note said, “out cutting wood yesterday a.m.” and “got bit by an insect.” Mr. Papineau said he had not been privy to the triage nurse’s note at the time and that he had no idea why it said what it said.

[126] When Mr. Papineau spoke with the triage nurse, he may not have intended to convey that he did not think he had been bitten by a tick. Dr. Brisebois’s note, however, suggests that when Mr. Papineau met with Dr. Brisebois, Mr. Papineau made just such a distinction. Dr. Brisebois’s note said: “BUG BITE ONTO Rt ARM – 36 hrs ago – THINKS WAS AN INSECT AND NOT A TICK.”

[127] Mr. Papineau said he did not recall the word “insect” ever having been used during his discussion with Dr. Brisebois. He also said that he and Dr. Brisebois had had a disagreement over whether he had been bitten by a tick. He said Dr. Brisebois had insisted it wasn’t a tick bite.

[128] I am satisfied that both the triage nurse’s note and Dr. Brisebois’s notes were made while they spoke with Mr. Papineau or shortly afterward. Dr. Brisebois said his usual practice is to review the triage nurse’s note before he meets with a patient, which means the triage nurse has written her note and made it available to him before he meets with the patient. Dr. Brisebois said that when dealing with cases that did not involve multiple referrals, such as that of Mr. Papineau, he would typically write his notes as soon as he has seen the patient and before the patient is discharged. Dr. Brisebois said he would go into the charting area, finish the patient’s chart, write any prescriptions, and then meet with the patient for a final time before the patient leaves.

[129] I consider the notes taken by the triage nurse and Dr. Brisebois to be more reliable evidence of what Mr. Papineau told them on April 14, 2010 than Mr. Papineau’s testimony at trial. I prefer the notes to Mr. Papineau’s testimony for the following reasons: (1) there are two different notes that are consistent with each other, in that they both refer to insects and they both indicate the bite happened the previous day; (2) the notes were taken by two different people who spoke to Mr. Papineau separately; (3) the notes were made while or shortly after the triage nurse and Dr. Brisebois each spoke with Mr. Papineau; (4) Dr. Brisebois said the triage nurse had about 30 years’ experience and that he had complete faith in her; (5) the triage nurse and Dr. Brisebois had no reason not to record accurately what Mr. Papineau told them; and (6) Mr. Papineau could not explain why the notes were so different from his recollection.

[130] For the same reasons, I accept the accuracy of the notes. I find that Mr. Papineau told the triage nurse and Dr. Brisebois that he had been bitten by “an insect” and that he specifically told Dr. Brisebois that he thought it “was an insect and not a tick”. I also find that Mr. Papineau told the triage nurse that he had been bitten “yesterday” and that he told Dr. Brisebois that he had been bitten 36 hours earlier. Because Mr. Papineau met with Dr. Brisebois around 11 p.m. on April 14, 2010, 36 hours earlier would have been around 11 a.m. on April 13, 2010, i.e. the previous day.

[131] I am satisfied that although Mr. Papineau told Dr. Brisebois he had been bitten by an insect and not a tick, Dr. Brisebois nonetheless considered the possibility that Mr. Papineau was bitten by a tick and that Lyme disease was a possibility. This is evident from Dr. Brisebois’s discharge note, which instructed Mr. Papineau to return to the emergency room if his rash developed into “EM”, a reference to erythema migrans. Before Dr. Brisebois testified, a considerable amount of trial time had been devoted to expert evidence about whether ticks would have been a known risk in the Brockville area in 2010. Dr. Brisebois, who was on the front line at the relevant time, resolved the issue when he said that, around the time he treated Mr. Papineau, they were starting to see infected ticks in the Kemptville area, and when a patient came to the KDH emergency department with a bite around that time, he had to consider whether they had been bitten by a tick.

[132] I accept Dr. Brisebois’s evidence that he diagnosed Mr. Papineau with cellulitis and sinusitis and that when he prescribed amoxicillin for 10 days, it was to treat Mr. Papineau for these conditions. I accept Dr. Brisebois’s evidence that he would have concluded that Mr. Papineau’s description of his rash as being swollen, warm and painful was consistent with cellulitis and inconsistent with an erythema migrans rash. I also accept Dr. Brisebois evidence in respect of the other reasons he ruled out Lyme disease in Mr. Papineau’s case.

[133] As I noted above, Mr. Papineau’s expert witness on standard of care, Dr. Haggblad, testified that while he personally would have given Mr. Papineau treatment for Lyme disease on April 14, 2010, it would have been reasonable for another physician to decide not to do so, provided they exercised their clinical judgment. There was ample evidence that Dr. Brisebois had exercised his clinical judgment in this case by identifying both cellulitis and erythema migrans as possibilities, by considering that although Mr. Papineau said he did not believe he had been bitten by a tick Mr. Papineau could be wrong, and by then concluding that cellulitis was the more likely of the two possibilities he had identified.

[134] As I also noted above, Dr. Haggblad said that although he did not personally agree, it was at least reasonable to argue that by considering Lyme disease and then advising the patient to return to the emergency department if his rash developed, as Dr. Brisebois did in this case, a physician will have met the standard of care. Dr. Haggblad also said that family and emergency room physicians are not required to diagnose Lyme disease, although they must know when to suspect it and they must also bring home to the patient that Lyme disease is a possibility. It is evident from Dr. Brisebois’s oral testimony, which I accept, and the reference to “EM” in his written discharge instructions, that Dr. Brisebois suspected and ruled out Lyme disease but also warned Mr. Papineau that Lyme disease was a possibility. I also accept Dr. Brisebois’s oral testimony that he would have talked to Mr. Papineau about what an “EM” or erythema migrans rash was.

[135] Dr. Haggblad’s evidence does not support a conclusion that Dr. Brisebois’s treatment of Mr. Papineau was unreasonable or that it failed to meet the applicable standard of care. Dr. Sivilotti’s opinion, which I accept, was that Dr. Brisebois met or surpassed the standard of care he owed to Mr. Papineau by being alive to the possibility that Mr. Papineau had been bitten by a tick, despite what Mr. Papineau had told him, by appropriately diagnosing and treating Mr. Papineau for cellulitis and sinusitis and by instructing Mr. Papineau to return to the emergency department if his rash changed into an erythema migrans rash.

[136] For these reasons, Mr. Papineau has not persuaded me that Dr. Brisebois failed to meet the applicable standard of care when he treated Mr. Papineau in the KDH emergency department the night of April 14, 2010. Dr. Brisebois, who has devoted most of his career to providing emergency medical care to rural communities, impressed me as a conscientious and knowledgeable physician. He also impressed me as a physician who cares about his patients; he became emotional, for example, when he mentioned a young former patient who had lost a limb because of cellulitis. Dr. Haggblad said that although he would have treated Mr. Papineau differently than Dr. Brisebois did, his overall impression of Dr. Brisebois was that of “a competent, well-rounded physician.”

Conclusion with respect to Issue #1

[137] For these reasons, I find that Dr. Brisebois’s treatment of Mr. Papineau on April 14, 2010 did not breach the applicable standard of care.

ISSUE #2: DID DR. ROMERO-SIERRA BREACH THE APPLICABLE STANDARD OF CARE?

Mr. Papineau’s evidence relevant to Dr. Romero-Sierra’s treatment

[138] Mr. Papineau said that after he took the antibiotics Dr. Brisebois prescribed on April 14, 2010, his rash disappeared, and he began to feel better. He said that shortly afterwards he began to feel unwell. He said he felt like a flu was coming on and that he had joint pain and was fatigued.

[139] Mr. Papineau said his first visit with Dr. Romero-Sierra after seeing Dr. Brisebois at the KDH was around the beginning of July 2010. Mr. Papineau said he told Dr. Romero-Sierra he was not feeling well. He said he told Dr. Romero-Sierra that he had been bitten by a tick in Brockville and that he had been treated for Lyme disease at the KDH. Mr. Papineau said this was the first time he talked to Dr. Romero-Sierra about the tick bite. Mr. Papineau said he also told Dr. Romero-Sierra about the family dog with Lyme disease. Mr. Papineau said he asked Dr. Romero-Sierra whether there could be a connection between the way he was feeling and the tick bite. Mr. Papineau said that Dr. Romero-Sierra told him that he had been in the military, had been bitten by many ticks and didn’t get Lyme disease. Mr. Papineau said Dr. Romero-Sierra told him not to worry and that it wasn’t Lyme disease.

[140] Mr. Papineau saw Dr. Romero-Sierra again on July 20, 2010. Dr. Romero-Sierra referred him to an ear, nose and throat specialist, Dr. Matyas, for chronic nasal congestion. Mr. Papineau said he had told Dr. Romero-Sierra that he believed his symptoms at the time were related to Lyme disease. He agreed Dr. Matyas made no reference to Lyme disease in his December 13, 2010 report.

[141] Mr. Papineau said his condition continued to get worse throughout 2010. Mr. Papineau’s medical records show that he met with Dr. Romero-Sierra on July 6, 2010 and July 20, 2010 and that his next visit was on January 25, 2011. There was no mention of a tick or Lyme disease in Dr. Romero-Sierra’s notes for these visits. Mr. Papineau said he would have mentioned concerns about Lyme disease each time and that he had no control over whether Dr. Romero-Sierra wrote down what he said.

[142] Mr. Papineau saw one of Dr. Romero-Sierra’s colleagues, Dr. Whalen, about a rash, on May 2, 2011. Mr. Papineau said he had rashes all over his body at the time. He said he was worried about Lyme disease at that time but that he also had the conclusion in his head that the Lyme disease had been taken care of and there was something else going on. At his 2014 examination for discovery, Mr. Papineau had said he saw Dr. Whalen just a few days after being treated by Dr. Brisebois, and that the rash he brought to Dr. Whalen was the same rash Dr. Brisebois had seen. On cross-examination at trial, Mr. Papineau said he was mistaken about the dates.

[143] Mr. Papineau said that throughout the third quarter of 2011 he was feeling very unwell. He said that during this period, he asked Dr. Romero-Sierra about Lyme disease many, many times and that many, many times, Dr. Romero-Sierra reassured him that he did not have it.

[144] Mr. Papineau said he went to hospital emergency departments many times in late 2011. This evidence is supported by his medical records. Mr. Papineau’s predominant complaint during this period was chest pain. A note dated November 6, 2011 from the Queensway Carleton Hospital referred to Mr. Papineau as being “extremely anxious, voicing concerns, wanting answers as to why he has this pain.” None of the hospital records from this period mentions a tick bite or concerns about Lyme disease. Mr. Papineau said this was because Dr. Romero-Sierra had persuaded him that he didn’t have it.

[145] In an emergency consultation report dated November 6, 2011, a Dr. Iyengar wrote that he had been asked to see Mr. Papineau because of chest pain. Dr. Iyengar said that on the two previous occasions Mr. Papineau had been seen in the emergency room, he showed a completely normal workup, including negative cardiac enzymes, and was discharged home. Dr. Iyengar said that Mr. Papineau had been continuing to work and had not needed time off. Mr. Papineau said that wasn’t true, and he had in fact been taking time off work. Mr. Papineau agreed that under past medical history, Dr. Iyengar had not written anything about a tick bite or Lyme disease.

[146] Mr. Papineau said he specifically remembers an occasion in late 2011 when he was lying on a couch at his sister’s house, surrounded by his mother, his sister and Ms. Charlebois, and he told his mother he was dying. He described this as one of his “defining moments.”

[147] Mr. Papineau said that Dr. Romero-Sierra never asked him to obtain the April 2010 records from the KDH and they never discussed these records. Mr. Papineau said he himself did not know the KDH records existed before the trial began.

[148] Mr. Papineau said that Dr. Romeo-Sierra referred him to a psychiatrist, Dr. Dimock, and that he saw Dr. Dimock on December 8, 2011. Mr. Papineau said he only saw Dr. Dimock once. Mr. Papineau said that Dr. Romero-Sierra referred him to Dr. Dimock because Mr. Papineau was complaining so much about not feeling well. Mr. Papineau said Dr. Dimock did not give him a diagnosis. Mr. Papineau said he was perfectly fine mentally.

[149] Mr. Papineau saw a cardiologist, Dr. Maranda, on January 20, 2012. In a report, Dr. Maranda described Mr. Papineau as a businessman/entrepreneur. Dr. Dimock said that Mr. Papineau had a fairly active lifestyle and that he had been exercising regularly to a very high workload without problems. Dr. Maranda said that Mr. Papineau had had chest discomfort while driving in November and that Mr. Papineau had said that it was a very stressful period for him with family issues, including a divorce. Dr. Maranda said that a review of Mr. Papineau’s symptoms was entirely unremarkable. Mr. Papineau’s stress test was clinically and electrically negative for ischemia. Dr. Maranda concluded that Mr. Papineau’s chest discomfort was fairly atypical and likely stress related.

[150] Mr. Papineau agreed that Dr. Maranda had reassured him that he was not having heart issues and that there was no reference to a tick or Lyme disease in Dr. Maranda’s report.

[151] Also in early 2012, Dr. Romero-Sierra ordered a testosterone test for Mr. Papineau. Mr. Papineau said he had had a previous testosterone test in 2008, and Dr. Romero-Sierra had told him his testosterone level was so high he would have thought Mr. Papineau was on steroids. Mr. Papineau said the test results came back in April 2012 and Dr. Romero-Sierra told him that the results were “normal.” Mr. Papineau said he wondered what was wrong with him, because he was losing body mass and feeling progressively worse. He asked Dr. Romero-Sierra for his test results, and, after doing some research on the internet, concluded that his testosterone reading was only normal for a 90-year-old. Mr. Papineau said he went back to Dr. Romero-Sierra, who referred him to a urologist. Mr. Papineau was very upset with Dr. Romero-Sierra for having told him his testosterone level was normal.

[152] Mr. Papineau was seen by urologist Dr. Matthew Roberts. Mr. Papineau said that Dr. Roberts confirmed that his testosterone level was not normal for someone his age. Mr. Papineau began to take weekly testosterone replacement injections, which eventually raised his testosterone level to normal.

[153] Mr. Papineau described a May 15, 2012 visit to the emergency department at the Civic Campus of the Ottawa Hospital as being another of the “defining moments” in his story. He said he had a very, very good recollection of that day. Mr. Papineau said he told a triage nurse that he felt generally unwell, that he had aches and pains and that he was also having brain fog issues. He said he had some chest discomfort. Mr. Papineau said the triage nurse said, “[a]re you sure you don’t have Lyme disease?”

[154] Mr. Papineau said he felt incredible anger because he had been trying to tell people he had Lyme disease for a long time, and here was someone who didn’t even know him, asking him about it. Mr. Papineau said he did not tell the nurse that he had been bitten by a tick before the nurse asked him the question; he had only talked about his symptoms.

