Forget et al. v. Gibb et al., 2026 ONSC 626

Court File No.: CV-12-000000301-0000

Date: 2026-04-14

Ontario Superior Court of Justice

Between:

Andre Forget and Christina Welton Plaintiffs

– and –

Dr. Graham Gibb, Jane Doe 1, Jane Doe 2, Jane Doe 3, Jane Doe 4, and Peterborough Regional Health Centre Defendants

Counsel:

Bryan D. Rumble, Counsel for the Plaintiffs

Jaan Lilles and Jonathan Mertz, Counsel for the Defendant, Dr. Graham Gibb

Heard: September 9–12, 16–19, and 24–26, 2025

Before: S. J. Woodley, J.

REASONS FOR DECISION

OVERVIEW

[1] This action involves allegations of negligence made by the Plaintiff, Andre Forget (“Mr. Forget”), and his spouse, Christine Welton (“Ms. Welton”), as against the Defendant, Dr. Graham Gibb (“Dr. Gibb”).

[2] The Plaintiffs allege that Dr. Gibb breached the applicable standards of care owed to Mr. Forget during the performance of two abdominal surgeries, which took place on December 14, 2010 and December 24, 2010, and during Mr. Forget’s postoperative care.

[3] To summarize, in or about November 2010, Mr. Forget noticed a small bulge under his incision scar from where he had a prior hernia repair. Mr. Forget elected to have incisional hernia repair surgery and was referred to Dr. Gibb, a general surgeon, by his family physician, Dr. Geoffrey Grieve.

[4] On December 14, 2010, Dr. Gibb performed Mr. Forget’s incisional hernia repair at Peterborough Regional Health Centre (“PRHC”). Following the surgery, Mr. Forget remained at PRHC overnight and was discharged the next day in stable condition. All appeared well until Mr. Forget attended PRHC’s emergency room feeling unwell on December 21, 2010. Dr. Gibb attended at PRHC and assessed Mr. Forget after he was admitted by the triage nurse. Ultimately, Dr. Gibb advised Mr. Forget that emergency surgery was required. Dr. Gibb completed the emergency surgery on Mr. Forget on December 22, 2010.

[5] After his emergency surgery on December 22, 2010, Mr. Forget remained at PRHC for observation. On December 24, 2010, Mr. Forget developed a fistula that was leaking enteric contents. Dr. Gibb decided not to re-operate, but to treat Mr. Forget’s fistula conservatively.

[6] Mr. Forget remained at PRHC until January 11, 2011, when he was discharged and permitted to return home. On discharge, Mr. Forget received instructions regarding wound management. By March 2011, the fistula had healed. Mr. Forget continued to struggle with superficial wound infections and Dr. Gibb continued to manage Mr. Forget’s wound care. During this period, Mr. Forget developed a further hernia, and Dr. Gibb referred Mr. Forget to another surgeon, Dr. Okrainec, who specialized in complex hernia repairs.

[7] Mr. Forget later underwent successful abdominal wall reconstruction surgery.

[8] Mr. Forget has been on long-term-disability, funded by his employer, Co-operators, since January 2014. Mr. Forget claims to continue to suffer from ongoing chronic abdominal pain, discomfort, bowel blockages and other injuries which prohibit him from working and have caused him a loss of enjoyment. Mr. Forget asserts that his inability to work and ongoing conditions are all related to the surgeries performed by Dr. Gibb.

[9] Dr. Gibb denies that the treatment, care and services that he provided to Mr. Forget fell below the standard of care expected of a prudent and responsible physician. Consequently, Dr. Gibb denies that damages are due to the Plaintiffs.

[10] The issues to be determined are:

a. Whether Dr. Gibb breached any standards of care;

b. If a breach occurred, whether the breach is causally related to Mr. Forget’s alleged injuries; and

c. Whether the Plaintiffs are entitled to any damages.

[11] The factual findings regarding whether a breach of the standard of care occurred are primarily reliant on the credibility and reliability of the expert witnesses retained by the parties. To this end, the Plaintiffs rely upon the evidence of Dr. Bahram Shahi, and the Defendant relies upon the evidence of Dr. Lloyd Smith.

[12] All parties advise that damages must be determined, regardless of this court’s findings regarding any breach of the standard of care.

ISSUES TO BE DETERMINED

[13] The Plaintiffs allege that there are several incidents where Dr. Gibb breached the standard of care applicable to a general surgeon in 2010/2011. The questions that arise from these allegations are as follows:

a) The December 14, 2010 Surgery

i. Did Dr. Gibb meet the standard of care when he explained the method/risks of the procedure to Mr. Forget prior to the December 14, 2010 surgery?

ii. Did Dr. Gibb meet the standard of care when he did not require Mr. Forget to engage in preoperative bowel preparation prior to the December 14, 2010, surgery?

iii. Did Dr. Gibb meet the standard of care when he did not “run the bowel” during the December 14, 2010, surgery?

iv. Did Dr. Gibb meet the standard of care in completing his operative note for the December 14, 2010, surgery?

b) The December 22, 2010 Surgery

i. Did Dr. Gibb meet the standard of care when he did not “run the bowel” during the December 22, 2010, surgery?

ii. Did Dr. Gibb meet the standard of care when he repaired the bowel using a primary repair instead of side-to-side anastomosis?

c) Postoperative Care

i. Did Dr. Gibb meet the standard of care by treating Mr. Forget’s wound infections and/or when he referred Mr. Forget to another surgeon?

d) Damages

What damages, if any, were suffered by Mr. Forget and/or Ms. Welton that were caused by a breach of the standard of care?

THE EVIDENCE

I. Evidence of the Non-Expert Witnesses

a) Evidence of Andre Forget, Plaintiff

[15] Mr. Forget was born on May 13, 1963. He was 47 years of age in December 2010, when Dr. Gibb performed the two surgeries at issue. Mr. Forget was 62 years old at the time of the trial in September 2025.

[16] Mr. Forget holds a bachelor’s degree from the University of Ottawa and a post-graduate certificate in Administration at Edinburgh University in Scotland. He was employed with the insurance company, Co-operators, as a Claims Supervisor for the Peterborough/Belleville region until January 2014 when he was placed on long-term disability.

[17] Mr. Forget resides in Peterborough with his spouse, Ms. Welton, who is a Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”), claimant.

i. Medical History and Background

[18] Mr. Forget testified that in 1982 he had surgery in Ottawa for a hernia on his right groin near his leg.

[19] In May 1997, he had surgery for a small bowel obstruction.

[20] In 1999, he had his first incisional hernia repair following the 1997 bowel obstruction surgery.

[21] In March 2000, Mr. Forget suffered a partial bowel obstruction in Las Vegas and was hospitalized. A tube was used to drain and settle his bowel, and the blockage was resolved without further intervention.

[22] In May 2000, Mr. Forget had a further hernia repair which he said was connected to the partial blockage in March 2000. He testified there was a new tear in his abdomen that required day surgery. This surgery was completed at Credit Valley Hospital in Mississauga by Dr. Woolfson.

[23] Mr. Forget testified that between 2000 and 2010 he had no other small bowel obstruction issues and ate a normal diet.

[24] In November 2001, Mr. Forget had a severe ear infection, was referred to a specialist, and was diagnosed with Meniere’s Disease. Mr. Forget testified that he was put on medication, Serc, that completely managed the disease and it did not affect his career.

[25] In April 2008, Mr. Forget had a deep vein thrombosis in his right leg and was treated with blood thinners. Later in 2008, Mr. Forget received a colonoscopy due to hemorrhoid bleeding which he believes occurred due to the use of the blood thinners.

[26] In June 2010, Mr. Forget lost consciousness in his bathroom. Mr. Forget testified that he had been experiencing dehydration at that time.

[27] In November 2010, Mr. Forget was experiencing debilitating Meniere’s attacks that caused balance issues and vomiting. Mr. Forget’s Serc medication was subsequently increased which took care of the issue and significantly reduced his symptoms.

ii. Life Before the Surgeries Performed by Dr. Gibb in 2010

[28] Mr. Forget testified that, prior to his two surgeries performed by Dr. Gibb in 2010, he was very physically active. Mr. Forget is a former Marine, marathon runner, scuba diver, and was a certified scuba instructor. Mr. Forget also golfed, attended the gym for strength training, played softball and operated a non-profitable scuba diving business with his spouse. He regularly walked their two dogs.

