Court File and Parties

Court File No.: CV-19-3728-0000 Date: 2024-10-21

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton, Ontario L9T 1Y7

Re: Aani Vartanian, Sasoun Vartanian, and Tyson Jemmott, Plaintiffs -and- A. McDowell, O. Zayid, C. Bloom, S. Valadka, T. Durrant, and J. Feberwee, Defendants

Before: C. Chang J.

Counsel: H. Elmaleh, J. Syrtash, for the Plaintiffs D. Charach, H. Young, C. Li (Student-at-Law), for the Defendants

Heard: October 16, 2024 (in-person)

Ruling Re: Questions to be Put to the Jury

[1] This ruling disposes of the parties’ dispute about the wording of the questions to be put to the jury following the presentation of the evidence and counsel’s respective closing arguments in this trial. Those questions relate to: 1) the applicable standard of care; and 2) causation. The parties have resolved the issue of damages.

[2] In accordance with best practices, counsel reviewed their draft jury questions with each other and attempted to resolve any disputes. I directed a hearing of the outstanding issues [1] and invited the parties’ respective written and oral submissions. Those issues relate to the issue of causation; specifically: 1) whether “but for” or “caused or contributed” language should be used; and 2) whether the jury should be required to provide particulars of its causation determinations.

[3] For the reasons set out below, I find that the causation questions to be put to the jury should use “but for” language and require particulars.

Factual Background

[4] In April 2014, the plaintiff, Aani Vartanian, reported to her family physician, Anthony McDowell, that she felt a lump during a self-examination of her right breast. Ms. Vartanian subsequently underwent mammographic and ultrasonic imaging between 2014 and 2017, some of which was analyzed and reported on by Saulius Valadka and Jillian Feberwee. Ms. Vartanian was told that the results of those tests were normal.

[5] After reporting flu-like symptoms in January 2018, Ms. Vartanian underwent additional breast imaging and a biopsy of her breast tissue. Unfortunately, the results of those tests showed that she had a cancerous tumour in her right breast. Ms. Vartanian underwent a right breast mastectomy, including the removal of a number of lymph nodes, as well as radiation therapy, chemotherapy, and hormone therapy.

[6] Ms. Vartanian alleges that Dr. McDowell, as her family physician, and Drs. Valadka and Feberwee, as the radiologists who analyzed and reported on some of her imaging, were negligent in failing to recognize that the lump she first reported in April 2014 was cancerous. She claims that the delayed diagnosis of her cancer has adversely impacted her life expectancy and her quality of life. Drs. McDowell, Valadka, and Feberwee deny that they were negligent. They argue that their respective exercises of clinical judgment were reasonable and met the standards of care applicable to family physicians and radiologists, respectively. Drs. McDowell, Valadka, and Feberwee also say that, even if they breached the respectively applicable standards of care, those breaches did not cause Ms. Vartanian’s unfortunate outcome.

[7] The only remaining defendants are Drs. McDowell, Valadak, and Feberwee, and the action has proceeded to trial by judge and jury.

[8] The plaintiffs, on one hand, and the defendants, on the other, have each prepared drafts of the questions that they want put to the jury. The substantive content in each of the respective sets of questions is identical for each of the defendant doctors. The disputed wording relates to causation and is contained in the following draft questions.

From the plaintiffs: 3: Have the plaintiffs satisfied you, on a balance of probabilities, that Dr. [McDowell/Valadka/Feberwee]’s breach of the standard of care caused or contributed to Ms. Vartanian’s injuries?

From the defendants: 2(a): If your answer to question 1(a) is yes, have the plaintiffs satisfied you, on a balance of probabilities, that but for the breach of the standard of care, Aani Vartanian’s injuries would not have occurred? 2(b): If your answer to question 2(a) is yes, how did the breach of the standard of care cause Aani Vartanian’s injuries? Please provide clear and specific answers

Issues

[9] The issues that I must determine by way of this ruling are as follows: a. Should the question to the jury on the causation issue use “caused or contributed to” language or “but for” language? b. Should the jury be asked to provide particulars of their determinations on the causation issue?