[155] In his examination in chief, Mr. Papineau said he did not have a clear recollection of the treatment he received at the hospital on that occasion. He said he thought they did a series of tests, and they might have drawn blood for a Lyme disease test, but he could not recall. Mr. Papineau said he was told to follow up with his doctor if he had any issues and to return to the hospital if he had any problems.

[156] On cross-examination, Mr. Papineau was asked about two hospital records from that day. An emergency report said, “tick bite 18 months ago Brockville with rash right arm”, “multiple tests GP”, “hasn’t been tested Lyme.” Mr. Papineau said he had “zero idea” how the reference to 18 months ended up on the record. Mr. Papineau said he only had a tick embedded in him once and it was in April of 2010. Mr. Papineau said he had a tick on him another time, but it was not embedded in him. Mr. Papineau said he would have told the people at the hospital that the tick bite was in April of 2010, not 18 months earlier.

[157] Mr. Papineau was then shown an emergency nursing flow sheet from the May 15, 2012 hospital visit. It included a note that said: “Bit by one tick last November, has tick on iPhone.” On cross-examination, Mr. Papineau said he had a “100 per cent memory that I’ve never told anybody that I’ve been bitten by a tick in November. That’s the memory I have.” Mr. Papineau was not asked about the reference to the tick being on his iPhone.

[158] Mr. Papineau said he next saw Dr. Romero-Sierra on June 4, 2012. Mr. Papineau said Dr. Romero-Sierra told him the Ottawa Hospital had run some blood tests following his May 15, 2012 visit and that he had tested negative for Lyme disease. Mr. Papineau said he didn’t believe it.

[159] Mr. Papineau said he began to do some research and he learned about company in California called IGeneX that tests for Lyme disease. He said a referral from his family doctor was required and that Dr. Romero-Sierra gave him the referral. At the same time, Mr. Papineau started to look for Lyme disease specialists in the United States. He found Dr. Maureen McShane, whose practice was located in Plattsburgh, N.Y.

[160] Mr. Papineau said he is sure that he did not start researching labs or American Lyme specialists until June 12, 2012. He said he began his research the day after his daughter’s birthday, which was June 11, 2012. Mr. Papineau described this as another of the “defining moments” in his story. Mr. Papineau said that because he did not start his research until June 12, 2012, he did not understand how Dr. Romero-Sierra could have on his chart a note dated June 1, 2012 that described a conversation with Mr. Papineau about blood testing in the United States. On cross-examination, Mr. Papineau agreed that he must have started his research into testing and American specialists before June 1, 2012, because he had received an email from Dr. McShane’s office on May 24, 2012.

[161] Mr. Papineau said that later that summer, Dr. Romero-Sierra contacted him and told him the IGeneX test results came back, and that they were negative. Mr. Papineau said that he was at a loss. He did not know what was wrong with him.

[162] Mr. Papineau arranged to meet with Dr. McShane at her office in Plattsburgh, N.Y. on September 12, 2012. He said that on his way to meet with Dr. McShane, he picked up a copy of the IGeneX report from Dr. Romero-Sierra. He said he looked at the report for the first time while waiting to cross the border into the United States. He said this was another of his defining moments. He saw a reading that was “equivocal” and others that were “positive.” He said he was shocked.

[163] Mr. Papineau said that when he met with Dr. McShane, he went through his full history with her. He told her when he was bitten and explained how he had been feeling. He said he gave Dr. McShane the IGeneX test results. Mr. Papineau said that Dr. McShane gave him a thorough physical examination that was unlike any examination Dr. Romero-Sierra had ever done.

[164] Mr. Papineau said he showed Dr. McShane a photograph of his rash and that she told him it “absolutely” was a tick bite mark and “absolutely” was the rash associated with Lyme disease.

[165] Mr. Papineau said he felt good about that. He said he had a very satisfactory meeting with Dr. McShane and Dr. McShane was very thorough and a “great lady.”

[166] Mr. Papineau said Dr. McShane told him he had Lyme disease with Babesia and Bartonella co-infections. Mr. Papineau said Dr. McShane told him she would prescribe antibiotics and that he would be required to have his blood tested regularly to make sure he did not develop liver or kidney problems. Mr. Papineau said Dr. McShane told him that he would also be required to change his diet.

[167] Mr. Papineau said Dr. McShane told him that she based her diagnosis of Lyme disease on the following facts, which he had provided to her: (1) that he had been bitten by a tick; (2) that he had seen the tick; and (3) that he had the rash. Mr. Papineau said that Dr. McShane told him the IGeneX test results had not been a deciding factor in her diagnosis, although she said they confirmed that he had Lyme disease.

[168] Mr. Papineau said that Dr. McShane gave him a report and a series of prescriptions to give to his family doctor. She explained that she could not give him prescriptions he would be able to fill in Canada, so he would have to ask his family doctor to rewrite them.

[169] Mr. Papineau said he saw Dr. Romero-Sierra the following day, September 13, 2012. Mr. Papineau recorded their meeting. Mr. Papineau said he did this because he did not believe that Dr. Romero-Sierra was acting in his best interests, particularly as Dr. McShane had told him that he had Lyme disease and that he had not been treated properly. Mr. Papineau said he was angry. He felt he should not have been required to do so much work himself in order to be diagnosed. Mr. Papineau said he wanted proof of exactly what was said in his meeting with Dr. Romero-Sierra. Mr. Papineau did not tell Dr. Romero-Sierra the meeting was being recorded.

[170] The recording included the following exchanges between Mr. Papineau and Dr. Romero-Sierra:

Mr. Papineau can be heard telling Dr. Romero-Sierra that he met with the Lyme specialist in Plattsburgh and that the Lyme test Dr. Romero-Sierra had told him was negative was positive.

Mr. Papineau says the American doctor told him the first time he walked in with the “EM” (erythema migrans) on his arm, he should have had antibiotics right then and there and if he had, he wouldn’t have suffered the way he has.

Dr. Romero-Sierra responds by telling Mr. Papineau that he never saw Mr. Papineau with a rash. Dr. Romero-Sierra tells Mr. Papineau it was Dr. Whalen who saw and documented the rash, and “it wasn’t EM.” Mr. Papineau replies that he had thought it was Dr. Romero-Sierra who saw him with the rash.

Mr. Papineau says: “I come in here and go, I got bit by a tick that the dog in the same yard has Lyme disease, and I have a big red rash on my arm. No you don’t have Lyme disease.” Dr. Romero-Sierra does not reply to this, although he later repeats that Dr. Whalen saw and documented the rash Mr. Papineau had when Dr. Whalen saw him.

Dr. Romero-Sierra tells Mr. Papineau that “on every step of this…I have called infectious disease.” Dr. Romero-Sierra tells Mr. Papineau that “infectious disease” told him he does not have Lyme disease.

Dr. Romero-Sierra asks Mr. Papineau what he wants Dr. Romero-Sierra to do. Dr. Romero-Sierra says he is willing to whatever Mr. Papineau wants him to do. Dr. Romero-Sierra asks Mr. Papineau if he wants a referral to an infectious disease specialist. Mr. Papineau says no.

Dr. Romero-Sierra tells Mr. Papineau that he does not believe that Mr. Papineau has Lyme disease, “according to right here, and me practising medicine and using the specialists that I have at my disposal.”

[171] It appears from the recording that Mr. Papineau then handed Dr. Romero-Sierra the prescriptions Dr. McShane had instructed Mr. Papineau to ask his family doctor to rewrite. Dr. Romero-Sierra asks Mr. Papineau whether Dr. McShane would be following him as well. Dr. Romero-Sierra tells Mr. Papineau that the medications he is asking for can make him really, really sick. Dr. Romero-Sierra says he has been “playing outside the box” and he will continue to do so by giving him the medication, but Mr. Papineau needs to understand that they can make him really sick.

[172] Mr. Papineau tells Dr. Romero-Sierra he is scared but that Dr. McShane told him she had been a doctor a long time and that he should ask his family doctor whether, if they hadn’t given so many antibiotics to tuberculosis people back in 20s, the disease would have been eradicated. Dr. Romero-Sierra replies that it hasn’t been eradicated and that it’s coming back.

[173] Dr. Romero-Sierra tells Mr. Papineau that the drugs Dr. McShane has prescribed can give him C. difficile or anemia and that they can kill him. Mr. Papineau says he knows that but it, presumably referring to Lyme disease, has made his life horrible, and it’s only getting more horrible. Mr. Papineau tells Dr. Romero-Sierra that he has tested him to death. He tells Dr. Romero-Sierra he wants him to explain how not to kill himself or get C. difficile. Dr. Romero-Sierra agrees to prepare the prescriptions for him.

[174] Mr. Papineau tells Dr. Romero-Sierra he had taken all kinds of antidepressants when he didn’t need them. Mr. Papineau says it was embarrassing that a vet could diagnose a dog with Lyme disease in eight minutes, but we argue about whether a human being has it. Mr. Papineau says they were talking about something that was 100 per cent politically motivated and that the government doesn’t acknowledge that anyone has Lyme disease.

[175] Mr. Papineau picked up the prescriptions from Dr. Romero-Sierra and did not see Dr. Romero-Sierra as a patient again. Mr. Papineau said he had issues with the way Dr. Romero-Sierra had dealt with his testosterone issue. He also was not happy that Dr. Romero-Sierra had told him the IGeneX test was negative. He had issues with Dr. Romero-Sierra not wanting to look at the paperwork he had brought back from Dr. McShane. He also was not happy that Dr. Romero-Sierra had given him the prescriptions Dr. McShane had written without a treatment plan. Mr. Papineau said that, at that point, their relationship was done.

[176] On September 13, 2012, Mr. Papineau filled prescriptions for the following medications: doxycycline, 100mg; metronidazole, 250mg; hydroxychloroquine sulfate, 200 mg and clarithromycin, 500 mg.

[177] Mr. Papineau said he is very happy with his new family doctor, Dr. Alexandra Roy, who worked closely with Dr. McShane while he was taking the medications Dr. McShane prescribed by rewriting Dr. McShane’s prescriptions and monitoring Mr. Papineau’s bloodwork. Mr. Papineau explained that Dr. McShane had a protocol in place to monitor his liver and his kidneys and that at times she instructed him to stop taking the prescriptions but that he would start again once the number stabilized.

Dr. Romero-Sierra’s evidence

[178] Dr. Romero-Sierra has a medical degree from Queen’s University. He did residency training in family medicine through McGill University and was licensed to practise medicine in Ontario in 1998. After he received his licence to practise, he worked with the National Defence Medical Centre in Ottawa. He began to work in a private medical practice in Stittsville, Ontario in 1999. Dr. Romero-Sierra continued to work at this practice in 2010 to 2012, the time period most relevant to Mr. Papineau’s action against him.

[179] Dr. Romero-Sierra said he began to see Mr. Papineau as a patient in 2002. He was Mr. Papineau’s primary physician. Dr. Romero-Sierra said that on average he saw his patients once or twice a year, but he saw Mr. Papineau much more frequently.

[180] The first time Dr. Romero-Sierra saw Mr. Papineau after Dr. Brisebois saw him at the KDH was on July 6, 2010. Dr. Romero-Sierra said that, at that time, Mr. Papineau complained of nasal congestion, discharge, fever and chills. Dr. Romero-Sierra diagnosed Mr. Papineau with sinusitis, prescribed medication and told him to return to the clinic as needed. Dr. Romero-Sierra said that Mr. Papineau did not tell him that he had been bitten by a tick or that he had been seen at the KDH. Dr. Romero-Sierra said that if Mr. Papineau had told him he had been bitten by a tick, he would have documented it. Dr. Romero-Sierra said a tick bite would have been pertinent and significant information.

[181] Dr. Romero-Sierra’s next visits with Mr. Papineau were on July 20, 2010 and then on January 21, 2011. Dr. Romero-Sierra said there was no mention of a tick bite or Lyme disease on either occasion. Dr. Romero-Sierra said if there had been, he would have documented it.

[182] Dr. Romero-Sierra was asked about a May 2, 2011 record of Dr. Whalen. Dr. Romero-Sierra said that Dr. Whalen was a family physician and a colleague. Dr. Romero-Sierra said that Dr. Whalen had treated Mr. Papineau for a rash on the back of his hands and feet. Dr. Romero-Sierra said it appeared that Dr. Whalen prescribed antihistamines, reassured Mr. Papineau and recommended that Mr. Papineau follow up in one month.

[183] Dr. Romero-Sierra saw Mr. Papineau in May, June and October 2011 for various reasons. He said that Mr. Papineau did not mention a tick bite or Lyme disease. He said he did not see any references to Lyme disease or a tick bite in the notes or reports of any physicians who saw Mr. Papineau, such as Dr. Whalen or Dr. Matyas. Dr. Romero-Sierra said his overall impression of Mr. Papineau during this period was that he was clinically stable. Dr. Romero-Sierra said the concerns he had about Mr. Papineau’s health during this period were anxiety and his blood pressure, but that he felt that these conditions were being monitored and treated appropriately.

[184] When Mr. Papineau came to see Dr. Romero-Sierra on November 3, 2011, Mr. Papineau complained of on-going anxiety and a poor mood. Dr. Romero-Sierra diagnosed Mr. Papineau with major depression and anxiety. Dr. Romero-Sierra gave Mr. Papineau a prescription for depression and anxiety, provided supportive counselling and told Mr. Papineau to return in two weeks or as needed.

[185] Dr. Romero-Sierra said he received an emergency consultation report of Dr. Iyengar dated November 6, 2011, which showed that Mr. Papineau had been assessed in hospital several times and had a test scheduled to rule out cardiac concerns. The report said that Mr. Papineau continued to work and had not needed time off. The report said a review of systems was otherwise unremarkable. Dr. Iyengar’s report noted that Mr. Papineau had said that he had “a very good follow up with his general practitioner”. Dr. Romero-Sierra said that Dr. Iyengar’s report did not say anything about Lyme disease or a tick bite.

[186] When Dr. Romero-Sierra saw Mr. Papineau on November 29, 2011, he noted that Mr. Papineau was “+ +” anxious. Dr. Romero-Sierra spent 40 minutes with Mr. Papineau that day and diagnosed major depression. Dr. Romero-Sierra recommended that Mr. Papineau consult a psychiatrist, Dr. Dimock, who worked in the same clinic as Dr. Romero-Sierra.

[187] Dr. Romero-Sierra’s note of November 29, 2011 includes the first reference to Lyme disease in his chart. The note read “Lyme DS screen on request.” Dr. Romero-Sierra said Mr. Papineau had requested a Lyme disease test that day. Dr. Romero-Sierra said he would have given Mr. Papineau a requisition for a screen for Lyme disease. Dr. Romero-Sierra did not have a copy of the requisition. He said that, at the time, copies of requisitions given to patients were not kept on the patient’s chart, although they are now.