[29] Prior to his surgeries in 2010, Mr. Forget explained that his career and dive business were going well, and that he was also socially active. He was the President of the Peterborough Claims Adjuster Association and was hoping to be promoted to Regional Manager at Co-operators. He lived in a large house and had access to Ms. Welton’s family cottage, which he and Ms. Welton eventually purchased.

[30] Mr. Forget built decks, gardened, mowed his lawn, and removed the cottage’s docks at the end of each cottaging season. Any indoor tasks were completed by his spouse, and they had a cleaning woman attend every two weeks.

[31] Mr. Forget testified that he went to see his family doctor, Dr. Grieve, after he noticed a lump the size of a quarter around his belly button. Dr. Grieve referred him to Dr. Gibb.

[32] Mr. Forget testified that Dr. Gibb advised him that the lump was a minor hernia that could be repaired with laparoscopic surgery with minimal recovery time. Mr. Forget testified that there was no discussion about his prior health conditions, but he explained that he would always present a written copy of his previous medical history to every medical practitioner that he interacted with. Mr. Forget said that this was part of his training as an adjuster at Co-operators.

[33] Mr. Forget testified that, during his consultation with Dr. Gibb, he was advised that there was always a risk associated with surgery and, specifically, a risk of blood loss.

iii. The Surgeries Performed by Dr. Gibb

(a) December 14, 2010

[34] Mr. Forget testified that on December 14, 2010, he arrived at PRHC early, but due to a surgical backlog, his surgery was not completed until the afternoon. He recalls speaking with Dr. Gibb who advised him that the operating room was not prepared for laparoscopic surgery and so they should proceed with an open procedure instead.

[35] When Mr. Forget awoke in recovery, he recalled the nurses were taking his blood pressure and he was experiencing pain and tremors. He was administered pain medication and was advised that he would remain at PRHC overnight. Mr. Forget’s tremors had stopped by the next morning and a nurse provided him with discharge instructions. He was told to watch for redness around his incision wound and, if the wound got bigger, Mr. Forget was instructed to call Dr. Gibb or return to PRHC’s emergency room. He was not to do any heavy lifting. He was prescribed pain killers and on December 15, 2010, Mr. Forget was discharged home.

[36] Mr. Forget explained at trial that his recovery was going well until one of his dogs jumped up on his bed and accidentally opened his wound with its paw. At this time, Mr. Forget observed a leaking, smelly discharge secreting from his incision wound. He did not believe he had other symptoms at that time. Mr. Forget drove to PRHC and recalled that the emergency room doctor attempted to suction the “guck out”. Dr. Gibb attended at PRHC, examined him, and advised that he needed further surgery.

(b) December 22, 2010

[37] Other than the fact that Dr. Gibb had advised him that emergency surgery would be required, Mr. Forget could not recall any further details from his conversation with Dr. Gibb before the December 22, 2010, surgery.

[38] After the surgery, Mr. Forget explained that he woke up in a great deal of pain. In his postoperative conversation with Dr. Gibb, Mr. Forget testified that Dr. Gibb had apologized to him and explained that he had “nicked” Mr. Forget’s bowel during the first surgery on December 14, 2010, which is why the emergency surgery was required. Mr. Forget was put on epidural pain management and admitted to PRHC’s surgical ward, where he remained for three weeks.

[39] Mr. Forget testified that he was distressed while at PRHC and required a feeding tube to be put in his shoulder. He was on epidural pain management for seven days and a bag had been put on his wound to collect the discharge which was removed daily. He suffered from minor issues with his kidneys and was prescribed more medication.

[40] Mr. Forget testified that a fistula, caused by a leakage of bile from his bowels, created a second opening for fecal material to escape through his abdomen. He could see the fistula. He testified that he lost a lot of weight while at PRHC, dropping from about 180 pounds to 125 pounds.

[41] Mr. Forget testified that he was weak after being discharged from PRHC following the December 22, 2010, surgery. He had drainage pumps attached to his abdomen and required the assistance of home community care. A nurse measured the discharge/drainage from his abdomen on a daily basis and nurses came to his home to clean and pack his wound and check his vitals, including his weight. Mr. Forget was placed on diet and lifting restrictions. He began drinking Ensure beverages to help retain his weight and later progressed to eating soup, following the nurses’ recommendations.

[42] Mr. Forget testified that it took some time for his wound to heal. He went to see Dr. Gibb who advised he needed debridement surgery.

[43] Mr. Forget was placed on short term medical leave with Cooperators with a return-to-work manager in place.

(c) Debridement Surgeries

[44] On August 4, 2011, Mr. Forget attended PRHC for debridement surgery as Dr. Gibb advised that he needed to clean Mr. Forget’s wound. The surgery was completed and Mr. Forget was discharged home. While at home, Mr. Forget noticed that the wound appeared to be infected and returned to PRHC for further investigation.

[45] On August 6, 2011, Dr. Rowson performed a second debridement surgery. Mr. Forget remained in hospital until August 9, 2011, and was then discharged home with continuing home care.

[46] On August 23, 2011, Mr. Forget returned to PRHC with recurring wound issues. He had a CT scan and an IV pump was placed near his abdomen to administer antibiotics to him intravenously. On August 26, 2011, Mr. Forget received emergency debridement surgery for the infected wound. This emergency surgery was performed by the on-call surgeon, Dr. Petresec.

[47] Mr. Forget testified that, following the surgeries performed by Dr. Gibb, he developed a hernia in his stomach that was roughly the size of an orange or a grapefruit. Mr. Forget was concerned that his wound was not healing and requested that Dr. Gibb refer him to a different surgeon for a hernia repair.

[48] Mr. Forget testified that he could return to work with the large hernia under Co-operators’ return-to-work program.

iv. Abdominal Reconstruction Surgery with Dr. Brenneman and Dr. Mikula

[49] In November 2011, Dr. Gibb referred Mr. Forget to Dr. Okrainec at Toronto Western Hospital for the treatment of his recurrent incisional hernia. Dr. Okrainec then referred Mr. Forget to Dr. Brenneman at Sunnybrook Health Sciences Centre. Dr. Brenneman met with Mr. Forget on July 26, 2012, and examined and cleaned Mr. Forget’s incisional wound. Given Mr. Forget’s circumstances, Dr. Brenneman explained that he would recommend abdominal wall reconstruction surgery. Mr. Forget testified that Dr. Brenneman had explained to him that abdominal wall reconstruction surgery would include the placement of a lab grown mesh (made from pig material) inside Mr. Forget’s abdomen to repair the hernia. Dr. Brenneman referred Mr. Forget to Dr. Mikula to perform the surgery.

[50] Mr. Forget testified that, in July 2012, he had difficulty digesting and was in a lot of pain. He claimed that these symptoms did not exist prior to 2010. Mr. Forget further explained that his bowels were not functioning well during this period and he had a lot of medical appointments to attend, resulting in significant work-related absences.

[51] Dr. Mikula performed the abdominal wall reconstruction surgery with the assistance of Dr. Brenneman on September 19, 2012. Mr. Forget testified that Dr. Mikula’s surgery went well and resolved his hernia issues; however, he recalled a painful recovery process after the surgery.

[52] Mr. Forget testified that following his discharge home after Dr. Mikula’s surgery, community care continued to come to his home for quite some time. While he was recovering, he developed digestive issues. Mr. Forget testified that he began experiencing bowel blockages and, when these occurred, he could not eat. According to Mr. Forget, these new blockages were more severe than the blockage he experienced in 1997.

[53] Mr. Forget testified that he went to physiotherapy for stretches and to perform crunches to help with bowel movements. Mr. Forget testified that his digestive symptoms were a continuation of the issues that started in 2010.

v. Life Following the 2012 Surgery and Returning to Work at Co-operators

[54] Following the surgeries performed by Dr. Gibb in 2010, Mr. Forget testified that he “had to sell” his larger home and move to a smaller home because he could no longer lift anything over 15 to 20 pounds and the larger home was difficult to maintain.