Analysis

Issue: Causation Language

[10] There is no dispute that the “but for” test for causation applies. However, like in Sean Omar Henry v Dr. Marshall Zaitlen, 2022 ONSC 318, the dispute in the case-at-bar is how that test should be articulated in the questions to the jury, so that its members are provided with “the greatest clarity of the correct test to be applied” (Zaitlen, at para. 21).

Parties' Positions

[11] The plaintiffs argue that “caused or contributed to” language should be used as contained in their draft question 3. They submit that, unlike in other types of negligence cases, a plaintiff who alleges delayed medical diagnosis must prove that the delay caused or contributed to the unfavourable outcome. The plaintiffs further submit that the test for causation is legally complex and difficult to properly understand, and that using “but for” would confuse the jury or, worse yet, leave them in doubt as to what the phrase means.

[12] The defendants argue that “but for” language should be used as contained in their draft question 2(a). They submit that, in the case-at-bar, there are “clean separations of discrete issues” that are applicable to each of the defendant doctors and, therefore, the use of “caused or contributed to” language is inherently confusing. There is, they argue, no overlap whatsoever in the different tasks performed by each of the different defendant doctors at different points in time between 2014 and 2017.

Decision

[13] In my view, the “but for” language should be used in the applicable question to the jury on the issue of causation.

[14] Neither the general characteristics required of jury questions nor the process for finalizing them is controversial and I accept and follow the Court of Appeal for Ontario’s guidance on them in Sacks v Ross, 2017 ONCA 773, at paras. 62-63. From that guidance, I distill, among other things, that the assessment of what specific questions are to properly be put to jurors in any given case depends on the specific issues to be determined by them in that specific case and in consideration of the applicable factual matrix. The questions must be “tailored to the specific findings of fact necessary to decide the case” and should be stated “as simply and clearly as possible” (see: Sacks, at para. 62; Zaitlen, at para. 36).

[15] The test for causation requires the plaintiff to prove that “the injury would not have occurred without the defendant’s negligence” (see: Clements v Clements, 2012 SCC 32, at para. 8; Sacks, at para. 118).

[16] In the case-at-bar, Ms. Vartanian claims that Drs. McDowell, Valadka, and Feberwee breached the respective standards of care applicable to them and that those breaches caused her to suffer an adverse outcome. As outlined above, Dr. McDowell was Ms. Vartanian’s family physician and Drs. Valadka and Feberwee were the radiologists who interpreted and reported on some of Ms. Vartanian’s breast imaging studies.

[17] In my view, considering the applicable factual matrix and having regard to the factual findings necessary to decide the case, the better articulation of the test for causation in the question to the jury would use “but for” instead of “caused or contributed to”.

[18] I am persuaded by the defendants’ argument that the alleged acts and/or omissions of each of the defendant doctors should properly be viewed in the discrete context of the respective standards of care applicable to them and whether any applicable breach caused Ms. Vartanian’s adverse outcome. Although this case involves an alleged delayed diagnosis with multiple alleged tortfeasors, the applicable facts specific to each defendant doctor’s alleged negligence are, to a material degree, different. The issue of Dr. McDowell’s negligence is to be assessed in the context of his role as Ms. Vartanian’s physician. The issue of Dr. Valadka’s negligence is to be assessed in the context of his role as Ms. Vartanian’s radiologist interpreting her imaging in 2014. The issue of Dr. Feberwee’s negligence is to be assessed in the context of her role as Ms. Vartanian’s radiologist interpreting her imaging in 2017.

[19] Borrowing from Turnbull J. in Uribe v Tsandelis, 2019 ONSC 6242, at para. 17, the plaintiffs’ theory in the case-at-bar is that, for each of Drs. McDowell, Valadka, and Feberwee, had he/she done a and b, Ms. Vartanian’s cancer would have been discovered sooner than it was. Although Uribe was not a delayed diagnosis case, I find the applicable analysis to be of assistance because of the discrete contexts applicable to each of the defendant doctors in the case-at-bar.