[188] Dr. Romero-Sierra said he did not talk to Mr. Papineau about Lyme disease that day. He said his note about the request for the test was at the bottom of his notes for that day, which meant that Mr. Papineau requested the test at the end of the appointment. Dr. Romero-Sierra said he did not believe that any of Mr. Papineau’s symptoms could have been caused by Lyme disease. He said there was no clinical history to suggest Lyme disease and no reason to suspect Lyme disease. Dr. Romero-Sierra said that Mr. Papineau had seen several doctors over the years, and none had noted a tick bite or Lyme disease. Dr. Romero-Sierra said that it was not unusual for his patients to ask for a Lyme disease test, and he would often requisition one for them, because they found the negative result reassuring.

[189] There was no evidence that Mr. Papineau underwent a test for Lyme disease at this time.

[190] On December 30, 2011, Mr. Papineau met with Dr. Romero-Sierra and complained of depression and anxiety. Mr. Papineau said he was dealing with three different court cases, one involving a contractor, one with his business partner and one with his ex-wife.

[191] On February 9, 2012, Dr. Romero-Sierra received a report from cardiologist, Dr. Maranda, which concluded that Mr. Papineau’s chest discomfort was fairly atypical and likely stress related. There was no evidence of ischemia. There was no reference to Lyme disease or a tick bite in Dr. Maranda’s report.

[192] Dr. Romero-Sierra’s notes from an appointment in March 2012 referred to aches and pains, swelling hands and feet and somatization. Dr. Romero-Sierra said his impression was that Mr. Papineau’s sensation of aches and pains at the time was caused by somatization, linked to anxiety. Dr. Romero-Sierra said that Mr. Papineau reported poor mood, decreased interest and decreased libido. Dr. Romero-Sierra said that although decreased libido is common among people suffering from anxiety and depression, he ordered a testosterone test. Dr. Romero-Sierra said he would have given Mr. Papineau a requisition for the test. He did not have a copy of the requisition.

[193] Later in March 2012, Dr. Romero-Sierra reviewed the results of Mr. Papineau’s testosterone test. Mr. Papineau’s reading was 4.1. The normal range, according to the lab report, was 2.0 to 15.4. Dr. Romero-Sierra said he had concerns about Mr. Papineau’s symptoms, but the test results were relatively reassuring. When Dr. Romero-Sierra next saw Mr. Papineau on April 3, 2012, he referred Mr. Papineau to a urologist. Dr. Romero-Sierra said that although Mr. Papineau’s testosterone level was in the normal range, it had dropped from his previous level. Dr. Romero-Sierra made a note that day that Mr. Papineau told him that he believed that “100 per cent of his symptoms were due to decreased testosterone.”

[194] Dr. Romero-Sierra’s chart included a report dated April 12, 2012 from a urologist, Dr. Roberts. Dr. Roberts wrote that Mr. Papineau had experienced many stressors over the past 18 months, including a divorce and a failed business, which had led him to develop depression. Dr. Roberts wrote that Mr. Papineau described a 12-month history of decreased energy, decreased libido and a decreased interest in activities, including sports. Under past medical history, Dr. Roberts referred to hypertension and depression. The report did not mention a tick bite or Lyme disease. Dr. Roberts wrote that Mr. Papineau would be starting testosterone replacement therapy.

[195] On May 16, 2012, Dr. Romero-Sierra received the report from Mr. Papineau’s May 15, 2012 attendance at the emergency department of the Ottawa Hospital. The report indicated that Mr. Papineau had complained of chest pain. The report also stated: “Tick bite 18 months ago Brockville with rash R arm multiple tests GP—hasn’t been tested Lyme.”

[196] Dr. Romero-Sierra said that this was the first reference to a tick bite that he had seen in any of Mr. Papineau’s records.

[197] On May 18, 2012, Dr. Romero-Sierra received the results of an “ELISA” Lyme disease test for Mr. Papineau. Dr. Romero-Sierra noted that Mr. Papineau’s result was “non-reactive” for Lyme IgG/IgM EIA and that there was “[n]o serological evidence of infection” for “Borrelia burgdorferi (Lyme Disease.)”

[198] Dr. Romero-Sierra said his opinion at that time was that Mr. Papineau did not have Lyme disease. He said his opinion was based not only on the negative test but on Mr. Papineau’s clinical history. Dr. Romero-Sierra said that by May of 2012, he been following and treating Mr. Papineau for 10 years.

[199] Dr. Romero-Sierra had a note in his chart dated June 1, 2012 that referred to a discussion with “on-call infectious disease” at the Civic Hospital. It referred to a negative Lyme test, an apparent tick bite with a rash and a dog with Lyme disease. It said the dog had been in same vicinity as the patient. The note said “ID” [infectious disease] does not think patient has Lyme. The note referred to a private test in the United States that was not recognized by the CDC or here. The note also read: “? patient & see.” and said it had been discussed with Dr. Evans and Dr. Watson.

[200] Dr. Romero-Sierra said he had been discussing a private Lyme disease test that Mr. Papineau had requested. This suggests that the June 1, 2012 note was misdated. Mr. Papineau asked Dr. Romero-Sierra about a private test for Lyme disease but does not appear to have done so before June 4, 2012. Dr. Romero-Sierra acknowledged that his June 1, 2012 note had the wrong date on it.

[201] Dr. Romero-Sierra’s notes of his June 4, 2012 visit with Mr. Papineau appear in two different places in his chart. Dr. Romero-Sierra explained that he started the note on a page that was dated-stamped but he ran out of room and continued on another page which he dated by hand. The note said that Mr. Papineau was convinced he has Lyme disease and that Mr. Papineau told Dr. Romero-Sierra “there is nothing wrong with his head” and “medical system is fucked.” The note indicates that Mr. Papineau told Dr. Romero-Sierra he wanted to have a test at a private lab.

[202] Dr. Romero-Sierra met with Mr. Papineau on June 21, 2012. According to Dr. Romero-Sierra’s note of the visit, Mr. Papineau told Dr. Romero-Sierra that in Canada, doctors don’t know anything and “college telling doctors to not treat Lyme disease.” Mr. Papineau told Dr. Romero-Sierra that he wanted testing in Plattsburgh and California. Dr. Romero-Sierra’s note indicates that Mr. Papineau did not want a referral to an infectious disease or internal medicine specialist or to psychiatry. Dr. Romero-Sierra’s note referred to a prescription for “doxy” 100 mg for 21 days. He said it was an antibiotic for treating Lyme disease. Dr. Romero-Sierra said he did not think that Mr. Papineau had Lyme disease but hoped that the prescription would help him with his on-going symptoms.

[203] There was no evidence that such a prescription was given to Mr. Papineau at this time.

[204] Dr. Romero-Sierra later received lab results from IGeneX in Palo Alto, California. Dr. Romero-Sierra said he spoke to an on-call infectious disease specialist with the Ottawa Hospital about these results on July 27, 2012, and made a note of the call on the lab report. Dr. Romero-Sierra said he remembered the call because it was an unusual case. He said he went through the case with the infectious disease specialist to make sure he wasn’t missing anything and would have discussed the lab results. His note dated July 27, 2012 indicated that he had spoken with an on-call infectious disease specialist and said “no Lyme.”

[205] Dr. Romero-Sierra said he also met with Mr. Papineau on July 27, 2012. His note said, “all testing negative to date.” They discussed somatization. Dr. Romero-Sierra said he would have told Mr. Papineau that it was common to have aches and pains and often when you have pressure and anxiety, these aches and pains become less tolerable.

[206] Dr. Romero-Sierra had another copy of the IGeneX test results in his file with a note reflecting a call to infectious diseases at the Ottawa Hospital. The document appears to have been dated-stamped August 7, 2012 or August 17, 2012. Dr. Romero-Sierra said he wanted to make sure he was on the right track. He said he would have talked about the IGeneX test and also the negative ELISA test Mr. Papineau had had earlier.

[207] Dr. Romero-Sierra’s note of the September 13, 2012 meeting Mr. Papineau had recorded said that Mr. Papineau was being convinced that he had Lyme disease and that he was somewhat agitated. The note said that Mr. Papineau was being seen by a doctor in Plattsburgh. Dr. Romer-Sierra wrote: “Convinced he needs prescription”; “dangers including liver failure, C. difficile, aplastic anemia (bone marrow failure) and possibly death discussed”; and “patient wishes to proceed. Anxiety over Lyme diagnosis.” Dr. Romero-Sierra said he did not know that Mr. Papineau was recording their September 13, 2012 meeting.

The cross-examination of Dr. Romero-Sierra

[208] Dr. Romero-Sierra was cross-examined at length about the notes in his chart. Dr. Romero-Sierra said that, in his view, the requirements of the College of Physicians and Surgeons of Ontario in respect of charting are impossible to achieve, particularly in the environment in which he practises. He said that he would be the first to admit that his notes were not perfect, but that he documented “pertinent positives” and continually updated his chart on an ongoing basis. Dr. Romero-Sierra said that if Mr. Papineau had ever mentioned Lyme disease, he would have made a note in his chart. He said that mentioning a tick bite was like mentioning a heart attack; you would write it down.

[209] Dr. Romero-Sierra agreed on cross-examination that the June 1, 2012 note in his chart was misdated. Dr. Romero-Sierra said he did not see Mr. Papineau on June 1, 2012. Mr. Papineau’s lawyer suggested to Dr. Romero-Sierra that he had changed his evidence about the date of the June 1, 2012 note because he knew he had been caught in a lie because Mr. Papineau had been able to prove that Dr. Romero-Sierra had not called the infectious disease department at the Civic on June 1, 2012. Dr. Romero-Sierra said these suggestions were incorrect. He said that Mr. Papineau had told him about a tick bite and the dog with Lyme disease around late May or early June 2012. He conceded that he must have had a discussion with Mr. Papineau that he failed to record.

[210] Mr. Papineau’s lawyer later revisited Dr. Romero-Sierra’s June 1, 2012 note, suggesting that the wording in the note was more detailed and in better penmanship than Dr. Romero-Sierra’s other notes and that he had written the words “dog was in same vicinity as patient” because he had taken them from the KDH emergency room record, in which the triage nurse had written, “dog in the vicinity has Lyme disease.” Mr. Papineau’s counsel suggested that Dr. Romero-Sierra had then destroyed the KDH records, because they showed that Mr. Papineau had been concerned about Lyme disease all along. Mr. Papineau’s counsel suggested that Dr. Romero-Sierra had access to the clinic where he worked and had both “motive and opportunity” to alter his notes, because he knew his charting was deficient and he wanted to protect himself from liability. Dr. Romero-Sierra denied all of these allegations, describing them as “grotesque.”

[211] Dr. Romero-Sierra confirmed that he did not have a copy of the KDH records. He agreed that he had the records from 14 other emergency room attendances by Mr. Papineau, but not the records from the KDH.

[212] Dr. Romero-Sierra was asked about two notes dated June 4, 2012, which appeared in two different places in his chart. Mr. Papineau’s lawyer suggested that the first note Dr. Romero-Sierra wrote that day was deficient and that he had later written a better note for that day and inserted it elsewhere in the file. Mr. Papineau’s lawyer said that because Dr. Romero-Sierra’s pages were not numbered, there was no way of determining whether Dr. Romero-Sierra had added a page later. Dr. Romero-Sierra, who had his original chart with him (this was a virtual trial, so he and Mr. Papineau’s lawyer were not in the same building), said there was stamping on the opposite side of the page and that the note in question fit in with everything else.

[213] In respect of the November 29, 2011 meeting with Mr. Papineau, when Mr. Papineau requested the Lyme screening test, Dr. Romero-Sierra denied that he had failed Mr. Papineau by not asking Mr. Papineau why he wanted the test. Dr. Romero-Sierra said that Mr. Papineau did not have a problem communicating, that he had freely communicated with Dr. Romero-Sierra for 10 years at that point and, that if he had been bitten by a tick, he could have told Dr. Romero-Sierra about it at any time, including their next visit. Dr. Romero-Sierra said Mr. Papineau had never said anything to him about being bitten by a tick. Dr. Romero-Sierra also said that Lyme disease was not Mr. Papineau’s presenting complaint that day. He said that Lyme disease was “low, low, low” on the differential scale because there was no history of a tick bite. Dr. Romero-Sierra said the patient requested a Lyme screen, and even though the probability of the patient having Lyme disease was very low, he gave the patient the requisition. Dr. Romero-Sierra described Mr. Papineau’s request for the Lyme test that day as “an asterisk”, a request made after an appointment and probably as the patient was walking out of the room.

[214] Dr. Romero-Sierra denied that Lyme disease was “on the radar” at this point. He said that he documented the request for the test because Lyme disease is a serious condition. He said if he had been clinically suspicious, he would have followed up with Mr. Papineau.

[215] Dr. Romero-Sierra said that when he next saw Mr. Papineau on December 8, 2011, neither mentioned Lyme disease. Dr. Romero-Sierra said that Mr. Papineau did not bring it up and he did not ask Mr. Papineau about it; he reiterated that a clinical suspicion of Lyme disease was not present.

[216] Mr. Papineau’s lawyer suggested to Dr. Romero-Sierra that he had never called the infectious disease department at the Ottawa Hospital and that he had made up what he said the infectious disease specialists had told him, to cover up his negligence. Dr. Romero-Sierra denied this and said he had spoken with two or three infectious disease specialists in the relevant time period. Dr. Romero-Sierra agreed that he did not record the names of the infectious disease specialists he spoke with or the length of the discussions. He said he did record what the specialists told him. Dr. Romero-Sierra said the specialists told him that based on what he had told them, Lyme disease was ruled out and that they would be happy to see the patient.

[217] Dr. Romero-Sierra denied that he had ever suggested that the infectious disease specialists had told him to prescribe the medications Dr. McShane had prescribed. Dr. Romero-Sierra pointed out that he did not find out about Dr. McShane’s prescriptions until September 2012, and he had spoken with the infectious disease specialists earlier. Dr. Romero-Sierra said he did have a discussion with an infectious disease specialist about prescribing doxycycline for Mr. Papineau. Dr. Romero-Sierra said he felt the discussion was documented, in that his note dated June 1, 2012, which he now believes was misdated, said “ID discussed test in private”, “not recognized by CDC or here” and “query, treat patient & see discussed.”

[218] Dr. Romero-Sierra agreed that he had not billed OHIP for his calls to the infectious disease specialists. He said that, at the time, physicians were not aware that they could bill for these calls, although they called specialists all the time to discuss cases if they were unsure.

[219] Dr. Romero-Sierra agreed that he spoke with his colleagues Dr. Evans and Dr. Watson about Mr. Papineau’s case. He said they supported his plan to treat Mr. Papineau with doxycycline. Dr. Romero-Sierra said he believed he would have told Dr. Evans and Dr. Watson what the infectious disease specialists at the Ottawa Hospital had told him.