[55] After recovering from his abdominal wall reconstruction surgery with Dr. Mikula in September 2012, Mr. Forget began a partial return-to-work plan that later became a full return-to-work plan.

[56] Prior to 2010, Mr. Forget claimed that he had always met or exceeded the expectations set for him by Co-operators on his performance reviews. He was the Joint Health and Safety Trainer for his region; however, he had been removed from that position in 2010 pending his return to full strength.

[57] As a result of his weight-lifting restrictions, Mr. Forget could no longer lift banker boxes or shovel snow and would experience painful bowel blockages and would require co-workers to cover for him at work. Prior to 2010, Mr. Forget was expected to travel, conduct agency visits and attend functions for Co-operators. After his surgeries in 2010 with Dr. Gibb, however, he had difficulty travelling and became rather unreliable in the workplace due to his medical issues. As a result, Co-operators assigned much of his duties to other employees.

vi. Mr. Forget’s Long-Term Disability (LTD) Application

[58] Mr. Forget testified that, at some point in 2013, his manager and human resources department met with him to discuss a long-term disability application. Mr. Forget told the court that his superiors at Co-operators wanted him to apply for LTD and take care of himself. Co-operators advised that if there were any “special projects” he could complete at home, they would consider assigning them to him. Mr. Forget testified that he prepared his LTD application with some assistance from Co-operators.

[59] Mr. Forget testified that he completed the LTD application form based on his diagnosis and symptoms that were interfering with his ability to work. He said he placed his symptoms in order from the most severe to the least severe.

[60] Mr. Forget testified that stress caused his Meniere’s disease to flare up and in 2014 he was experiencing stress related to “his surgical issues”. He experienced one to two Meniere’s attacks per month in 2014 and experienced hearing loss and disability such that he had total hearing loss in his left ear and required a hearing aid for his right ear.

[61] Mr. Forget testified that his application for LTD was successful in January 2014. He was placed on short-term disability and later put on LTD. Mr. Forget has not worked at Co-operators since he qualified for LTD and he is occasionally required to provide updates about his medical condition to the LTD carrier.

vii. Current Health Status

[62] Mr. Forget testified that there has been no change in his digestive and bowel issues since 2014. He continues to experience weekly issues and bowel blockages which affect his sleep and causes severe gas pains. He said his abdominal pain occurs daily, requiring up to eight Tylenol tablets per day for pain mitigation.

[63] Mr. Forget testified that he lost consciousness on March 31, 2013, and on March 4, 2014, and attended PRHC on both occasions.

[64] In June 2014, Mr. Forget was continuing to lose weight and was placed on anti-depressants because of depression.

[65] Mr. Forget testified that he had a left groin hernia surgery performed by Dr. Mikula on February 4, 2014. This surgery was not in the same area as the surgeries performed by Dr. Gibb in 2010.

[66] In April 2015, Mr. Forget underwent gallbladder surgery completed by Dr. Mikula without complications.

[67] In March 2016, Mr. Forget attended PRHC for a bowel blockage that was managed conservatively by Dr. Mikula and did not require surgery.

[68] From 2018 to 2020, Mr. Forget experienced unrelated bladder issues and infections which required surgeries in 2018 and 2020.

[69] On June 3, 2025, Mr. Forget experienced an unrelated seizure episode which required hospitalization.

[70] Mr. Forget testified that his Meniere’s disease has been relatively stable since 2014 and he takes medication daily to mitigate his symptoms. Nevertheless, he still experiences Meniere’s attacks once or twice a month, but those attacks are less severe than the ones he had experienced in 2014. He explained that his hearing is relatively good with his hearing aid.

[71] Although he has diverticulitis, Mr. Forget has not required further surgeries related to his diverticulitis. Since Dr. Mikula’s September 19, 2012 abdominal wall surgery, Mr. Forget has not experienced any hemorrhoid issues.

viii. Career Goals and Canada Pension Plan (CPP) Disability Application

[72] Mr. Forget testified that his goal was to work for Co-operators until age 65 and to become a Regional Manager.

[73] In his oral testimony, Mr. Forget explained that his assigned LTD case worker at Co-operators told him to apply for CPP disability benefits. The LTD insurer (Co-operators) completed the paperwork and asked Mr. Forget to sign it. He was approved for CPP disability benefits in November 2017.

[74] Mr. Forget advised that, today, he participates in modified travelling and family events. He continues to have weight-lifting restrictions in place. He curls and golfs with aids and modifications due to his physical restrictions. He no longer scuba dives and sold his equipment.

[75] Mr. Forget has been diagnosed with major depressive disorder which he believes is connected to his ongoing health issues. He advised that his marriage was affected and that he and his spouse sought marriage counselling assistance.

[76] Mr. Forget testified that, as both he and his spouse worked in the insurance industry, much of their socializing was with other insurance employees. He testified that the loss of his employment reduced his activities, outings, and friends in the insurance industry.

[77] Mr. Forget acknowledged that he continues to golf, curl and entertain friends and family. He travels regularly with his spouse. He attends baseball games, outdoor theater and enjoys activities with his spouse; however, he testified that he has experienced a negative change in his lifestyle due to his chronic abdominal issues.

[78] Mr. Forget testified that he has lost out on much enjoyment due to the issues resulting from his surgeries with Dr. Gibb in 2010. He has lost out financially, socially and professionally. Mr. Forget stated that he will be in pain and on Tylenol due to his abdominal issues for the rest of his life.

b) Evidence of Christina Welton, FLA Claimant

[79] Ms. Welton is Mr. Forget’s spouse of 28 years. She was 69 years old at trial.

[80] Ms. Welton testified with respect to Mr. Forget’s work at home and around their yard prior his surgeries with Dr. Gibb in 2010. She verified that Mr. Forget was responsible for most of the outdoor maintenance at their home and cottage. She testified that the housework was shared and that they had a cleaner who came to assist.

[81] Ms. Welton explained that, prior to the 2010 surgeries, she and Mr. Forget curled and played slow pitch together. They utilized their family cottage and scuba dived together. She explained that they started a non-profitable scuba business together that closed when Mr. Forget went on LTD. Ms. Welton advised that Mr. Forget’s last scuba diving trip was in Cozumel, Mexico in 2024. She confirmed that Mr. Forget was a long-distance runner who would run outside and on the treadmill. Ms. Welton confirmed that she and her spouse were socially active, attended many functions together and enjoyed holidaying together.

[82] Ms. Welton testified that Mr. Forget handled his Meniere’s disease well and, prior to 2010, his Meniere’s disease did not impact him regularly. She testified that Mr. Forget was social, well-liked by his friends and at work and was a good father.

[83] Ms. Welton thought that Mr. Forget’s December 14, 2010 surgery with Dr. Gibb was going to be a minimally invasive day surgery. It was not until she attended at PRHC that day to take Mr. Forget home that she learned he was going to be kept there overnight for monitoring.

[84] Ms. Welton confirmed Mr. Forget’s testimony regarding his recovery following the December 14, 2010 surgery, including the fact that one of their dogs opened his wound. She verified that it was at this time that they noticed an oozing, foul-smelling discharge coming from the area of the incision.

[85] Ms. Welton confirmed that Mr. Forget was in hospital for three weeks following his December 22, 2010 surgery and was bedridden until the end of January 2011. Ms. Welton testified that Mr. Forget required support at home, which she provided, and this caused her to miss a substantial amount of work.

[86] Ms. Welton confirmed Mr. Forget’s testimony regarding his recurrent infections and testified that Mr. Forget endured approximately five further surgeries as the result of infections in his wound. Ms. Welton explained that Mr. Forget developed a further hernia and was eventually referred to Drs. Brenneman and Mikula who operated on him successfully.

[87] Ms. Welton testified that Mr. Forget began experiencing abdominal issues and blockages after Dr. Mikula performed abdominal wall reconstruction surgery on Mr. Forget in 2012. She confirmed that Mr. Forget has ongoing abdominal pain issues and his bowel blockages continue sporadically.