[20] In my view therefore, the jury in the case-at-bar would better and more clearly understand the test for causation if the applicable question uses “but for” language than if it uses “caused or contributed to” language. Like the observation of Wilson J. (as she then was) in Sacks v Ross, 2015 ONSC 7238, at para. 15 (as cited and adopted by the Court of Appeal for Ontario in Surujdeo v Melady, 2017 ONCA 41, at para. 94), I also see no advantage to departing from the legal test as articulated by the Supreme Court of Canada in Clements when asking the jury to answer the questions on causation.

[21] I am also mindful that the wording of questions to be put to a jury is properly considered in the context of the wording of the jury charge. In the case-at-bar, I anticipate that my charge to the jury will be sufficiently clear and properly explanative of the legal test for causation and thereby limit the likelihood of confusion.

[22] I therefore find that the defendants’ draft question 2(a) should be put to the jury.

Issue: Particulars on Causation

[23] There is no dispute that the court has jurisdiction to require a jury to provide particulars of its findings. There is also no dispute that a jury should by required to provide particulars of its findings respecting the standard of care; i.e., how it determined that the defendant breached it.

[24] The dispute is whether the jury should be required to provide particulars of how any breach(es) of the standard(s) of care caused Ms. Vartanian’s adverse outcome.

Parties' Positions

[25] The plaintiffs submit that no particulars on causation should be required of the jury because its deliberations are private. They also argue that there may be multiple reasoning paths that could lead to each finding of causation and requiring particulars could undermine the integrity of the jury’s verdict because of the applicable complexity. The plaintiffs further argue that the verdict could also be undermined by the jury’s improper articulation of the applicable particulars. The plaintiffs do not proffer any wording for a question asking for particulars.

[26] The defendants submit that the jury should be required to provide particulars of its findings on causation in the wording of its draft question 2(b). They argue that the purposes of requiring those particulars are: 1) to assist the court about whether the jury understood the trial judge’s instructions and appropriately relied on the evidence in making its findings; and 2) to ensure that the jury’s findings on causation have a proper evidentiary foundation. They further submit that fulfilling these purposes “is crucial at both trial and appeal”.

Decision

[27] In my view, the jury should be required to provide particulars of their findings on the issue of causation.

[28] There is no dispute that questions to a jury with respect to the standard of care issue should require it to specify in what respects the defendant breached that standard. As observed by the Supreme Court of Canada, the provision of those particulars allows the court to avoid problems associated with the inscrutability of the jury’s responses to questions and to test the jury’s understanding of those questions (see: Ter Neuzen v Korn, at para. 53).

[29] Consistent with the Supreme Court of Canada’s observations in Ter Neuzen respecting the utility of obtaining particulars of the jury’s determinations on the standard of care issue, in my view, justice would be equally well served in the case-at-bar by also obtaining particulars on the causation issue. Those particulars would assist the court about whether the jury understood the instructions in the jury charge and the questions that they answered.

[30] I do not accept the plaintiffs’ argument that the existence of multiple reasoning paths on the causation issue should preclude requiring a jury to provide particulars of its findings. The same could be said of requiring particulars on the standard of care issue, where there are also multiple reasoning paths available to the jury. It has nonetheless become the norm to require particulars of a jury’s findings on the standard of care issue.

[31] I also do not accept the plaintiffs’ argument that requiring particulars on causation necessarily risks undermining the integrity of the jury’s verdict because of its possible inability to properly articulate those particulars. Again, the wording of questions to be put to a jury are properly considered in the context of the wording to be used in the jury charge. In the case-at-bar, any concerns about the jury’s inability to properly articulate the requested particulars can sufficiently be addressed by a suitably robust jury charge that, among other things, instructs the jurors on how best to articulate their answers to the various questions, including the applicable particulars.

[32] I therefore find that the jury should be required to provide particulars of their causation findings and the defendants’ draft question 2(b) should be put to it.

Disposition

[33] I therefore order that the wording of the causation questions to be put to the jury shall be in accordance with draft questions 2(a) and 2(b) proposed by the defendants.

C. Chang J. Date: October 21, 2024

Note

[1] I note that, although not raised as a disputed issue, there are differences in the parties’ respective proposed draft questions on the standard of care issue. Counsel shall address these differences among themselves at the earliest opportunity and, if unable to reach a consensus, they shall advise me forthwith, so that I can schedule a timely hearing to address any outstanding issues.