[220] Dr. Romero-Sierra admitted that he agreed to rewrite the prescriptions Dr. McShane had given to Mr. Papineau, even though he did not believe that Mr. Papineau had Lyme disease. Dr. Romero-Sierra said he did this because Mr. Papineau believed that he had Lyme disease, and Dr. Romero-Sierra believed, having followed Mr. Papineau for 10 years, that prescribing the medication would help his clinical condition. Dr. Romero-Sierra denied that he prescribed the medications as a placebo; he said a placebo is a sugar pill and he had prescribed the medication as a “therapeutic alliance” in the hope the patient would get better. Dr. Romero-Sierra was reminded that at his examination for discovery in February 2014, he had said that he had prescribed the medications for Mr. Papineau as a placebo. Dr. Romero-Sierra said he had not recalled saying that and repeated that a placebo is a sugar pill and the medications he prescribed were not sugar pills.

[221] Mr. Papineau’s counsel accused Dr. Romero-Sierra of fraudulently billing OHIP, because on September 13, 2012, the visit Mr. Papineau had recorded, Dr. Romero-Sierra had spent only 20 minutes with Mr. Papineau but had billed OHIP for 30 minutes. Dr. Romero-Sierra explained that, to bill for 30 minutes of counselling, a physician must personally spend at least 20 minutes with the patient, and that he had done so. Dr. Romero-Sierra agreed, however, that he should have been recording the start and end time of his sessions and that he had not been doing so at that time.

The evidence of Mr. Papineau’s standard of care expert, Dr. Haggblad, in respect of Dr. Romero-Sierra

[222] Dr. Haggblad gave evidence in respect of the standard of care expected of Dr. Romero-Sierra as well as of Dr. Brisebois.

[223] Dr. Haggblad said he did not find fault with Dr Romero-Sierra’s care of Mr. Papineau before the end of November 2011. Dr. Haggblad said he then had two primary issues with Dr. Romero-Sierra’s care of Mr. Papineau: (1) Dr. Romero-Sierra’s failure to take a proper history on November 29, 2011 to find out why Mr. Papineau requested a Lyme disease test that day; and (2) That Dr. Romero-Sierra rewrote Dr. McShane’s prescriptions for Mr. Papineau when Dr. Romero-Sierra did not believe that Mr. Papineau had Lyme disease.

[224] Dr. Haggblad assumed (correctly) that on November 29, 2011, when Mr. Papineau requested a Lyme screening test, Dr. Romero-Sierra did not ask Mr. Papineau why he wanted the test. Dr. Haggblad said that to meet the standard of care, Dr. Romero-Sierra was required to obtain a thorough history. Dr. Haggblad said if someone asks for a test, you can’t just say “okay”, you have to ask why.

[225] Dr. Haggblad said it appeared that Mr. Papineau had not raised the possibility of Lyme disease with Dr. Romero-Sierra until November 29, 2011. Dr. Haggblad said that, in these circumstances, Dr. Romero-Sierra was required to ask the patient what his specific concerns were, whether he had ever been bitten by a tick, whether he had had a rash and whether he had been treated. Dr. Haggblad said that if Dr. Romero-Sierra had asked these questions of Mr. Papineau on November 29, 2011, he undoubtedly would have learned about Mr. Papineau’s visit to the KDH in April 2010.

[226] Dr. Haggblad said that after obtaining all pertinent information from a patient, the physician must decide whether there is a possibility the patient has Lyme disease. If there is such a possibility, the physician should order the screening test. If the physician concludes there is only a very remote chance of Lyme disease, the test should not be ordered. Dr. Haggblad said that ordering a Lyme disease test to address a patient’s anxiety is “highly questionable.”

[227] Dr. Haggblad said that by not asking Mr. Papineau why he requested the Lyme disease test on November 29, 2011, Dr. Romero-Sierra failed to meet the applicable standard of care.

[228] On cross-examination, Dr. Haggblad said it was apparent that Mr. Papineau was a difficult patient, in the sense that he had many issues and complaints, and it was likely challenging to figure out what to do with him at times. Dr. Haggblad said that, in his experience, with this type of patient, a doctor may have to deal with one problem at a time. Dr. Haggblad said that patients like this obviously don’t mind coming to see you, so you say, okay, what is our problem going to be today? And then, if another problem comes up, you say let’s deal with that another day.

[229] Dr. Haggblad agreed that on the day Mr. Papineau requested the Lyme test, November 29, 2011, Dr. Romero-Sierra had been dealing with a different concern, Mr. Papineau’s mental health. Dr. Romero-Sierra had noted that Mr. Papineau’s mother and sister were both taking Cipralex and were both fine. He had also noted that Mr. Papineau was “++ anxious.” Dr. Haggblad agreed that Dr. Romero-Sierra referred Mr. Papineau to a psychiatrist that day and that the referral indicated that Mr. Papineau had depression, anxiety and some OCD. Dr. Haggblad agreed that the problem identified by Dr. Romero-Sierra on November 29, 2011 was anxiety and that Dr. Romero-Sierra dealt with it through the referral.

[230] As he had said in relation to Dr. Brisebois’s care of Mr. Papineau, Dr. Haggblad said a family physician is not required to diagnose Lyme disease. Dr. Haggblad said a family physician must be alive to the possibility that a patient has Lyme disease, take a thorough history, arrange for testing if warranted and, if appropriate, refer the patient to a specialist. Dr. Haggblad said that, at the relevant time, Dr. McShane would have been considered a Lyme disease specialist. He said a patient could also be referred to an infectious disease specialist. Dr. Haggblad agreed that Dr. Romero-Sierra had offered to refer Mr. Papineau to an infectious disease or an internal medicine specialist in June of 2012 but that Mr. Papineau had said he was not interested.

[231] Dr. Haggblad said that in September 2012, Dr. Romero-Sierra should not have prescribed multiple antibiotics to Mr. Papineau on the theory that they would act as a placebo. Dr. Haggblad was referring to the prescriptions for antibiotics Dr. McShane had instructed Mr. Papineau to ask his family doctor to rewrite. Dr. Haggblad agreed that Dr. McShane had already prescribed these medications for Mr. Papineau. He said that, nonetheless, if Dr. Romero-Sierra did not himself agree that they were necessary to treat a condition, prescribing them does not meet the standard of care.

[232] Dr. Haggblad also said that Dr. Romero-Sierra’s notes were quite typical. He said that they were hand-written with lots of shorthand and difficult to read. Dr. Haggblad said it would be nice if they were more complete, but he did not believe that they breached the standard of care.

The evidence of Dr. Romero-Sierra’s standard of care witness, Dr. Stephen McMurray

[233] Mr. Stephen McMurray is a physician who practised family medicine in Brockville from 1985 until just before the pandemic, when he retired his family practice and worked in COVID response. Dr. McMurray had practised emergency medicine in both Brockville and Watertown, N.Y. Dr. McMurray has also worked as an assessor and member of the Quality Assurance Committee of the CPSO.

[234] Dr. McMurray was qualified as an expert in the field of family medicine, capable of giving opinion evidence on the standard of care expected of a physician practising family medicine in Ontario from 2010 to 2012.

[235] Dr. McMurray testified that, in his opinion, Dr. Romero-Sierra met the standard of care in his treatment of Mr. Papineau from 2010 to 2012. Dr. McMurray said that, in his opinion, throughout this period, Dr. Romero-Sierra appropriately investigated and treated Mr. Papineau’s complaints.

[236] Dr. McMurray said that, during this period, no symptom complex or diagnosis would have prompted a family physician to suspect that Mr. Papineau had Lyme disease.

[237] Dr. McMurray said that when considering and arriving at his opinion that Dr. Romero-Sierra met the standard of care in respect of Mr. Papineau’s treatment, he considered Mr. Papineau’s November 29, 2011 request for a Lyme screen. Dr. McMurray said the main focus of the November 29, 2011 visit appeared to be psychotherapy. He observed that Dr. Romero-Sierra did a double counselling session with Mr. Papineau that day and that they talked about Mr. Papineau’s medications and lifestyle. Dr. McMurray said the request for a Lyme screen appeared to be what he would characterize as a “low-level” request. Dr. McMurray said the request appeared to be kind of an “add-on” request following a counselling session. Dr. McMurray said that requests such as this, made at the end of a meeting between a patient and a doctor, are not uncommon. Dr. McMurray said that how a physician handles such a request is a judgment call that would depend on the physician’s relationship with the patient, the physician’s perception of the significance of the investigation that was being ordered and the physician’s expectation that the patient would follow through.

[238] Dr. McMurray also said that prior to computerization of medical records, it was not uncommon not to keep a copy of the requisition for such a test in the patient’s chart. He said the advice would have been to keep a copy but in practice, doing so was fairly uncommon.

[239] In respect of Dr. Romero-Sierra’s chart in general, Dr. McMurray said that although the notes were slightly sparse, they told the story of the patient and, in his opinion, met the standard expected of a family physician at the time and in a similar practice environment.

[240] On cross-examination, Dr. McMurray agreed that it would be below the standard of care for a physician to prescribe medication for a patient if the physician believes the patient does not have the condition the medication is intended to treat. Dr. McMurray agreed that a physician must consider the benefits and risks of a medication for a patient before prescribing it. He also agreed that the standard of care prohibits a doctor from prescribing a pharmaceutical agent as a placebo.

Analysis

[241] I accept, as a general proposition, Dr. Haggblad’s opinion that a physician should not order a diagnostic test without first determining why the patient is requesting the test. The request for a test is clearly an indicator that the patient has a concern. I also accept Dr. McMurray’s opinion that how a physician handles what he described as an “add-on” request from a patient, made at the end of an appointment that had focused on a different topic, is a judgment call that depends on the nature of the request, the physician’s relationship with the patient and other factors.

[242] Mr. Papineau’s request for a Lyme screen was made at the end of a double counselling session in which Mr. Papineau discussed mental health concerns. Dr. Romero-Sierra’s notes referred to depression and “+ +” anxiety. Dr. Romero-Sierra had noted that Mr. Papineau was not suicidal and had given Mr. Papineau a referral to a psychiatrist.

[243] Dr. Romero-Sierra knew Mr. Papineau well and had followed him closely for many years, having treated him since 2002. By November 29, 2011, Dr. Romero-Sierra had met with Mr. Papineau on at least 42 occasions since 2005. Mr. Papineau did not visit Dr. Romero-Sierra at regular intervals, but if he had, this would have worked out to one visit every two months over a seven-year period. Mr. Papineau was not hesitant to make an appointment with Dr. Romero-Sierra or to drop in to see him. Dr. Romero-Sierra said that Mr. Papineau had no difficulty communicating and that he was not hesitant to report any concerns. Dr. Romero-Sierra had provided hours of supportive counselling to Mr. Papineau over the years. Dr. Romero-Sierra had made many referrals for Mr. Papineau over the years. Dr. Romero-Sierra had also read numerous reports from emergency departments and the specialists to whom he had referred Mr. Papineau. Mr. Papineau had not mentioned being bitten by a tick to Dr. Romero-Sierra and there was no reference to a tick bite in any of the reports Dr. Romero-Sierra had read. As of November 29, 2011, Dr. Romero-Sierra had no reason to believe Mr. Papineau had any basis for a concern about Lyme disease.

[244] Dr. Romero-Sierra said that it was not unusual for patients to ask for a Lyme disease test when they were trying to figure out what was wrong with them. He said when he ordered the test, the patient would find a negative test result reassuring.

[245] Although Dr. Haggblad said that ordering a test for a patient because the patient was anxious was highly questionable, he also acknowledged that there are times when a physician will give a patient a requisition for a test the physician knows the patient probably doesn’t need but might find reassuring. Dr. Haggblad was quick to add that this applies to simple blood tests only, that this should not be done on a regular basis that it should not be done when the test is for a serious illness. Dr. Haggblad said a physician should not give a patient a requisition for a Lyme disease test without being sure they know why they’re doing it. He said requesting a test for Lyme disease is like opening a big Pandora’s Box.

[246] In my view, Dr. Romero-Sierra’s decision to give Mr. Papineau the requisition for a Lyme disease test on November 29, 2011, without asking him why he wanted it, was a judgment call he was entitled to make and did not fall below the standard of care in the circumstances. Because Dr. Romero-Sierra had been treating Mr. Papineau for many years and had seen Mr. Papineau many times over the course of those years, he knew Mr. Papineau well and knew of no reason Mr. Papineau’s Lyme test would be positive. Dr. Romero-Sierra had reason to be satisfied that if Mr. Papineau had been bitten by a tick, he would not have kept it a secret. Dr. Romero-Sierra would have had every reason to believe that the Pandora’s Box Dr. Haggblad referred to would remain sealed. The Lyme screen is not an invasive test; it is performed following a regular blood test. Mr. Papineau was suffering from “+ +” anxiety on November 29, 2011. In the past, Dr. Romero-Sierra had found that patients who requested Lyme disease tests when they were worried about what was wrong with them found the negative results reassuring. In my view, Dr. Romero-Sierra made a reasonable judgment call at the end of a 40-minute session with an anxious patient to give the patient a requisition for a test, in the expectation that the result would be negative, and the patient would then have one fewer thing to worry about. Even if Dr. Romero-Sierra had incorrectly assumed that Mr. Papineau could not possibly have Lyme disease, because he gave Mr. Papineau a requisition for the test, he would have had every reason to believe that he would have an opportunity in the near future to discuss the test results with Mr. Papineau, as well as any Lyme disease-related concerns Mr. Papineau had. Mr. Papineau was a patient who consulted him frequently.

[247] Dr. Haggblad had observed that if Dr. Romero-Sierra had asked Mr. Papineau why he wanted the Lyme test, Mr. Papineau undoubtedly would have told Dr. Romero-Sierra about the bite and the rash that had prompted him to go to the KDH emergency department in April 2010, and that this disclosure would have enabled Dr. Romero-Sierra to make further inquiries. This is probably correct, but Dr. Romero-Sierra’s decision-making must be assessed based on the information that was available to him at the time. From Dr. Romero-Sierra’s perspective, the request for a Lyme disease test was coming from a patient he knew well, whom he had seen on a very regular basis since 2002, and who had never said anything previously about a tick.

[248] I accept Dr. Haggblad’s opinion that it was below the standard of care for Dr. Romero-Sierra to have agreed to rewrite Dr. McShane’s prescriptions when he did not believe that Mr. Papineau had Lyme disease. Dr. McMurray gave an opinion that was to the same effect but based on a hypothetical situation. Dr. Romero-Sierra warned Mr. Papineau about the side effects of the medication and sought confirmation that Dr. McShane would be following Mr. Papineau while he took the medications. The fact remains that Dr. Romero-Sierra prescribed medication, albeit medication Dr. McShane had also prescribed, for a condition Dr. Romero-Sierra did not believe Mr. Papineau had; it was medication Dr. Romero-Sierra did not believe Mr. Papineau needed.