[88] Ms. Welton testified that Mr. Forget was always proud and self-sufficient, but now he is restricted and angry due to his health condition. She confirmed that they attended marriage counselling and that Mr. Forget has attended mental health therapy which has assisted him in accepting his health-related limitations. According to Ms. Welton, Mr. Forget’s abdominal issues continue, but he has learned how to control and manage the issues.

[89] Ms. Welton testified that Mr. Forget now assists with gardening, takes out the garbage, walks the dogs, and helps move furniture. She and Mr. Forget spend their summers golfing, walking the dogs, and boating. They occasionally get together with friends and family to socialize. When they travel, they purchase larger seats on the airplane so that Mr. Forget is more comfortable and they modify their trips to accommodate Mr. Forget’s health limitations. Sometimes Mr. Forget will miss out on excursions due to his abdominal/bowel blockage issues.

c) Evidence of Dr. Geoffrey Grieve, Mr. Forget’s Family Physician

[90] Dr. Grieve was Mr. Forget’s family physician in August 2010.

[91] Dr. Grieve testified that on August 12, 2010, Mr. Forget presented at his office with a hernia and he referred him to Dr. Gibb, a general surgeon, for a further consultation. Dr. Grieve testified that, along with the referral, he provided Dr. Gibb with Mr. Forget’s general medical history and a cumulative patient profile.

[92] Dr. Grieve testified that by August 12, 2010, Mr. Forget had been diagnosed with Meniere’s disease, which had caused him to suffer from tinnitus, hearing loss and dizziness. Dr. Grieve testified that Mr. Forget’s Meniere’s symptoms were controlled with medication.

[93] In December 2010, Dr. Grieve received application materials and correspondence from Co-operators (sent to him by Mr. Forget), regarding a LTD application for Mr. Forget. Dr. Grieve completed the Physician’s Statement and made note of Mr. Forget’s ongoing postoperative complications following the pair of surgeries performed by Dr. Gibb in December 2010.

[94] In his Physician’s Statement, Dr. Grieve noted a primary diagnosis of recurrent small bowel obstructions along with a second diagnosis of major depressive disorder. He also made note of Mr. Forget’s Meniere’s disease, diverticulitis and deep vein thrombosis, which he believed were all exacerbated by Mr. Forget’s small bowel obstructions and further inhibited his functionality in the workplace. Dr. Grieve used his Physician’s Statement to explain that Mr. Forget had a poor prognosis for recovery. He noted that it was unlikely that Mr. Forget would be able to return to work, given that he had already attempted to do so with accommodations but was unsuccessful.

[95] Dr. Grieve also completed Mr. Forget’s CPP disability application. In that application paperwork, he noted that Mr. Forget had recurrent small bowel obstructions causing chronic pain, Meniere’s disease and depression. Dr. Grieve also explained that Mr. Forget had lost 34 pounds since 2008 and was becoming increasingly weak, occasionally pale, depressed and was often sleep deprived. Dr. Grieve testified that he was trying to use the CPP disability application to impart that Mr. Forget was previously dedicated to his profession/employer and that he had tried to return to work, but that he could no longer contribute to the workplace in a satisfactory manner.

[96] During cross-examination, Dr. Grieve acknowledged that the information received from Mr. Forget regarding his LTD application was not corroborated by the information that Mr. Forget had previously provided to him and was at odds with reports he had received from Mr. Forget’s other treating physicians, including Dr. Mikula. None of Dr. Mikula’s consultation reports between September 2012 and January 2014 reference any alleged “daily chronic pain due to mechanical obstructions”.

[97] Dr. Grieve testified that in March 2016, Mr. Forget’s small bowel obstructions continued to be troublesome, and he would awake in the middle of the night with severe abdominal pain which would exacerbate his Meniere’s by way of stress. Dr. Grieve acknowledged that one of his roles as Mr. Forget’s family physician was to act as his advocate.

[98] During cross-examination, Dr. Grieve acknowledged that his understanding as to Mr. Forget’s physical limitations and clinical conditions in 2014 and 2016 were principally based on what Mr. Forget reported to him directly and not necessarily his own observations. Dr. Grieve acknowledged that the information provided to him by Mr. Forget was, at times, inconsistent with the information he received from Mr. Forget’s other treating physicians.

d) Evidence of Dr. Graham Gibb, Defendant

i. Professional Background

[99] Dr. Graham Gibb is the sole defendant remaining in this action and is the surgeon who performed Mr. Forget’s incisional hernia repair on December 14, 2010, the emergency surgery on December 22, 2010, and provided postoperative wound care.

[100] Dr. Gibb testified that he graduated from the University of Toronto’s Faculty of Medicine in 1993 and completed a general surgery residency in Calgary between 1993 and 1998. In 1998, Dr. Gibb became a Fellow of the Royal College of Physicians and Surgeons of Canada in Canada which allowed him to practice medicine as a specialist. From 1999 to 2000, Dr. Gibb completed a fellowship in colorectal surgery at the University of Texas in Houston.

[101] In 2000, Dr. Gibb began working as a general surgeon at PRHC, where he remained until August 2022.

[102] Dr. Gibb now practices medicine at the Shouldice Clinic in Toronto, where he exclusively performs hernia repairs.

[103] Dr. Gibb testified that between 2000 and 2010, the most common issues that he dealt with at PRHC concerned hernia repairs. He testified that he would have consulted with hernia patients several times per week and would have performed hernia operations several times per month, with the most common repairs being inguinal and incisional hernia repairs.

[104] In 2010, Dr. Gibb was working as a general surgeon at PRHC and divided his time equally between his hospital duties and office hours.

ii. Meeting Mr. Forget and Preliminary Consultation

[105] Dr. Gibb testified that Mr. Forget was referred to him by Dr. Grieve in August 2010 and he agreed that Dr. Grieve would have sent a referral letter, although he did not have the referral letter in his records.

[106] Dr. Gibb met Mr. Forget on October 18, 2010, for a surgical consultation. At trial, Dr. Gibb testified that he had no recollection of the consultation and, for the purpose of his testimony, he primarily relied upon his notes and explained his usual and ordinary practice methods.

[107] Dr. Gibb testified that during a patient consultation, he would usually take notes on a patient’s medical history, perform a physical examination and discuss the known risks and complications of hernia surgery.

[108] Dr. Gibb testified that on October 18, 2010, Mr. Forget’s chief complaint was of a lump in an incision from previous operations for bowel obstructions. Dr. Gibb testified that he made note of the fact that Mr. Forget had underwent prior hernia repair procedures.

[109] Dr. Gibb testified that he formed the impression that Mr. Forget had incisional hernias which were problematic. Dr. Gibb said that he would have told Mr. Forget what the surgical procedure would look like to remove the hernia and that he would have advised Mr. Forget about infection risks, bleeding issues, transfusion, the possibility of the hernia’s recurrence and that the surgery would likely require placing mesh around his abdominal wall. Dr. Gibb told the court that, after he had discussed the surgical procedure and risks, Mr. Forget consented to the surgery and executed a consent form.

[110] Dr. Gibb could not recall whether Mr. Forget had provided him with a written copy of his medical history. However, he testified that, at the date of the first consultation, he was aware that Mr. Forget had undergone multiple prior incisional hernia repairs and had a history of post-surgical adhesions.

[111] Dr. Gibb testified that he would always anticipate the potential development of adhesions between the bowel and the abdominal wall where previous/multiple incisions were needed to repair a hernia, as these adhesions could cause chronic pain.

[112] While not included in his medical notes, Dr. Gibb testified that he would usually discuss the risk of a bowel injury, despite the unlikelihood of such an injury occurring, due to the serious consequences of a bowel injury.

[113] Dr. Gibb testified that an incisional hernia, such as that encountered by Mr. Forget, can occur anytime there is entry into the abdominal cavity. If the abdominal wall does not heal properly, it will result in a hernia.

[114] Dr. Gibb testified that there were different operative techniques, open and laparoscopic, to perform a hernia repair. Open surgery is conducted under the doctor’s direct vision through the incision and laparoscopic surgery is performed using a camera and a screen.