[249] There was no objection when Dr. Haggblad and Dr. McMurray gave their opinions about Dr. Romero-Sierra’s decision to rewrite these prescriptions and I inferred that this evidence was introduced in an attempt to discredit Dr. Romero-Sierra in a general sense by calling into question his practice standards or perhaps to suggest that Dr. Romero must have believed that Mr. Papineau did have Lyme disease. Regardless, Mr. Papineau did not plead in his statement of claim that Dr. Romero-Sierra’s alleged negligence included improperly prescribing medication for Lyme disease. Mr. Papineau’s complaints against Mr. Papineau were to the opposite effect: That Dr. Romero-Sierra failed to diagnose and treat Lyme disease and failed to prescribe proper medication. Mr. Papineau was happy to receive the prescriptions Dr. Romero-Sierra wrote and then found a new family doctor in Ottawa who renewed the prescriptions for him, all the while being followed by Dr. McShane in Plattsburgh. Dr. Romero-Sierra’s decision to prescribe these medications was not part of Mr. Papineau’s case against him.

Conclusion with respect to Issue #2

[250] For these reasons, I find that in respect of all matters raised in Mr. Papineau’s claim against Dr. Romero-Sierra, Dr. Romero-Sierra’s treatment of Mr. Papineau did not breach the applicable standard of care.

Issue #3: If Dr. Brisebois or Dr. Romero-Sierra or both defendants breached the applicable standard of care, DID THE BREACH OR breaches cause Mr. Papineau’s alleged loss?

[251] Although I have found that Mr. Papineau has failed to prove that either Dr. Brisebois or Dr. Romero-Sierra breached the applicable standard of care in respect of any matter at issue in his action against them, I will nonetheless consider whether, had Dr. Brisebois or Dr. Romero-Sierra breached the standard of care, their breach or breaches would have caused Mr. Papineau’s alleged loss.

[252] The burden of proving this issue (that a breach of the standard of care caused the alleged loss, or “causation”) is on Mr. Papineau.

The parties’ positions with respect to causation

Mr. Papineau’s position

[253] Mr. Papineau argues that he was bitten by a tick on April 10, 2010, that he had acute Lyme disease when he saw Dr. Brisebois on April 14, 2010, that he subsequently suffered from chronic Lyme disease and that he continues to do so to this date.

[254] Mr. Papineau argues that had Dr. Brisebois treated him properly, his Lyme disease could have been cured.

[255] Mr. Papineau argues that Dr. Romero-Sierra’s neglect resulted in delayed diagnosis of his Lyme disease and contributed to the severity of his condition.

[256] Mr. Papineau relies on the expert opinion of Dr. Ralph Hawkins, who says that Mr. Papineau had acute Lyme disease when he attended the emergency department at the KDH on April 14, 2010.

The position of Dr. Brisebois and Dr. Romero-Sierra

[257] The defendants’ position is that Mr. Papineau has failed to prove causation in that he has not proven that he had Lyme disease.

[258] The defendants argue that to prove causation in respect of Dr. Brisebois, Mr. Papineau must prove that in April 2010, he was bitten by a tick infected with the Borrelia burgdorferi bacterium and that the tick transmitted the bacterium to him. The defendants argue that Mr. Papineau has failed to prove any of these facts.

[259] The defendants argue that in respect of Dr. Romero-Sierra, Mr. Papineau must prove that he had Lyme disease when he was treated by Dr. Romero-Sierra from July 2010 to September 2012. The defendants argue that Mr. Papineau has failed to do so.

[260] The defendants argue that no Canadian physician ever diagnosed Mr. Papineau with Lyme disease. They argue that serological testing, accepted by Canadian standards at the time, was negative for Lyme disease. The defendants argue that Mr. Papineau’s only diagnosis was from an American doctor, Dr. McShane, whom the defendants described as “controversial.” The defendants also note that Mr. Papineau refused several offers of a referral to a Canadian infectious disease specialist.

[261] The defendants retained an expert on the causation issue but elected not to call him at trial.

Analysis

Has Mr. Papineau proven that he was bitten by a tick?

[262] For purposes of the standard of care analysis I have already undertaken in this case, whether Mr. Papineau was bitten by a tick or by something else in April 2010 was of less importance than it is to the causation analysis. In respect of standard of care, it was arguable that, regardless of what had bitten Mr. Papineau, he should have been treated for Lyme disease, because he had been in an area that was either endemic for ticks or that ticks at least were known to frequent. (As Dr. Brisebois considered Lyme disease and diagnosed Mr. Papineau with cellulitis, I did not accept this argument.) In contrast to the standard of care analysis, whether Mr. Papineau was bitten by a tick is central to the causation analysis. If Mr. Papineau was not bitten by a tick in April 2010, he was not infected with the Borrelia burgdorferi bacterium and he could not have had Lyme disease, at least not as a result of the bite that precipitated his visit to the KDH in April 2010.

[263] I have already found, under Issue #1, that Mr. Papineau told the KDH triage nurse that he had been bitten by an insect and, more significantly, that Mr. Papineau told Dr. Brisebois that he thought it “was an insect and not a tick” that had bitten him, clearly making a distinction between the two. Under Issue #1, I explained why I preferred the two KDH records of April 14, 2010 to Mr. Papineau’s testimony at trial, which was that he had been bitten by a tick, that he would not have told anyone otherwise and that he had been forced to convince Dr. Brisebois that he had been bitten by a tick.

In April 2010 Mr. Papineau did not believe he was bitten by a tick

[264] I infer from the KDH records that, contrary to his evidence at trial, Mr. Papineau, an experienced outdoorsman who had seen and was familiar with ticks prior to April 2010, did not think that he had been bitten by a tick at the time he attended at the KDH emergency department on April 14, 2010. I also infer from the records that Mr. Papineau, quite reasonably, was nonetheless concerned when he developed a rash at the site of the bite, in part because Mr. Brownell’s dog had been diagnosed with Lyme disease.

[265] While I, like Dr. Brisebois, recognize that Mr. Papineau could have been mistaken, I consider Mr. Papineau’s evidence at the time to be the best evidence of whether he had been bitten by a tick. This is in part because I have accepted Mr. Papineau’s evidence that he was an experienced outdoorsman who had seen and was familiar with ticks prior to April 2010 and in part because no one was closer to the tiny object on his arm than he was. I am satisfied that at the time he visited the KDH on April 14, 2010, Mr. Papineau did not think he had been bitten by a tick; he told both the triage nurse and Dr. Brisebois that he had been bitten by an insect.

The evidence of Mr. Brownell and Ms. Charlebois

[266] Mr. Papineau argued that his evidence at trial that he was bitten by a tick is supported by the evidence of Mr. Brownell and Ms. Charlebois. Mr. Papineau argued that he and Mr. Brownell are both experienced outdoorsmen and that their evidence that a tick bit him should be accepted. Mr. Papineau also argued that ticks were a known threat in the Brockville area at the relevant time.

[267] I accept that both Mr. Papineau and Mr. Brownell were experienced outdoorsmen. Mr. Papineau testified that he had been a lifelong hunter. Mr. Papineau had also produced a cable television show about fishing. Mr. Brownell testified that he had worked his entire life outdoors. I also accept that ticks had become a concern in the Brockville area in the spring of 2010.

[268] I reviewed the evidence of Mr. Papineau, Mr. Brownell and Ms. Charlebois in respect of the bite earlier in these reasons, under Issue #1. For the following reasons, I do not accept Mr. Brownell’s evidence that he saw a tick that day:

a. Ms. Charlebois said that when Mr. Papineau cried out, asking her to “get it off”, she was next to Mr. Papineau on the left side of the driveway and Mr. Brownell was maybe 10 feet away.

b. In examination in chief, in reference to what was on Mr. Papineau’s arm, Mr. Brownell said, “we looked at it closely” and that he was 100 per cent sure that it was a tick. On cross-examination, Mr. Brownell said a tick was not like a large spider, which you could see from across the room. Mr. Brownell was asked if he got close to Mr. Papineau and actually looked at the tick. At first, Mr. Brownell said he was probably a foot or two away, close enough that he could see it. He then admitted that he could not remember walking over and looking at the object on Mr. Papineau’s arm, but that this is what he would have done.

c. While Mr. Papineau and Ms. Charlebois both said they saw something white on Mr. Papineau’s upper arm, Mr. Brownell said what he saw was a small black dot.

d. Although Mr. Brownell said he knew in April 2010 that in the event of a tick bite, it was important to preserve the tick in case medical attention was required, he did not know what happened to the tick once it was removed from Mr. Papineau’s arm and he did not remember having a conversation about keeping the tick.

[269] My overall impression of Mr. Brownell as a witness was that he was a well-meaning person who was attempting to assist Mr. Papineau. Mr. Brownell said that about three or four weeks before the trial, he and Mr. Papineau had talked about the trial and what cross-examination would be like. Mr. Brownell said they talked a bit about what had happened the weekend of the bite and how much he could remember.

[270] I find that Mr. Brownell’s insistence that he saw a tick is at odds with his admission on cross-examination that he could not recall walking over and looking at the object on Mr. Papineau’s arm. (The relevant portion of Mr. Brownell’s cross-examination is reproduced under Issue #1, above.) Mr. Brownell’s evidence that he knew at the time that it was important to preserve a tick following a bite, but he did not know what happened to the tick that bit Mr. Papineau and did not recall any discussion about keeping the tick, suggests to me that he did not believe at the time that Mr. Papineau had been bitten by a tick.

[271] The defendants argued that Mr. Brownell’s evidence that Mr. Papineau said “ouch” before he saw the object on his arm meant that Mr. Papineau was not bitten by a tick because there was evidence that tick bites are painless, and many people don’t know they have been bitten. In my view, if Mr. Papineau said “ouch”, it may have been because, as he described it, the object on his arm became caught on his T-shirt, and not because he felt a sting or a bite.

[272] Although Ms. Charlebois said that she and Mr. Papineau no longer communicate, I did not have the impression that she bore any ill will toward Mr. Papineau. I also did not have the impression that she was trying to help Mr. Papineau. Ms. Charlebois, now an RCMP officer, presented as a witness who tried to answer the questions she was asked clearly, fairly and to the best of her ability. Ms. Charlebois described trying to brush a small white object off Mr. Papineau’s arm. When she was unable to brush it off, she picked at it with her finger. When Ms. Charlebois was shown the drawing of the black-legged tick Mr. Papineau had identified, she said she would have seen the white bottom end of the tick.

[273] Mr. Charlebois recalled a conversation about Mr. Papineau having been bitten by a tick, but she could not recall if the discussion took place the same day. On cross-examination, Ms. Charlebois said the day Mr. Papineau was bitten, she was not aware that he had been bitten by a tick, and only became aware of this later, after Mr. Papineau became ill:

Q: So just so I’m clear: On that day where you were asked to brush or scratch this thing off of Mr. Papineau, did you know that it was, in fact, a tick?”

A: No. I said before, I did not know at that time that it was a tick.

Q: Fair enough. And you only discovered later, at some point when Mr. Papineau developed this disease, that it was a tick. Is that fair?

A: Correct.

[274] Ms. Charlebois’s evidence that she did not know that Mr. Papineau had been bitten by a tick the day of the bite calls into question Mr. Papineau’s evidence that he, Ms. Charlebois and Mr. Brownell had a discussion that day about how Mr. Papineau should watch for Lyme disease.

[275] There was some evidence that suggested that Mr. Papineau was bitten by a tick in Greenbush that day, including that ticks were known to be present in the Brockville area at the time, that ticks were known to congregate in wood piles and that the “white crumb”, as Ms. Charlebois described it, on Mr. Papineau’s arm did not brush off easily. That said, Mr. Papineau was both an experienced outdoorsman and the person who was closest to whatever it was that was on his arm that day. At the time, Mr. Papineau believed it was an insect; that is what he told the triage nurse and Dr. Brisebois on April 14, 2010. I am satisfied by the comment Mr. Papineau made to Dr. Brisebois to the effect that he thought it was an insect that bit him and not a tick, that at the time, Mr. Papineau knew that a tick is not an insect. The evidence of Mr. Brownell and Ms. Charlebois did not persuade me that Mr. Papineau was bitten by a tick.

Mr. Papineau was bitten on April 13, 2010, not on April 10, 2010

[276] I have already observed that, typically, the erythema migrans rash does not appear until at least three days after its host has been bitten by a tick.[^6] For this reason, the timing of Mr. Papineau’s bite has a bearing on my consideration of whether he has proven that he was bitten by a tick. If the interval between the bite and the appearance of the rash was less than three days, the rash was unlikely to be the tick-related erythema migrans rash.

[277] Mr. Papineau was adamant that he was bitten the morning of April 10, 2010, about four and a half days before he visited the KDH emergency department the night of April 14, 2010. Mr. Papineau said he disagreed with the triage nurse’s note of April 14, 2010, that said he had been cutting wood “yesterday”, which would have been on April 13th. Mr. Papineau also denied that he told Dr. Brisebois that he had been bitten 36 hours earlier, which also would have been on April 13th, despite the note to this effect in Dr. Brisebois’s chart.

[278] Mr. Papineau had no documentary evidence, such as a calendar, a journal entry or emails, to support his insistence that he was bitten on April 10, 2010, despite the clear references to the contrary in the KDH records.

[279] Mr. Brownell testified that Mr. Papineau was bitten on April 10th and said he was 100 per cent sure that it was on a Saturday. Mr. Brownell said it would have been his day off work, although he said he sometimes had Wednesdays off. Mr. Brownell, like Mr. Papineau, had no documents to support his recollection of the date. Mr. Brownell admitted that he would have figured out the date through conversations with Mr. Papineau and Ms. Charlebois over the years. He asked how else he could have remembered the date of something that happened 10 years ago.

[280] Ms. Charlebois’s recollection did not support Mr. Papineau’s and Mr. Brownell’s conclusion that Mr. Papineau had been bitten on April 10, 2010. Ms. Charlebois said the April 2010 visit to her mother and Mr. Brownell’s home had likely taken place on a weekday, because she worked on weekends at the time. Ms. Charlebois also testified that her mother’s birthday was April 13th and the birthday may have been the reason for the visit.

[281] Further, although Mr. Papineau insists that he was bitten on April 10, 2010, and that he would not have told the triage nurse or Dr. Brisebois otherwise, it appears that Mr. Papineau’s certainty about the date of the bite is of relatively recent origin. In 2012, Mr. Papineau did not even know the month in which he had been bitten. I have already referred to Mr. Papineau’s attendance at the Ottawa Hospital on May 15, 2012, when he reported that he had been bitten by a tick “18 months ago”, which would have been a reference to November 2010. The same day, Mr. Papineau told a doctor he was bitten by a tick “last November”, a reference to November 2011. In court, Mr. Papineau insisted that he had only been bitten by a tick once and that it was in April 2010. Mr. Papineau insisted he never told anyone he had been bitten by a tick in November. I am satisfied, however, that Mr. Papineau did tell more than one health care provider at the Ottawa Hospital on May 15, 2012 that he had been bitten by a tick in November—references to November, albeit in different years, appeared in notes made by two different people. It seems unlikely to me that if in May 2012 Mr. Papineau did not know whether he had been bitten in the month of April or the month of November, at a trial 10 years later, he could have a clear memory of having been bitten on Saturday, April 10th, when contemporaneous hospital records showed that on April 14, 2010, he said he had been bitten the previous day. It appears that Mr. Papineau was not even sure about when he was bitten at the time his statement of claim was issued in 2013. Before the statement of claim was amended in 2018, Mr. Papineau had pleaded that he was bitten on April 14, 2010, which was the day he visited the KDH.

[282] I accept the accuracy of the KDH records and Ms. Charlebois’s recollection that she and Mr. Papineau had visited her mother and Mr. Brownell on a weekday. I reject the evidence of Mr. Papineau and Mr. Brownell that Mr. Papineau was bitten on Saturday, April 10, 2010. I find that Mr. Papineau was bitten on Tuesday, April 13, 2010 and, therefore, that his rash appeared and became concerning to him in the 36-hour period before he visited the KDH on April 14, 2010—at least 36 hours earlier than the window for an erythema migrans rash typically opens.

The evidence of Dr. Ralph Hawkins

[283] In support of his position that he had Lyme disease, Mr. Papineau relied on the expert opinion of Dr. Ralph Hawkins. Dr. Hawkins is a Calgary-based nephrologist who has a special interest in Lyme disease. Dr. Hawkins has taken continuing education courses in Lyme disease through universities or what he described as accredited organizations, he has conducted an extensive literature review and developed a clinical practice in which he has seen hundreds of patients who are suspected to suffer from Lyme disease. Dr. Hawkins has been involved with Lyme disease advocacy groups and has been outspoken about the plight of Lyme disease sufferers. He was asked by the Public Health Agency of Canada to be on the steering committee for the National Framework on Lyme Disease Conference in 2016, and later gave a presentation about Lyme disease to a parliamentary committee. Dr. Hawkins readily acknowledges that not all his views about Lyme disease and how it should be treated are shared by the mainstream medical establishment. Dr. Hawkins also has a law degree.

[284] I had some concerns about whether Dr. Hawkins would be an independent and impartial witness, in part because of his involvement with Lyme disease advocacy groups and also because, in his written reports, he expressed some views about the parties’ credibility and made some factual findings which appeared intended to favour Mr. Papineau’s case. However, in the voir dire[^7], Dr. Hawkins assured me that he understood his duty as an expert witness. Dr. Hawkins also said that if any of the opinions he expressed were contrary to accepted scientific criteria, he would make this clear in his testimony. I considered Dr. Hawkins’ evidence to be necessary. It was a non-jury trial. While my early misgivings about Dr. Hawkins were in sharper relief than those I had had in relation to Dr. Haggblad following Dr. Haggblad’s voir dire, if I had excluded Dr. Haggblad’s evidence on this basis, I would have done an injustice to Dr. Haggblad, and to the process, which would have been deprived of his thoughtful evidence.

[285] Over the objection of the defendants, who argued that Dr. Hawkins lacked the qualifications to testify and was not impartial, I qualified Dr. Hawkins as an expert witness capable of giving opinion evidence in respect of the prevalence, diagnosis and treatment of Lyme disease in 2010, 2011 and 2012. I ruled that Dr. Hawkins would not be permitted to give opinions about the issues of standard of care or damages or about the diagnosis of “alternatively diagnosed Lyme disease” to which he had referred in his reports, but which had not been pleaded and was not therefore at issue in Mr. Papineau’s case.

[286] Dr. Hawkins testified that, in his opinion, Mr. Papineau had Lyme disease when he saw Dr. Brisebois on April 14, 2010. Dr. Hawkins said that Mr. Papineau’s clinical presentation was consistent with Lyme disease in accordance with CDC criteria published in 2008 and that Mr. Papineau also met the 2009 Health Canada criteria for “probable Lyme disease”.

[287] Dr. Hawkins said the rash Mr. Papineau had on his arm on April 14, 2010 was consistent with the erythema migrans rash and with what he called a “mini EM” rash, which he said was the same as the erythema migrans rash, only smaller. Dr. Hawkins also said that in 2012, when IGeneX testing was conducted, Mr. Papineau had serologic evidence of Lyme disease.

[288] Dr. Hawkins said that, on a balance of probabilities, Mr. Papineau likely contracted Lyme disease a few days before he attended the KDH on April 14, 2010.

[289] Dr. Hawkins said that Mr. Papineau’s negative ELISA blood test in May 2012 did not rule out Lyme disease; Dr. Hawkins said that, at the time, the test was not sufficiently sensitive to do so. Dr. Hawkins said the July 2012 IGeneX blood test results, which Dr. Romero-Sierra had told Mr. Papineau were negative, in fact confirmed serologic evidence of Lyme disease infection. Dr. Hawkins said that despite criticism of the IGeneX laboratory because of some of its internal testing criteria, its test of Mr. Papineau was reliable and had been performed in accordance with CDC standards. (I will refer to the IGeneX test results in greater detail below.)

[290] Dr. Hawkins assumed for purposes of formulating his opinion that Mr. Papineau had been bitten by a tick. However, he resisted Mr. Papineau’s lawyer’s characterization of this as an “assumption”; he said this was what the patient said happened. Dr. Hawkins said, “in medicine, we take histories from our patients, and we formulate our clinical judgment based on the history that is obtained.” Dr. Hawkins said that Mr. Papineau’s history, combined with the materials he had been provided, were consistent with a tick bite. Dr. Hawkins said he gave no thought to the possibility that a tick had not bitten Mr. Papineau, because Mr. Papineau said a tick had bitten him.

[291] Dr. Hawkins was aware of the KDH records which referred variously to a bug bite and an insect bite. He was also aware that Dr. Brisebois had made a note that said, “thinks it was an insect bite, not a tick bite.” Dr. Hawkins said there was no documentation of any physical sign or description of any physical feature that would have distinguished an insect bite from a tick bite. Dr. Hawkins also said there was no objective information to support the references in the records to an insect bite.

[292] It appeared to me that through Dr. Hawkins’ willingness to accept Mr. Papineau’s evidence that he had been bitten by a tick, because this is what Dr. Hawkins would have done in respect of one of his own patients, Dr. Hawkins may have blurred the line between the role of an independent expert and that of a treating physician. It also appeared to me curious that Dr. Hawkins would be willing to accept at face value Mr. Papineau’s evidence that he had been bitten by a tick but was unwilling to accept what contemporaneous medical records showed Mr. Papineau had said to the triage nurse and Dr. Brisebois on April 14, 2010 (i.e. that he had been bitten by an insect) in the absence of “objective information” to support the statement.

[293] There was no “objective information” to support Mr. Papineau’s position that he had been bitten by a tick either, unless one assumes that Mr. Papineau’s rash was an erythema migrans rash and then works backwards. This appears to be what Dr. Hawkins did. Dr. Hawkins said a photograph of Mr. Papineau’s rash did not have the characteristic appearance of cellulitis and he could not think of what other type of rash it could be if not erythema migrans. Dr. Hawkins said the photograph, combined with Mr. Papineau’s history, told him it was an erythema migrans rash.

[294] When Dr. Hawkins referred to Mr. Papineau’s “history” in this context, I understood him to be referring to Mr. Papineau’s evidence that he had been in an area known for ticks and that he said he had been bitten by a tick. There was nothing else in Mr. Papineau’s history that would have pointed to erythema migrans. As I noted above, Dr. Haggblad said that, based on the records he had reviewed, Mr. Papineau did not appear to have any of the traditional symptoms associated with early Lyme disease on April 14, 2010.

[295] If indeed Dr. Hawkins relied on his conclusion that Mr. Papineau’s rash was erythema migrans as “objective information” that supported Mr. Papineau’s testimony that he had been bitten by a tick, I consider his logic to be both circular and based on a shaky foundation. Dr. Hawkins said Mr. Papineau’s rather was either cellulitis or erythema migrans. He ruled out cellulitis, while acknowledging that he had not had an opportunity to ask Mr. Papineau if the rash was painful, swollen or warm, features he said would be characteristic of cellulitis. However, Dr. Brisebois’s note of April 14, 2010 said the rash had all three of these features. Dr. Brisebois had diagnosed Mr. Papineau with cellulitis. Dr. Hawkins was aware of Dr. Brisebois’s note. Dr. Hawkins was also aware of the evidence Dr. Brisebois had given at his examination for discovery. Dr. Hawkins may not have had an opportunity personally to ask Mr. Papineau about the characteristics of his rash, but Dr. Hawkins knew what Dr. Brisebois’s observations were and he knew that Dr. Brisebois had diagnosed cellulitis. Dr. Hawkins disregarded this information, ruled out cellulitis and opined that Mr. Papineau had an erythema migrans rash.

[296] Dr. Hawkins did not address the time interval between Mr. Papineau’s bite and the appearance of his rash, other than to say that Mr. Papineau’s rash appeared in a timeframe that would be consistent with erythema migrans. As the erythema migrans rash does not typically appear until three days after the host has been bitten by a tick, I infer that Dr. Hawkins accepted Mr. Papineau’s evidence that he was bitten on April 10, 2010 and disregarded the KDH records that showed that Mr. Papineau told the triage nurse and Dr. Brisebois that he had been bitten the day before he visited the KDH, which would have been on April 13, 2010, a timeframe that would not be consistent with erythema migrans.

[297] In respect of the IGeneX testing, and the conclusions Dr. Hawkins drew from it, Mr. Papineau relies on the following excerpts from Dr. Hawkins’ testimony, in which Dr. Hawkins said the testing was in accordance with the CDC’s protocol:

…The testing performed on Mr. Papineau therefore conformed to the methodology described by the CDC. In response to the equivocal result of the first test, the Western immunoblots were done. Mr. Papineau had been ill for nearly two years at this point, so only the IgG blot would have been dictated by protocol. The IgM blot was also done in addition to the required IgG blot testing. Contrary to the contention of Dr. MacPherson [the causation expert retained by the defendants but not called as a witness at trial] that “The IGeneX laboratory result was initially reported as equivocal IgM, but on subsequent confirmatory testing it was negative”, the IgM Western Blot positively detected Lyme antigens by criteria defined by the CDC on the specimen collected 07/10/12.

In my view Mr. Papineau has blood tests…showing substantiated serologic evidence of Lyme disease by virtue of his IGeneX testing done in July 2012, and on balance of probabilities he is likeliest to have contracted Lyme disease acutely by tick-bite in April 2010 a few days prior to his presentation to the Kemptville District Hospital.

[298] Although Dr. Hawkins referred to the CDC’s methodology and criteria in these passages, and to “substantiated serologic evidence of Lyme disease”, he was careful not to say that Mr. Papineau’s IGeneX test was positive for Lyme disease when interpreted in accordance with the CDC’s methodology.

[299] For the following reasons, I find the IGeneX testing was not positive for Lyme disease when interpreted in accordance with the CDC’s methodology:

1. Dr. Hawkins reproduced the CDC’s methodology, or algorithm, in one of his reports. The CDC algorithm provided that, in the event of an “equivocal” test result, such as the equivocal result in Mr. Papineau’s July 2012 IGeneX test, further testing should be conducted. The CDC algorithm provided that because Mr. Papineau had had symptoms for more than 30 days, only one further test, the “IgG Western Blot” should be conducted. Mr. Papineau’s IgG Western Blot was negative, which meant, in accordance with the CDC methodology, that Mr. Papineau’s IGeneX test was negative for Lyme disease. Contrary to the CDC methodology, however, IGeneX performed a second further test, the IgM Western Blot. Dr. Hawkins acknowledged that only the IgG Western Blot was dictated by the CDC’s protocol. He also acknowledged that “generally speaking the IgM Western Blot is not relied upon by the authorities if the test is drawn more than four to six weeks after the exposure to illness.” He nonetheless relied on Mr. Papineau’s IgM Western Blot test, which the CDC said should not have been conducted, to opine that the IGeneX test showed serological evidence of Lyme disease.

2. Dr. Hawkins acknowledged that the CDC was a respected and authoritative body. He said that he makes the diagnosis of Lyme disease using the established criteria of the CDC when that information is available or possible. On at least one occasion during his testimony, Dr. Hawkins referred with approval to information available on the CDC’s website. However, on cross-examination, when the defendants’ counsel showed Dr. Hawkins the answer to a “Frequently Asked Question” on the CDC website, which said that an IgM Western Blot test is only meaningful during the first four weeks of illness, Dr. Hawkins questioned the reliability of the CDC’s website. The question on the website was whether a person has Lyme disease when they have had been sick for a few years and have just had a Lyme disease test that was positive for IgM but negative for IgG. According to the answer on the website, “[i]f you have been infected for longer than 4 to 6 weeks and the IgG Western Blot is still negative, it is highly likely that the IgM result is incorrect (e.g. a false positive.)” The question was in respect of a fact situation very similar to that of Mr. Papineau: Mr. Papineau said he started to become ill in 2010; he had his IGeneX test in July 2012; his IgG was negative; his IgM was positive. Dr. Hawkins said he didn’t know who provided the answer on the CDC’s website or what their qualifications were, so he disputed the advice. Dr. Hawkins said the fact the advice was on the CDC’s website meant only that the CDC had published it and did not speak to the validity or the correctness of the information. Dr. Hawkins was obviously trying to distance himself from the advice on the CDC website. I am satisfied that this was because the advice suggested that Mr. Papineau’s IgM result, on which Dr. Hawkins relied to conclude there was serologic evidence of Lyme disease on Mr. Papineau’s IGeneX test, was likely a false positive, because the test had been conducted more than four to six weeks after Mr. Papineau’s bite.

[300] For the following reasons, even if I assume that Mr. Papineau was bitten by a tick, I would reject Dr. Hawkins’ opinion that Mr. Papineau had Lyme disease on April 14, 2010:

1. I found, based on the evidence at trial, that Mr. Papineau was bitten on April 13, 2010, and not on April 10, 2010. Consequently, and contrary to Dr. Hawkins’ opinion, Mr. Papineau’s rash did not appear within the timeframe that would be consistent with erythema migrans.

2. The characteristics of cellulitis listed by Dr. Hawkins (pain, swelling and warmth) were the characteristics of Mr. Papineau’s rash identified by Dr. Brisebois on April 14, 2010. Dr. Brisebois, who was with Mr. Papineau that day, was in a better position to identify the rash than Dr. Hawkins was, and Dr. Brisebois diagnosed Mr. Papineau with cellulitis. Dr. Hawkins’ conclusion that the rash was erythema migrans was based only on its appearance and Mr. Papineau’s evidence that he was bitten by a tick.

3. According to the CDC’s algorithm, which Dr. Hawkins reproduced and relied on in one of his reports, because of the length of time that had passed since the onset of Mr. Papineau’s symptoms, an IgM test should not have been conducted on Mr. Papineau’s blood sample in July 2012. According to the CDC’s website, a positive IgM result in these circumstances is likely a false positive.