[115] Dr. Gibb testified that he did not perform many laparoscopic repairs and preferred the open repair method. Based on his notes, Dr. Gibb testified that he intended to complete Mr. Forget’s hernia repair using the open method — otherwise his notes would have specifically referenced the use of the laparoscopic method. When questioned about Mr. Forget’s evidence that the procedure was initially to be “laparoscopic”, Dr. Gibb stated that he believes that Mr. Forget was confused as to the approach that was to be taken.

[116] Dr. Gibb estimated that by the time he had met Mr. Forget in October 2010, he had completed over 1,200 hernia surgeries, of which approximately 300 were incisional repairs. He further testified that, prior to undergoing the operation, Mr. Forget would have been required to undergo blood work and an electrocardiogram (“ECG”), for preoperative screening, all of which was completed.

iii. The December 14, 2010 Surgery

[117] Dr. Gibb testified that Mr. Forget would have been seen by the nurses and processed prior to the surgery on December 14, 2010.

[118] Dr. Gibb testified that it is his usual practice to see his patient immediately prior to surgery to address any concerns that they may have. Dr. Gibb had no recollection of his conversation with Mr. Forget, nor did he recall the specifics of the procedure undertaken. Dr. Gibb relied on his surgical notes, the nursing notes, and his usual practice, to provide his testimony regarding the surgery on December 14, 2010.

[119] Dr. Gibb testified that the nursing notes recorded that the surgery commenced at 12:18 p.m. and was completed at 12:57 p.m., which Dr. Gibb stated was “quite typical” for a hernia operation of this type. Dr. Gibb testified that he performed the surgery using his typical surgical techniques and would have watched where he was cutting at all times. Dr. Gibb testified that it is likely that he encountered loose adhesions (bands of scar tissue) and that he would have dissected the adhesions above and below the abdominal wall before inserting the mesh lining.

[120] Dr. Gibb testified that his usual practice during an incisional hernia repair was to inspect the area and ensure that there was no bleeding or evidence of a bowel injury before completing the surgery.

[121] Dr. Gibb testified that, based on his operative note, the operation appeared to have been “straightforward”.

[122] Dr. Gibb told the court that when Mr. Forget’s hernia repair was completed, prior to closing the wound, he would have placed a sponge inside the incision to see if there was bleeding. If blood was detected, he would have opened the abdomen to identify the source and complete any necessary repairs before concluding the surgery.

[123] Based on his review of the surgical notes, Dr. Gibb believed that he thought the surgery was “routine” and went well.

[124] When questioned whether he “ran the bowel”, Dr. Gibb testified that he gave “no consideration” to running the bowel and that such a technique is not necessary, nor was it part of his practice or training. “Running the bowel” is a technique used to inspect the bowel for injuries. Running the bowel will be discussed further below in relation to the expert evidence provided at trial.

[125] When questioned whether he ordered Mr. Forget to complete pre-operation “bowel preparation”, Dr. Gibb testified that he does not order bowel preparation for incisional hernia repairs and did not order bowel preparation in this case.

[126] Dr. Gibb testified that, following the surgery, Mr. Forget was taken to the recovery room. A short time later, Dr. Gibb was called to observe Mr. Forget as the nurses were fearful that Mr. Forget had experienced a seizure. Dr. Gibb testified that he decided to admit Mr. Forget overnight for observation.

[127] Dr. Gibb testified that the following morning, on December 15, 2010, Mr. Forget’s vitals were stable and that he was tolerating liquids. Consequently, Mr. Forget was discharged home.

[128] Dr. Gibb testified that he had no concern about discharging Mr. Forget home. Mr. Forget was advised to look for redness and/or a fever and was to otherwise re-attend at PRHC for a follow-up appointment with Dr. Gibb in five to six weeks.

iv. The December 22, 2010 Surgery

[129] On December 22, 2010, Dr. Gibb was advised that Mr. Forget had returned to the hospital. Dr. Gibb testified that he was surprised to see Mr. Forget as he thought the previous operation on December 14, 2010, had been “unremarkable”.

[130] Dr. Gibb explained that the emergency room record noted there was “small bowel content coming from incision” with Mr. Forget’s symptoms having started the day prior.

[131] Dr. Gibb testified that, after he had attended PRHC and assessed Mr. Forget, he believed that Mr. Forget had symptoms that were consistent with a small bowel leak. Dr. Gibb advised Mr. Forget that he needed surgery immediately to address the issue.

[132] After his discussion with Mr. Forget, Dr. Gibb explained that Mr. Forget signed a consent for the emergency “laparotomy repair” surgery. Mr. Forget was then admitted to PRHC and proceeded to the operation room for surgery.

[133] To repair Mr. Forget’s bowel injury, Dr. Gibb had to re-open the incision site from December 14, 2010. When doing so, Dr. Gibb made the initial incision larger for better access to Mr. Forget’s bowels. Dr. Gibb then removed the mesh that had been previously inserted on December 14, 2010, because it was contaminated. Dr. Gibb then repaired the injury to Mr. Forget’s bowel and closed the wound.

[134] Dr. Gibb testified that his operative note from December 22, 2010, indicate that he assessed that the “enteric” (bowel contents) had not spread through the abdominal cavity. Dr. Gibb noted that the hole in Mr. Forget’s bowel was a “pinhole” in the skin to the left side of the wound.

[135] Dr. Gibb explained that the “pinhole” was surrounded by tissue that was healthy and had a good blood supply. As a result, and because of the small size of the hole, Dr. Gibb determined that a “primary repair” would be the best way to close the hole in Mr. Forget’s bowel. According to Dr. Gibb, “primary repairs” use interrupted sutures to close a wound.

[136] Dr. Gibb testified that he sutured and closed the hole and completed a second layer for muscle/reinforcement repair. Dr. Gibb then cleaned the area to deal with any contaminated fluid and looked for other leakage using sponges and visual observation.

[137] Dr. Gibb testified that the affected area of the bowel would have been relatively small. He testified that he did not “run the bowel”.

[138] It was explained at trial that “running the bowel” is a surgical technique which requires the surgeon to physically inspect the entire length of the bowel after a surgical procedure.

[139] Dr. Gibb testified that he did not “run the bowel” following Mr. Forget’s surgeries in December 2010 as he believed it to be unnecessary and would have required a much bigger incision. A larger incision would have increased the risk of further bowel injury and the development of other incisional hernias.

[140] Dr. Gibb testified that he completed a “careful inspection of the bowel” and once he was satisfied there was no further leakage, he closed, irrigated and packed the wound and then transferred Mr. Forget to the recovery room.

[141] When asked why he did not close the hole using a procedure known as “side-to-side anastomosis”, Dr. Gibb testified that he was familiar with the technique and had utilized it for the repair of larger holes where there was necrotic tissue surrounding the injury. However, Dr. Gibb did not utilize “side-to-side anastomosis” in this case as it was not necessary due to the healthy tissue surrounding the pinhole injury in Mr. Forget’s bowel. As a result, Dr. Gibb conducted a “primary repair” of the injury using interrupted sutures.

[142] Dr. Gibb testified that he would have spoken to Mr. Forget in the recovery room and would have disclosed to him that he believed there was “some form of injury to the bowel”.

[143] Dr. Gibb testified that he thought Mr. Forget had a “partial injury” that occurred during the December 14, 2010 surgery, which had developed into a “through and through injury” that required repair.

[144] Dr. Gibb testified that, following the December 22, 2010 emergency surgery, it was discovered that Mr. Forget’s bowel had continued to leak and that he had developed an enterocutaneous fistula. Dr. Gibb explained that a “fistula” is an “abnormal communication between the bowel and the skin”.

[145] Dr. Gibb testified that the fistula was treated conservatively and Mr. Forget did not require further surgery. Dr. Gibb testified that any further operation at that time would have increased Mr. Forget’s risk of bowel injury and was unnecessary given the circumstances.

[146] Dr. Gibb testified that Mr. Forget remained at PRHC after the December 22, 2010 surgery for three weeks.

[147] On December 28, 2010, Dr. Gibb called a specialist in hernia repair at St. Michael’s Hospital in Toronto, Dr. Mustard, and consulted him about how to best manage Mr. Forget’s fistula. After his call with Dr. Mustard, and in accordance with Dr. Mustard’s advice, Dr. Gibb decided to treat Mr. Forget’s fistula conservatively. Over the course of Mr. Forget’s three weeks at PRHC, the fistula closed on its own and had mostly healed. Mr. Forget was discharged home on January 14, 2011 and, at that time, he was eating without issue and his fistula output was minimal.

[148] Dr. Gibb testified that Mr. Forget’s discharge summary provided a diagnosis of a “perforated small bowel” injury with a follow-up appointment in two weeks with Dr. Gibb. Dr. Gibb was to follow along with Mr. Forget until his fistula was completely healed.

v. Interactions between Dr. Gibb and Mr. Forget After the December 22, 2010 Surgery

[149] Dr. Gibb saw Mr. Forget for a follow-up appointment on January 27, 2011. On this date, the fistula had closed with no recent drainage. Unfortunately, Mr. Forget had developed hemorrhoids, which Dr. Gibb later treated through non-surgical rubber band ligation on January 31, 2011 and March 7, 2011.

[150] Dr. Gibb testified on March 7, 2011, he noted Mr. Forget’s incisional wound had some discharge and there was granulation tissue at its opening. Dr. Gibb treated the wound and arranged for a CT scan of Mr. Forget’s abdomen to reassess the status of the fistula.

[151] On March 9, 2011, Mr. Forget underwent a CT scan which indicated that the fistula had healed.

[152] On March 28, 2011, Mr. Forget re-attended before Dr. Gibb with complaints of redness around the incision site. Dr. Gibb treated Mr. Forget with oral antibiotics, and advised Mr. Forget that the CT scan had confirmed that the fistula had healed.

[153] On April 14, 2011, Mr. Forget attended for further hemorrhoid treatment via rubber band ligation. Dr. Gibb noted that Mr. Forget’s incisional wound was “nearly healed”. Mr. Forget was to see Dr. Gibb for another follow-up appointment in September 2011.

[154] On May 2, 2011, Mr. Forget met with Dr. Gibb to discuss his complaints that the incision site had recently become swollen with some fluid discharge. Dr. Gibb applied silver nitrate and probed the wound. A follow-up appointment was arranged for June 2011.

[155] On June 2, 2011, Mr. Forget attended before Dr. Gibb with complaints that the healing had stalled without further discharge. Anther follow-up appointment was scheduled for three weeks later.

[156] On June 27, 2011, Mr. Forget met with Dr. Gibb. On that date, the wound bled easily and had purulent discharge, but the discharge did not contain enteric contents. Dr. Gibb once again treated the wound with silver nitrate and suggested debridement in August.

[157] On August 4, 2011, Dr. Gibb performed debridement of the incisional wound and located old sutures in Mr. Forget’s abdomen that pre-dated the surgeries from December 2010. Dr. Gibb thought that these sutures were the source of Mr. Forget’s ongoing wound issues. Dr. Gibb removed the old sutures, cleaned and closed the wound.

[158] On August 7, 2011, Mr. Forget attended the hospital as his incisional wound had become infected. Dr. Rowsom completed debridement surgery.

[159] On August 9, 2011, Mr. Forget returned to the hospital with “significant cellulitis” and Dr. Gibb performed further debridement surgery.

[160] On August 27, 2011, Mr. Forget returned to the hospital and was seen by Dr. Petrasek who re-opened the incision, located a subcutaneous abdominal abscess, which was then irrigated, drained and packed.

[161] On August 29, September 7 and September 21, 2011, Dr. Gibb re-inspected Mr. Forget’s wound and noted that it was healing.

[162] On October 12, 2011, Dr. Gibb assessed Mr. Forget as “doing well overall” and referred him to a specialist in complex hernia repair, Dr. Okrainec.

[163] On November 2, 2011, Mr. Forget met with Dr. Gibb who noted that an old “suture” was protruding from the lower end of Mr. Forget’s incisional scar. Dr. Gibb removed the suture.

[164] On November 28, 2011, Mr. Forget met with Dr. Gibb to discuss issues relating to his hemorrhoids. Dr. Gibb noted that Mr. Forget had “another suture end poking into skin at [the] lower end” of his incisional scar and advised that he would “excise” the suture under local anesthesia when the rubber band ligation had been completed.

[165] On December 14, 2011, Mr. Forget attended before Dr. Gibb who completed the rubber band ligation and removed the remaining suture.

[166] On January 25, 2012, Mr. Forget met with Dr. Gibb for another follow-up appointment and Mr. Forget advised that he had not yet heard from Dr. Okrainec’s office.

[167] Dr. Gibb testified that the purpose of his referral of Mr. Forget to Dr. Okrainec’s office was to repair the reoccurrence of his incisional hernia caused by Mr. Forget’s many surgeries and the ongoing infection. Dr. Gibb testified that any further surgeries on Mr. Forget’s abdomen were “getting beyond my ability”.

[168] Dr. Gibb testified that Dr. Okrainec met with Mr. Forget on February 14, 2012. Dr. Okrainec thereafter reported to Dr. Gibb that Mr. Forget required a “component separation technique” repair to give him the best abdominal wall function and, as such, Dr. Okrainec planned to consult Dr. Brenneman at Sunnybrook Health Sciences Centre. Dr. Okrainec told Dr. Gibb that he would keep him updated on Mr. Forget’s situation.

[169] On April 5, 2012, Mr. Forget met with Dr. Gibb to discuss his complaints that the wound was re-infected. Dr. Gibb treated the infection and opined that it was likely caused by retained sutures from one of Mr. Forget’s pre-2010 hernia repairs.

[170] On May 2, 2012, Mr. Forget attended before Dr. Gibb for another follow-up appointment regarding the incisional wound. This was Mr. Forget’s last attendance before Dr. Gibb. On this date, Mr. Forget’s wound was healed and did not require any further intervention. Mr. Forget was doing well and was awaiting a referral with Dr. Brenneman regarding his abdominal wall reconstruction surgery.

[171] Dr. Gibb testified that Mr. Forget ultimately had the abdominal wall reconstruction surgery, which he understood to have gone successfully.

vi. Dr. Gibb’s Evidence on Cross- and Re- Examination

[172] During cross-examination, Dr. Gibb testified as follows:

a. He was aware that Mr. Forget had undergone prior incisional hernia repairs and knew that he would have abdominal adhesions.

b. He considered Mr. Forget’s December 10, 2010 surgery to be a routine surgery, but he would always anticipate a “stuck bowel and adhesions”.

c. His consultation notes record the potential for risk of infection and bleeding, but do not contain any reference to the potential of a bowel injury. However, Dr. Gibb testified that he did discuss the risk of bowel injury with Mr. Forget as bowel injury carries serious consequences of sepsis and/or death.

d. The surgery on December 14, 2010, was performed in the afternoon. Dr. Gibb could not recall any conversation with Mr. Forget prior to surgery, but he testified that he would have had a conversation and does not recall advising Mr. Forget that they needed to switch from laparoscopic to open surgery due to the set up of the operating room. Dr. Gibb does not believe the surgery was to be laparoscopic as it would have been detailed differently in his notes and the surgical appointment booking.

e. Dr. Gibb testified that his surgical notes do not record how many adhesions were encountered because “you don’t count adhesions”.

f. Dr. Gibb believes that the “pinhole” injury to Mr. Forget’s bowel most likely occurred during the December 14, 2010 surgery when adhesions were removed between Mr. Forget’s bowel and his abdominal wall.

g. Dr. Gibb would have checked for injuries by making a visual inspection of the bowel and through the use of sponges — in a “through and through” injury where the bowel is completely perforated, the bowel “puffs up” which it did not do — nor was there any bleeding observed. While Dr. Gibb’s surgical notes do not state that he inspected the bowel to ensure there was no injury — this process is a part of his usual practice and he would have inspected the bowel and the surgical site prior to closing Mr. Forget’s wound.

h. Dr. Gibb’s theory is that Mr. Forget suffered a “delayed bowel injury” as a result of a partial tear/cut in the bowel that did not present itself during the December 14, 2010 surgery. Dr. Gibb did not note that there was a “delayed bowel injury” in his surgical notes on December 22, 2010, because it was “irrelevant”. From Dr. Gibb’s perspective, Mr. Forget had a bowel injury on December 22, 2010, that required emergency surgery.