[301] I would also reject Dr. Hawkins’ opinion because, while I found that much of Dr. Hawkins’ evidence was fair, his evidence on some key points lacked the impartiality I would have expected from an expert witness who truly understood that, to quote from Rule 4.1.01 of the Rules of Civil Procedure, his duty was to provide opinion evidence that was fair, objective and non-partisan and that this duty prevailed over any obligation owed by the expert to the party on whose behalf he was engaged. Dr. Hawkins had assured me during the voir dire that he considered his role to be “a source of information and perhaps education” for the court, and that he was not testifying to assist Mr. Papineau. I was let down by Dr. Hawkins’ failure to consider and address the evidence that Mr. Papineau told the triage nurse and Dr. Brisebois that he had been bitten the day before his attendance at the KDH, Dr. Brisebois’s observations that Mr. Papineau’s rash was painful, swollen and warm and the CDC’s warning that if an IgM Western Blot test conducted years after a bite is positive, it is likely a false positive. Despite his assurance to the contrary, my impression was that Dr. Hawkins’ opinion was intended to assist Mr. Papineau. As a result, it did not assist the court.

The evidence and diagnosis of Dr. Maureen McShane

[302] I have already noted that on September 12, 2012, Mr. Papineau was diagnosed with Lyme disease by Dr. McShane, a now-retired U.S.-trained family physician whose practice was in Plattsburgh, N.Y.

[303] Dr. McShane is a Lyme disease sufferer herself. Dr. McShane said she has been sick with Lyme disease since 2002. She saw several specialists who failed to diagnose her.

[304] Dr. McShane’s training in respect of Lyme disease consisted of two one-week training sessions with two American physicians. Dr. McShane also attended courses and conferences organized by the International Lyme and Associated Diseases Society, or ILADS.

[305] Dr. McShane said that infectious disease specialists in Canada align themselves with the Infectious Disease Society of America, or IDSA, while she aligns herself with ILADS. Dr. McShane said that ILADS sees Lyme disease differently than IDSA and infectious disease specialists do.

[306] Dr. McShane said that she believes in “evidence-based medicine” but not when it comes to Lyme disease. Dr. McShane does not agree with the CDC or IDSA in respect of the diagnosis and treatment of Lyme disease. She does not agree with the CDC’s protocols for serological testing for the disease.

[307] Dr. McShane said that she prescribed multiple antibiotics to Lyme disease patients, an approach that is considered to be unconventional in Canada.

[308] In conjunction with his treatment by Dr. McShane, Mr. Papineau signed a document that instructed Dr. McShane not to release any of his medical records to any government agency or medical licensing board. The document referred to “the current Lyme disease controversy involving efforts of some government or medical licensing agencies to interfere in an individual doctor’s treatment decisions.” The document confirmed that Dr. McShane had fully discussed the risks and benefits of treatment with Mr. Papineau. Mr. Papineau signed the document on September 12, 2012, the day he met Dr. McShane.

[309] Dr. McShane said she diagnosed Mr. Papineau on a clinical basis, relying significantly on the history Mr. Papineau provided to her. Dr. McShane said the IGeneX test results were confirmatory but were not the basis of her diagnosis.

[310] Dr. McShane’s description of how she diagnosed Mr. Papineau was consistent with Mr. Papineau’s evidence. Mr. Papineau had said that Dr. McShane told him that she had based her diagnosis on the following information, which he had given to her: (1) that he had been bitten by a tick; (2) that he had seen the tick; and (3) that he had the rash. Mr. Papineau had also said that Dr. McShane told him the IGeneX test results had not been a deciding factor in her diagnosis, although she told him they had confirmed that he had Lyme disease.

[311] The first paragraph of Dr. McShane’s notes of her meeting with Mr. Papineau on September 12, 2012 reads as follows:

49 yo ill since Jan 2011. Bite by Nymph tick April 2010 He was working in Brockville (Lyme endemic area) in Greenbush and he had a small tick attached to his upper R arm. His girlfriend rubbed it off (several attempts made). 3 days later he saw his doctor with an EM rash (not bulls eye). Large warm with a texture. His doctor did not treat him. Flu like symptoms started and he felt intermittently ill all summer. He was building a house as a general contractor summer 2010 and noted that his stamina had decreased. He has had headaches since the bite.

[312] Dr. McShane said she believed she had charted accurately what Mr. Papineau told her.

[313] In a form Mr. Papineau completed for Dr. McShane, he wrote that he had been bitten by a “black leg nymph tick”. He also said a dog was diagnosed with Lyme disease a week later.

[314] I consider it to be both significant and unfortunate that when Dr. McShane diagnosed Mr. Papineau with Lyme disease on September 12, 2012, and prescribed doxycycline, metronidazole, hydroxychloroquine sulfate and clarithromycin for him, she did not have the following information:

a. Dr. McShane did not know that in April 2010, when Mr. Papineau sought medical treatment following the bite, he told a nurse that he had been bitten by an insect and he told a doctor he believed that he had been bitten by an insect and not a tick; Mr. Papineau told Dr. McShane he had been bitten by a “black leg nymph tick”.

b. Dr. McShane did not know that Mr. Papineau had told the same nurse and doctor that he had been bitten the previous day; Mr. Papineau told Dr. McShane he had seen his doctor three days after he was bitten. (As I have noted several times, above, the timing of presentation of a rash is relevant to an erythema migrans diagnosis; the erythema migrans rash typically appears three to about 30 days following a tick bite.)

c. Dr. McShane did not know that Mr. Papineau had not been diagnosed with an erythema migrans rash; according to Dr. McShane’s notes, Mr. Papineau told her, “he saw his doctor with an EM rash”.

[315] Dr. McShane did not have the April 14, 2010 KDH records when she met and diagnosed Mr. Papineau on September 12, 2012. Dr. McShane said that she saw these records at a later date, and they had no bearing on her diagnosis. In fairness to Dr. McShane, she may not have been able to read Dr. Brisebois’s handwriting. (Unlike Dr. Hawkins, it does not appear that Dr. McShane would have had the transcript of Dr. Brisebois’s examination for discovery.) However, it should have been clear to Dr. McShane from the triage nurse’s note that Mr. Papineau had said he had been bitten by an insect the previous day and not by a tick three days earlier.

[316] Although Mr. Papineau said he showed Dr. McShane a photograph of his rash, Dr. McShane could not recall seeing a photo. Dr. McShane said she had a vague and possibly incorrect memory of Mr. Papineau trying to find a photo on his phone but not being able to find one. Dr. McShane said that if Mr. Papineau had shown her a photo, she would have made a note of having seen a photo and she would have asked for a copy. She agreed there was no photo in her chart and no note about having seen a photo.

[317] Mr. Papineau said he did not give Dr. McShane a copy of the May 2012 ELISA test results.

[318] Having reviewed Dr. McShane’s chart and heard her testimony, it is evident to me that she diagnosed Mr. Papineau with Lyme disease based on an understanding that he had been bitten by a tick in April 2010, that he had an erythema migrans rash three days later and that he saw his doctor when he had the rash but received no treatment.

[319] It is also evident that Dr. McShane did not know at the time that Dr. Brisebois had diagnosed Mr. Papineau with cellulitis and not erythema migrans. Mr. Papineau had told Dr. McShane his rash was “large warm with a texture”. I find that Dr. McShane did not see any photographs of his rash. Dr. McShane did not know how large Mr. Papineau’s rash was; she said “large” would have been Mr. Papineau’s description.

[320] Dr. McShane said she did not consider recommending to Mr. Papineau that he consult an infectious disease specialist in Canada. She said he had come to her because he was not being treated in Canada. She did not know whether he had seen an infectious disease specialist in Canada before consulting her.

[321] I find that when Dr. McShane diagnosed Mr. Papineau with Lyme disease on September 12, 2012, she did not have all of the relevant information, such as the KDH records and the photographs of Mr. Papineau’s rash. (Dr. McShane also did not have the May 2012 negative ELISA test results, but I question whether these results would have had any bearing on her diagnosis.) I find that Dr. McShane’s diagnosis was based on a series of facts that were in dispute at this trial: that Mr. Papineau was bitten by a tick; that Mr. Papineau did not seek medical intervention until three days after the bite; and that Mr. Papineau had an erythema migrans rash. Although little turns on this, I note that Mr. Papineau also told Dr. McShane that a dog was diagnosed with Lyme disease a week after his bite, when in fact he knew about Mr. Brownell’s dog having Lyme disease at the time he was bitten and told the KDH triage nurse about it.

[322] For these reasons, I place no weight on Dr. McShane’s diagnosis.

Conclusion with respect to Issue #3

[323] I find that Mr. Papineau has failed to prove, on a balance of probabilities, that he was bitten by a tick in April 2010. The evidence of Mr. Brownell and Ms. Charlebois does not support Mr. Papineau’s evidence that he was bitten by a tick. Mr. Papineau told the triage nurse and Dr. Brisebois that he had been bitten by an insect and told Dr. Brisebois specifically that he had been bitten by an insect and not a tick. I am satisfied that Mr. Papineau knew what a tick looked like at the time and knew the difference between an insect and a tick.

[324] Dr. Hawkins’ evidence did not persuade me that Mr. Papineau had been bitten by a tick. For purposes of his opinion, Dr. Hawkins accepted Mr. Papineau’s evidence that he had been bitten by a tick and disregarded the medical records that suggested that Mr. Papineau had said something different to the KDH triage nurse and to Dr. Brisebois in April 2010. Dr. Hawkins also appears to have accepted Mr. Papineau’s evidence that he was bitten on April 10, 2010, having concluded that the timing of Mr. Papineau’s rash was consistent with erythema migrans. Dr. Hawkins did not consider Dr. Brisebois’s observations about Mr. Papineau’s rash or Dr. Brisebois’s diagnosis of cellulitis. According to the CDC protocol, the IgM test of July 2012, which was positive, should not have been performed because of the risk of a false positive. For these and other reasons I also do not accept Dr. Hawkins’ opinion that Mr. Papineau had Lyme disease when he visited the KDH on April 14, 2010.

[325] I do not accept Dr. McShane’s diagnosis of Lyme disease as evidence that Mr. Papineau had Lyme disease. I do not believe that Dr. McShane would have made the same diagnosis if she had been told that on April 14, 2010, Mr. Papineau thought he had been bitten by an insect, that his rash appeared fewer than 36 hours after he was bitten, that the rash was painful, swollen and warm and that an emergency room physician, who saw the rash and spoke with Mr. Papineau, diagnosed cellulitis and not erythema migrans.

[326] Mr. Papineau was given several opportunities to consult a Canadian specialist about Lyme disease but did not take advantage of them. Dr. Romero-Sierra offered to refer Mr. Papineau to an infectious disease specialist in June 2012 and again on September 13, 2012. Mr. Papineau refused. Mr. Papineau’s current family doctor, Dr. Roy, recommended in 2013 and again in 2016 that Mr. Papineau accept a referral to an infectious disease specialist. Mr. Papineau refused. At trial, Mr. Papineau said he already knew he had Lyme disease so there was no point.

[327] Further, in the more than eight years from the time Mr. Papineau’s statement of claim was issued to the date the trial started, Mr. Papineau did not undergo an independent medical assessment for purposes of the trial.

[328] For all of these reasons, I find that Mr. Papineau has failed to prove that he was bitten by a tick in April 2010 and has further failed to prove that he has Lyme disease. For this reason, I find that, even if Dr. Brisebois or Dr. Romero-Sierra or both physicians had breached the applicable standard of care, the breach would not have caused Mr. Papineau to suffer the alleged loss.

Issue # 4: If there was a breach of the standard of care and the breach or breaches caused Mr. Papineau’s alleged loss, what are Mr. Papineau’s damages?

[329] Although I have found no breach of the standard of care and no causation, I will briefly consider the damages I would have awarded to Mr. Papineau had I found Dr. Brisebois or Dr. Romero-Sierra or both to have breached the standard of care and that Mr. Papineau had Lyme disease. An assessment of damages in these circumstances is, admittedly, somewhat challenging because of the hypothetical nature of the exercise.

[330] Mr. Papineau requested general damages of $175,000 to $200,000, damages for past income loss from $270,276 to $300,608 and damages for future income loss from $625,246 to $693,218.

[331] Mr. Papineau says he has never recovered from Lyme disease. He says he is physically, psychologically and cognitively impaired. He says he lives with chronic pain. He says he suffers from fatigue. He says his cognitive impairments are permanent. He says he enjoys life less than he did before April 2010.

[332] There was evidence at trial that supported Mr. Papineau’s testimony that he was unwell: Ms. Charlebois testified that she had been required to assume Mr. Papineau’s responsibilities at Charliewoods and at home because of his illness and fatigue; Mr. Papineau’s friend, Mr. Loueb, said that Mr. Papineau had stopped hunting with him because of his condition; an employer said that, at times, Mr. Papineau was unable to accept assignments because of poor health.

[333] Mr. Papineau had been a frequent visitor to hospital emergency departments and his doctor’s office long before April 2010. His is not a case in which a plaintiff had no health complaints pre-incident and multiple complaints afterwards. Mr. Papineau was taken through his pre-April 2010 medical records. He did not disagree that beginning in 2005 and before April 2010, he had visited hospital emergency departments 10 times and had seen Dr. Romero-Sierra 33 times, that he had been to emergency departments twice in 2008 and four times in 2009 and that in 2008, 2009 and 2010 (before April 2010), he saw Dr. Romero-Sierra 18 times. During these attendances, Mr. Papineau had complained of chest pain, shortness of breath or feeling unwell. Mr. Papineau’s complaints also included nasal congestion, anxiety, chest tightness, headaches, slurred speech, right-sided facial numbness, weight loss, chills and flushing, muscle aches, nausea, diarrhea, erectile dysfunction, abdominal pain and pain in his hands. Many of the conditions that concerned Mr. Papineau before April 2010 were the conditions he complained about after April 2010.

[334] At trial, Mr. Papineau described how Lyme disease had forced him to limit his recreational, social and sports activities. On cross-examination, Mr. Papineau agreed that he had failed to mention a 7,000 km trip by motorcycle from Ottawa to Tuktoyaktuk he embarked upon in August 2019 and documented on Facebook, as well as several shorter but still substantial motorcycle tours through Newfoundland, the Gaspe, northern Ontario and the Dominican Republic.

[335] In a letter dated August 13, 2015, Mr. Papineau’s family physician, Dr. Roy, said that, by that time, she had seen Mr. Papineau more than 19 times. Dr. Roy said that Mr. Papineau was able to carry out his activities of daily living normally and that he had no work limitations. Dr. Roy said there were no risks associated with Mr. Papineau returning to his regular occupation and she did not anticipate any further complications. Asked about the trip to Tuktoyaktuk, Dr. Roy said that she believed that such a voyage would have required a good sense of balance and some concentration.

[336] A vocational assessor, Cindi Goodfield, said that Mr. Papineau’s employability had been restricted as a result of his Lyme disease. She said this was attributable to diminished stamina, pain and balance issues as well as cognitive difficulties. At trial, Ms. Goodfield acknowledged that she had not considered Dr. Roy’s opinion that Mr. Papineau had no work limitations.