i. Dr. Gibb has no specific memory of the December 22, 2010 surgery and relied upon his notes, usual practice, and has a “vague” recollection of the events.

j. Dr. Gibb believes the hole in Mr. Forget’s bowel was a small hole because he completed the repair without resection and he would not have chosen the “primary repair” method if the hole was larger or greater than two centimetres.

k. Dr. Gibb’s evidence regarding the health of the skin surrounding the repair was based on the fact that he completed a “primary repair” and the type of stitching chosen.

l. Dr. Gibb sutured the wound using two layers of tissue, but he has no recollection of how many stitches he used for the first and/or second layer of tissue.

m. Dr. Gibb believes that the December 22, 2010, repair failed. He does not believe that he performed the stitching wrong. Rather, he believes it more likely that the tissue itself failed. The tissue initially held because, if it had torn initially, he would have changed his method of repairing the hole.

n. Dr. Gibb is familiar with “side-to-side anastomosis” and was very familiar with performing incisional hernia repair surgeries in 2010 because it was a common elective/general procedure that he was performing regularly.

o. Dr. Gibb testified that the risk of failure for the “primary repair” was equivalent to the risk of failure for side-to-side anastomosis. However, Dr. Gibb would have used side-to-side anastomosis if the bowel was de-vascularized or the hole was larger.

p. Following Mr. Forget’s second surgery on December 22, 2010 and on December 24, 2010, it was noted that enteric contents were leaking from the midline of Mr. Forget’s wound. Dr. Gibb opined that either the repair site leaked or another site had leaked. He agreed that you could assume that there were more adhesions present and that adhesions make it more difficult to see the bowel.

q. The goal of the surgery on December 14, 2010, was to repair the incisional hernia and a mesh lining was used to create a solid support for Mr. Forget’s abdominal wall. When the mesh was removed, Mr. Forget was at risk for another hernia. Dr. Gibb agreed that it would appear reasonable to assume that the goal of the first surgery on December 14, 2010, was not met.

[173] During re-examination, Dr. Gibb testified that his notes on the surgery from December 22, 2010 were more detailed because, when performing a corrective surgery, he makes better notes than when he is performing a surgery for the first time.

[174] When Dr. Gibb agreed that the second surgery “repair” failed, he meant that, ultimately, the bowel contents were leaking from the bowel and came out the abdominal wall through a fistula. The fistula resolved without further surgical intervention.

II. Evidence of the Expert Witnesses

a) The Plaintiffs’ Expert Witness, Dr. Bahrami Shahi

[175] Dr. Shahi is a general surgeon and staff general surgeon at Grand Genesis Health in Toronto. Dr. Shahi also has surgical privileges at Stevenson Memorial Hospital in Alliston, Ontario. He was qualified to provide expert evidence on standard of care and causation.

[176] Dr. Shahi attended medical school at the University of Iran’s Faculty of Medicine. Dr. Shahi immigrated to Canada in 1988 as a refugee claimant and worked as a research associate until 1991 when he became a Canadian resident.

[177] Dr. Shahi completed a 9-month pre-internship course, now called the International Medical Graduate program, which is designed to prepare people who are medically qualified in foreign countries to enter the medical system in Canada. Following his completion of the program, Dr. Shahi was admitted to the General Surgery Program at Western University.

[178] Dr. Shahi completed a 5-year general surgery residency course at Western University from 1993–1998.

[179] In 1998, Dr. Shahi became a fellow of the Royal College of Physicians and Surgeons of Canada. Dr. Shahi now holds academic positions at three medical schools. Dr. Shahi is an assistant professor at the Northern Ontario School of Medicine, an assistant professor in clinical sciences at Memorial University in Newfoundland, and an assistant professor in clinical sciences and surgery at Dalhousie University.

[180] Following his graduation from Western University’s general surgery residency program in 1998, Dr. Shahi became a “rural academic surgeon” in the Thunder Bay region for approximately five years. Dr. Shahi testified that in this job he performed a range of procedures concerning general surgery, cancer surgery, hernia surgery, as well as laparoscopic and endoscopic procedures.

[181] After Thunder Bay, Dr. Shahi worked for two years in New Glasglow at Aberdeen Hospital in Nova Scotia before returning to Ontario to work at Fort Frances and Toronto.

[182] Dr. Shahi reviewed Mr. Forget’s medical history and noted that Mr. Forget had “quite a few” surgical operations prior to 2010 as follows: hernia (1992); small bowel obstruction (1997); incisional hernia (1999); and incisional hernia (2000). Dr. Shahi also noted that Mr. Forget had illnesses/medical concerns unrelated to his surgeries, namely, a diagnosis of Meniere’s disease and of a deep vein thrombosis (2008).

[183] Dr. Shahi testified that the fact that Mr. Forget had multiple hernia repairs and obstructions, with and/or without mesh, was an important factor to consider as a surgeon as it told him that Mr. Forget’s abdomen was akin to a “battlefield” with lots of adhesions.

[184] Dr. Shahi explained that a hernia is a defect in the abdominal wall which is comprised of ten layers. Dr. Shahi testified that the only abdominal wall layer of importance to a hernia is the fascia, or the covering of the muscle, and when the fascia is repaired, the hernia is repaired, provided that it is covered with mesh.

i. The December 14, 2010 Surgery

[185] Dr. Shahi reviewed the sequence of events that lead to Dr. Grieve referring Mr. Forget to Dr. Gibb.

[186] Dr. Shahi provided testimony based on his review of Mr. Forget’s medical record. His testimony was rooted in the finding that Mr. Forget’s initial surgery with Dr. Gibb on December 14, 2010, was intended to proceed by way of laparoscopy, but that the equipment was not ready on the day of surgery and, as a result, the surgery proceeded as an open surgery.[^1] Dr. Shahi was concerned that Mr. Forget did not receive an adequate explanation as to why the procedure was to convert to an open surgery procedure.

[187] Dr. Shahi opined that during the December 14, 2010, surgery, Dr. Gibb tried to pull away loops of bowel and adhesions from the field of bowel where he had entered Mr. Forget’s abdomen. Dr. Shahi explained that Dr. Gibb did not make an operative note regarding the method by which he was removing the adhesions. Dr. Shahi advised the court that Dr. Gibb should have noted in his surgical notes whether he was removing Mr. Forget’s bowel adhesions by blunt dissection or sharp dissection.

[188] Dr. Shahi testified that a surgeon would usually use blunt dissection with fingers and/or sharp dissection using a tool to remove adhesions. Dr. Shahi noted that sharp dissection should only be used if the surgeon has a direct view of the adhesions, otherwise there is a risk of cutting the bowel instead of the adhesion.

[189] Dr. Shahi noted that Dr. Gibb placed a mesh over the problematic area in Mr. Forget’s bowel and then stitched it to the fascial edges with monofilament, nonabsorbable suture material.

[190] Dr. Shahi opined that, to meet the standard of care, Dr. Gibb should have explained in his operative note whether the stitching was running or interrupted. Dr. Shahi advised that Dr. Gibb should have made note “care” was exercised not to “get into” the loops of the bowels.

[191] Dr. Shahi testified that there are a series of rules that apply to general surgery, including good exposure of the surgical field and the gentle handling of tissue. Dr. Shahi opined that 95% of surgical problems occur due to a violation of these two rules.

[192] Dr. Shahi explained that Dr. Gibb should have made the incision larger so that there was “good exposure to the field” and that Dr. Gibb should have “run or release[d] the bowel” to minimize the chance of further adhesions. To this end, Dr. Shahi explained that to “run the bowel”, a longer incision would have been necessary and the time frame in which the operation took place should have been increased. Of note, “running the bowel” is a surgical procedure in which the patient’s bowels are removed to allow for the surgeon to systematically check each part of the bowel for injuries or adhesions.