[337] A neuropsychologist, Dr. David Kurzman, diagnosed Mr. Papineau with a mild neurocognitive disorder due to another medical condition (Lyme disease.) Dr. Kurzman agreed on cross-examination that Lyme disease is a medical diagnosis and not a diagnosis that was within his scope of expertise. On cross-examination, Dr. Kurzman agreed that his diagnosis of a mild neurocognitive disorder would remain and apply to Mr. Papineau whether Mr. Papineau had Lyme disease or not.

[338] I note that Mr. Papineau told Dr. Kurzman in April 2018 that he could no longer ride a motorcycle because of balance problems. Assuming that this was true at the time, Mr. Papineau’s balance problems must have cleared up in the ensuing year, as evidenced by the 2019 trek to Tuktoyaktuk.

[339] For the years Mr. Papineau filed income tax returns, his income after 2010 was generally comparable to or higher than his income before 2010. Mr. Papineau’s income was as follows: $6,250 in 2007; $14,031 in 2008; $33,209 in 2009; $13,979 in 2010; $17,408 in 2011; $26,753 in 2012; $34,041 in 2013; $32,216 in 2014; $29,673 in 2015; $15,625 in 2016; $37,408 in 2018; $30,016.65 in 2019; and $34,838.20 in 2020.

[340] Mr. Papineau’s income was low in 2010 and 2011. These were the years he operated Charliewoods, the restaurant and bar in Kemptville he named after Ms. Charlebois. Although Mr. Papineau suggested at trial that business at Charliewoods was going well before he became too ill to operate it due to Lyme disease, there was evidence that, by April 2010, Charliewoods was already on financial thin ice. On cross-examination, Mr. Papineau agreed that Charliewoods owed $25,000 in unpaid retail sales tax by that time. In May 2011, Mr. Papineau’s business partner, Myles Birket Foster, sued Mr. Papineau for $24,797.42, alleging that in August 2010 he had given Mr. Papineau money to pay the unpaid sales tax, that Mr. Papineau had failed to do so, and that Mr. Foster had then paid the amount owing personally. On cross-examination, Mr. Papineau did not deny that Charliewoods was having financial problems in 2010 but insisted that Mr. Foster was to have put up the funds to pay the sales tax and not him.

[341] The evidence at this trial satisfied me that, as I said at the outset of these reasons, Lyme disease can have devastating and life-altering consequences for its sufferers. A negligent failure to diagnose and treat Lyme disease during the timeframe the disease can be prevented from developing could have the same consequences, particularly for a patient who was in good health pre-incident and who did not recover as quickly as Dr. Roy’s assessment of Mr. Papineau suggested Mr. Papineau did.

[342] In this case, if I assume for purposes of assessing damages that (1) Mr. Papineau had Lyme disease; and (2) as a result, the condition of his health after April 2010 was worse than it otherwise would have been, I would assess Mr. Papineau’s general damages at $100,000. In arriving at this assessment, I have considered that Dr. Romer-Sierra tested Mr. Papineau’s testosterone in 2012 and that Mr. Papineau subsequently began testosterone replacement therapy. At the time, Mr. Papineau told Dr. Romero-Sierra that he believed that “100 per cent of his symptoms” were due to decreased testosterone. I note that Dr. Hawkins said he was not aware of any causative link between Lyme disease and testosterone levels. I have also considered the very stressful events Mr. Papineau was dealing with in the early 2010s, including the loss of a business he had built, invested in and named after his partner, Ms. Charlebois, his business partner’s request of Ms. Charlebois that she assume control of the operations of the business from Mr. Papineau and three legal separate proceedings involving his former spouse, his business partner and a contractor, in addition to this one. There was also a reference to a bankruptcy in Dr. Romero-Sierra’s notes. I am satisfied that these stressful situations would have taken a toll on Mr. Papineau and affected his enjoyed of life quite apart from any other health problems. I would not award Mr. Papineau damages for symptoms caused by unrelated problems such as low testosterone or stress. In assessing Mr. Papineau’s general damages, I have also considered Dr. Roy’s positive assessment of his condition in 2015.

[343] Mr. Papineau has not satisfied me that he is entitled to damages for loss of income. Given Mr. Papineau’s pre-April 2010 medical history, his income earning history before and after April 2010, Charliewoods’ financial difficulties unrelated to his health, Dr. Iyengar’s comments about his ability to work as of November 2011, Dr. Maranda’s comments about his active lifestyle and ability to exercise at a high level in early 2012, his unrelated health issues post-April 2010, Dr. Roy’s positive assessment about his condition and ability to work in 2015, his on-going ability to work as a private investigator, his ability to withstand the rigors of long motorcycle voyages and the impact the time devoted to these long voyages in 2019 and later would have had on his earned income, I would have assessed Mr. Papineau’s damages for loss of past and future income at zero.

Conclusion with respect to Issue #4

[344] I would have assessed Mr. Papineau’s general damages at $100,000. I would not have awarded Mr. Papineau damages for either past or future income. I would have awarded these damages against Dr. Brisebois only and only, obviously, if I had found that Dr. Brisebois’s treatment of Mr. Papineau fell below the applicable standard of care and that Mr. Papineau had Lyme disease. I have found that Mr. Papineau did not mention Lyme disease to Dr. Romero-Sierra until November of 2011. There was evidence that the window for preventing the development of Lyme disease would have closed by that time; the experts agreed that Lyme disease must be treated within 30 days of the onset of symptoms. There was no evidence that the delay from November of 2011 until Mr. Papineau had the ELISA test in May 2012 or until Dr. Romero-Sierra offered him a referral to an infectious disease specialist in June 2012 would have exacerbated Mr. Papineau’s condition. Even if I had found that Dr. Romero-Sierra’s treatment of Mr. Papineau had fallen below the standard of care and that Mr. Papineau had Lyme disease, I would not have assessed any damages against Dr. Romero-Sierra.

A further issue: Mr. Papineau’s attacks ON Dr. Romero-Sierra’s integrity and reputation

[345] In addition to alleging negligence against Dr. Romero-Sierra, Mr. Papineau launched an aggressive assault on Dr. Romero-Sierra’s integrity and reputation. Mr. Papineau’s counsel accused Dr. Romero-Sierra of lying about several different matters, of destroying a hospital record, of fabricating notes and of over-billing OHIP. Some of these accusations are detailed in my earlier summary of Dr. Romero-Sierra’s cross-examination.

[346] Mr. Papineau called as witnesses three infectious disease specialists from the Ottawa Hospital and two Ottawa Hospital technical employees in an attempt to prove that Dr. Romero-Sierra had lied to Mr. Papineau about having telephoned the hospital’s on-call infectious disease specialists to discuss Mr. Papineau’s case. I can only assume that this did not go as planned for Mr. Papineau. The evidence of the hospital’s technical employees proved that calls were placed from Dr. Romero-Sierra’s telephone number to the hospital’s infectious diseases department several times during the period that Dr. Romero-Sierra and Mr. Papineau were discussing Lyme disease and Mr. Papineau was investigating private testing labs and Lyme specialists. These calls were placed on June 6, 2012, June 29, 2012, twice on July 5, 2012, on July 6, 2012 and on twice on July 27, 2012. Dr. Romero-Sierra’s chart included a note dated July 27, 2012 on a copy of the IGeneX tests results that said “discussed with infectious disease on call at Civic Hospital NO LYME.” Despite this, in his written closing submissions, Mr. Papineau maintained that Dr. Romero-Sierra “never called infectious disease.”

[347] Mr. Papineau’s counsel argued that Dr. Romero-Sierra lied when he told Mr. Papineau that the on-call infectious disease specialists had told him that Mr. Papineau did not have Lyme disease, because the specialists had testified that they would not have diagnosed a patient over the telephone. In my view, it does not follow from the specialists’ evidence that Dr. Romero-Sierra lied to Mr. Papineau. Dr. Romero-Sierra said he spoke with infectious disease specialists two or three times. He testified that he provided the specialists with Mr. Papineau’s history and told them what his test results were. I am satisfied that the calls described by Dr. Romero-Sierra confirmed Dr. Romero-Sierra’s impression that Mr. Papineau did not have Lyme disease and that it would not have been a lie to tell Mr. Papineau that the infectious disease specialists had said that he did not have Lyme disease.

[348] Mr. Papineau also accused Dr. Romero-Sierra of having lied by saying that the infectious disease specialists at the Ottawa Hospital and two of his colleagues had supported his decision to prescribe the antibiotics Dr. McShane had prescribed. Dr. Romero-Sierra said he did not discuss Dr. McShane’s prescriptions with either the specialists or his colleagues. He pointed out that his discussions with the specialists and his colleagues about Mr. Papineau’s case took place before he found out about Dr. McShane’s prescriptions, which was not until September 13, 2012. Dr. Romero-Sierra said he had discussed with the specialists and his colleagues whether to consider prescribing a lengthy course of doxycycline for Mr. Papineau.

[349] There were some contradictions in Dr. Romero-Sierra’s testimony, but I do not consider them to be evidence of dishonesty. For example, Dr. Romero-Sierra denied at trial having said that he had been bitten by ticks many times, when he had made that very statement at his examination for discovery. At trial, Dr. Romero-Sierra said he had been bitten by ticks two or three times and perhaps he had thought it was many times at his discovery, but he did not think so now. I do not see that anything turns on this. Similarly, at his examination for discovery Dr. Romero-Sierra said that he prescribed Dr. McShane’s medications as a “placebo.” At trial, he denied that this was why he prescribed the medications and said he had not recalled having referred to a placebo. On cross-examination, Dr. Romero-Sierra said he first learned that Mr. Papineau had a concern about Lyme disease in May or June 2012. Mr. Papineau’s counsel accused Dr. Romero-Sierra of lying because Mr. Papineau had in fact asked for a Lyme disease test in November 2011. I am satisfied that Dr. Romero-Sierra was not lying or trying to hide anything; he had already answered many questions about the November 2011 test request in his examination in chief. It appeared obvious to me that he had simply misspoken.

[350] Dr. Romero-Sierra agreed that a note in his file dated June 1, 2012 was misdated. Mr. Papineau’s counsel accused Dr. Romero-Sierra of having fabricated the note and having admitted to the incorrect date only after he realized that Mr. Papineau could prove that Dr. Romero-Sierra did not see him or speak with an infectious disease specialist that day. Obviously, a note in a chart should not have the wrong date on it but such a mistake can easily be attributed to inattention or having too much work and not enough time; a misdated note is not necessarily anything more than a misdated note.

[351] Mr. Papineau’s counsel also suggested that Dr. Romero-Sierra had received a copy of the KDH records from April 14, 2010 and then destroyed them. The foundation for this accusation was that the triage nurse’s note had referred to a dog “in the vicinity” having Lyme disease and Dr. Romero-Sierra had used the same phrase in one of his notes. Mr. Papineau’s counsel suggested that Dr. Romero-Sierra had destroyed these records to hide evidence that he knew all along that Mr. Papineau was concerned about Lyme disease. Dr. Romero-Sierra denied the accusation. Dr. Romero-Sierra said he did not have the KDH records. There was no reason to believe that the KDH would have sent these records to Dr. Romero-Sierra, because the “family physician” box on the records was blank and there was no evidence the KDH knew that Dr. Romero-Sierra was Mr. Papineau’s family doctor. Further, in my view, these records would have supported Dr. Romero-Sierra’s impression that Mr. Papineau had never been bitten by a tick and would have assisted Dr. Romero-Sierra in his efforts to assure Mr. Papineau that he did not have Lyme disease, because they showed that Mr. Papineau had been diagnosed with cellulitis in April 2010 and not erythema migrans. I find that Dr. Romero-Sierra did not have the KDH records when he treated Mr. Papineau. The suggestion that Dr. Romero-Sierra had the KDH records and destroyed them is not only outrageous but makes no sense.

[352] I assume that Mr. Papineau’s motive was to attempt to destroy Dr. Romero-Sierra’s credibility, so that Dr. Romero-Sierra’s evidence that Mr. Papineau did not mention Lyme disease before November 2011 would not be believed. Litigants should be hesitant to accuse other litigants of dishonesty, particularly where the litigant on the receiving end is a professional whose reputation is essential to their livelihood. Accusations of dishonesty should never be made in the absence of an evidentiary foundation. The accusations against Dr. Romero-Sierra were not supported by the evidence, took up a considerable amount of court time and ultimately served no purpose.

[353] Dr. Romero-Sierra did not deserve the treatment he received from Mr. Papineau and his counsel at this trial.

Final disposition of the action

[354] For these reasons, having found that there was no breach of the standard of care in respect of any matter at issue on the part of either Dr. Brisebois or Dr. Romero-Sierra, Mr. Papineau’s action is dismissed.

Costs

[355] The parties are encouraged to settle the issue of costs.

[356] In the event that the parties are unable to settle costs, the defendants shall have until April 26, 2024 to deliver written costs submissions of no more than 10 pages, not including their bill of costs. The plaintiff shall then have until May 17, 2014 to deliver the same. At their option, the defendants may serve brief reply submissions of not more than five pages or less no later than May 31, 2024.

Released: April 8, 2024

Williams J.

COURT FILE NO.: CV-13-00058490-0000

DATE: 2024/04/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FRANK PAPINEAU

Plaintiff

– and –

DR. ROMERO-SIERRA & DR. JOHNNY BRISEBOIS

Defendants

REASONS FOR DECISION

Williams J.

Released: April 8, 2024

[^1]: The drawing was prepared by the Bay Area Lyme Foundation. There was no expert evidence at trial about the appearance of blacklegged or deer ticks (that is to say, what they look like) or about whether the appearance of ticks varies regionally.

[^2]: As I noted in para. 24, above, the date of the bite is important. The chart of the KDH shows that Mr. Papineau told the triage nurse and Dr. Brisebois that he was bitten the day before he attended at the hospital, which would have been on April 13, 2010. There was evidence at trial about how long after a tick bite the rash associated with Lyme disease is likely to appear, with authoritative references (including references from the Public Health Agency of Canada and the U.S. Centers for Disease Control and Prevention) agreeing that the typical range is three to about 30 days.

[^3]: R. v. Mohan, 1994 CanLII 80 (SCC), 1994 SCC 80, [1994] 2 S.C.R. 9.

[^4]: The standard of care expert retained on behalf of Dr. Brisebois, Dr. Sivilotti, was of the opinion that Dr. Brisebois had met the standard of care owed to Mr. Papineau, in part because he had considered Lyme disease and had advised Mr. Papineau to return to the emergency department if there were any changes to his rash.

[^5]: Mr. Papineau has two lawyers of record. Mr. Switzer cross-examined Dr. Sivilotti.

[^6]: See footnote 2.

[^7]: In respect of the four medical expert witnesses, as this was a judge alone trial, the parties agreed to a “blended voir dire” format, where the voir dire evidence would also be considered to be evidence at the trial if the witness was qualified to testify.