[193] Dr. Shahi opined that Dr. Gibb breached the standard of care expected of a normal, prudent general surgeon of the same experience and standing during the December 14, 2010 surgery, for the following reasons:

a. There was a lack of an explanation to Mr. Forget regarding the surgery and the complications that could arise.

b. Laparoscopic surgery should never have been considered given Mr. Forget’s medical/surgical history.

c. Dr. Gibb’s operative note should have clarified how many adhesions were dissected, the method employed to remove the adhesions, and whether any injury was noticed during the dissection process.

d. Dr. Gibb’s operative note should have explained whether the stitching was “running or interrupted” and should have noted that “care was exercised” not to “get into” the loops of bowel.

e. Dr. Gibb should have ordered Mr. Forget to complete “bowel preparation” prior to the surgery to “flush” out bowel contents and bacteria in the case of a perforation.

f. Dr. Gibb should have “run the bowel” during the surgery. He should have made a larger incision and should have released “many more adhesions” during the surgery.

ii. The December 22, 2010 Surgery

[194] Dr. Shahi explained that the preoperative and postoperative diagnosis for the December 22, 2010 emergency surgery was the expected presence of a hole/perforation of the small bowel or infected mesh/possible small bowel perforation.

[195] Dr. Shahi advised that there was purulent fluid deep in the mesh that was inserted into Mr. Forget’s bowel by Dr. Gibb on December 14, 2010. This meant that the mesh was infected. During the surgery on December 22, 2010, Dr. Gibb extracted the mesh and irrigated and suctioned the surgical site.

[196] Dr. Shahi testified that Dr. Gibb closed the two edges of the bowel perforation with sutures using what is known as the “primary repair” method. Dr. Shahi testified that there was no indication recorded in Dr. Gibb’s notes from the surgery regarding the size of the hole that was repaired.[^2]

[197] Dr. Shahi testified that Dr. Gibb closed the two edges of the bowel perforation with primary repair sutures. Dr. Shahi acknowledged that the surgeon is the individual best placed to determine the method or repair technique; however, Dr. Shahi testified that, in the present case, it was apparent that Dr. Gibb erred in exercising his discretion as either the repair failed or there was another bowel perforation that was missed.

[198] Dr. Shahi opined that Dr. Gibb breached the standard of care of expected of a normal, prudent general surgeon of the same experience and standing, during the December 22, 2010 surgery, for the following reasons:

a. There was an error in the method of closure. Side-to-side anastomosis should have been used instead of the primary repair method to close the bowel perforation due to the corrosive bowel juices which had been present in and around the bowel tissue for approximately seven days. Instead of using primary sutures, Dr. Gibb should have resected the diseased portion of bowel by connecting two suture loops together using side-to-side anastomosis. Dr. Shahi opined that side-to-side anastomosis was the required standard of care for enterotomy given the hostile environment that was encountered and was seven days post-surgery. In reaching this conclusion, Dr. Shahi proceeded on the basis that there was no evidence regarding the size of the hole in Mr. Forget’s bowel and pointedly ignored the discovery evidence of Dr. Gibb.

b. Dr. Gibb should have made a larger incision and should have “run the bowel” to release “many more adhesions” during the surgery. Dr. Shahi opined that, given Mr. Forget’s hostile abdomen environment, the standard of care required Dr. Gibb to “run the bowel”. Dr. Shahi opined that, although this may lead to more perforations, the surgeon would be able to repair them during the operation.

iii. Postoperative Care

[199] Dr. Shahi opined that Dr. Gibb’s telephone consult with Dr. Mustard on December 28, 2010, was “not enough” to meet the standard of care in serving as Mr. Forget’s surgeon. Further, Dr. Shahi explained that he thought that Dr. Gibb’s November 2011 referral letter to Dr. Okrainec was “too slow” and breached the standard of care.

iv. Dr. Shahi’s Evidence on Cross-Examination

[200] The cross-examination of Dr. Shahi elicited the following:

a. Dr. Shahi’s practice is restricted to rural hospitals which are also teaching centres affiliated with various universities.

b. Dr. Shahi has not conducted any research, nor has he published any peer reviewed articles about hernias.

c. Dr. Shahi’s expert reports do not set forth his qualifications, nor do they list the documents that he relied upon or referred to in forming his expert opinion.

d. Dr. Shahi’s opinion should be rooted in the medical standards from 2010, but he agreed that the vast majority of the articles that he relied upon when developing his expert opinion were published after 2010.

e. Dr. Shahi agreed that, just because two people have differing opinions, it does not mean that one opinion is wrong.

f. Dr. Shahi did not know the size of the hole or perforation encountered by Dr. Gibb during the surgery on December 22, 2010. However, Dr. Shahi stated that he did not need to know the size of the hole in Mr. Forget’s bowel to form his expert opinion. He acknowledged that, the bigger the perforation, the more inappropriate a “primary repair” method would be.

g. Dr. Shahi agreed that bowel injuries can happen during surgery, and the presence of a bowel injury does not mean that the surgeon breached the standard of care. He agreed that the rate of bowel injuries during incisional hernia repairs is about 1 to 6 percent.

h. Dr. Shahi agreed that bowel preparation is not mandated for hernia repair surgery, and the regulating bodies do not say that it must be done. Nevertheless, Dr. Shahi insisted that requiring bowel preparation in the present case would have been necessary to satisfy the standard of care.

i. Dr. Shahi relied on the “Guideline for Laparoscopic Ventral Hernia Repair” to form his opinion that bowel preparation before incisional hernia repairs like in Mr. Forget’s case was required to meet the standard of care. However, Dr. Shahi acknowledged that the Guideline was published in 2016, not in 2010. He further agreed that the Guideline reports “low quality evidence” to support the use of bowel preparation and further agreed that the Guideline further stated that “additional evidence is necessary before recommendation is provided”.

j. Dr. Shahi was referred to an article referencing bowel preparation, which was introduced at trial as Exhibit 12 (Preoperative Bowel Preparation). Dr. Shahi relied on this article in forming his opinion. Dr. Shahi agreed that the article concluded that bowel preparation does not reduce surgical site infections and that a further article, introduced as Exhibit 13, notes that a patient “might” undergo bowel prep prior to surgery.

k. Dr. Shahi agreed that Dr. Mikula did not order Mr. Forget to conduct bowel preparation prior to his abdominal wall reconstruction surgery in September 2012. However, Dr. Shahi noted that Dr. Mikula did “run the bowel” during the abdominal wall reconstruction surgery.

l. Dr. Shahi testified that the “standard of care was breached because the bowel was nicked”.

m. Dr. Shahi opined that Dr. Gibb should have cut Mr. Forget from the “breastbone to the pubis” to “adequately and meaningfully take down the adhesions”.

n. Dr. Shahi agreed that “running the bowel” increases incision length, increases the risk of further perforations, increases the risk of incisional hernias, and lengthens the duration of the surgery, but insisted that Dr. Gibb had an obligation to “run the bowel because of the risk of adhesions”.

o. Dr. Shahi agreed that if Mr. Forget had no symptoms for approximately seven days following the December 14, 2010, surgery that this was indicative of the fact that Mr. Forget did not suffer a full perforation or full-thickness injury.

p. With respect to the December 22, 2010 surgery, Dr. Shahi again criticized Dr. Gibb for failing to “run the bowel” at the conclusion of the surgery. Dr. Shahi opined that the development of the fistula following the surgery meant that there was a leakage from the small bowel which was “most likely” from the repair that was completed by Dr. Gibb. However, he refused to rule out the existence of other bowel injuries because Dr. Gibb did not “run the bowel” and so other pre-existing injuries could not be ruled out.

q. Dr. Shahi opined that “inadequate repair of the first bowel injury led to further discharge of bowel contents”.

r. Dr. Shahi agreed that primary repair is one method utilized by surgeons to repair bowel perforations; however, he explained that the choice of repair requires consideration of the size of the defect and the condition of the tissue. In Mr. Forget’s case, Dr. Shahi did not know the size of the defect, nor the condition of the tissue, but he assumed that the tissue was in bad condition as it “had been soaking in bile for 7 days”. He further stated that, if it was not concluded by the court that the tissue had been soaking in bile for 7 days, this finding of fact would not change his opinion.

s. Dr. Shahi agreed that the type or method of repair utilized is a discretionary decision to be made by the surgeon as they are the only person in a position to assess the situation. In Mr. Forget’s case, Dr. Shahi opined that while it was within Dr. Gibb’s discretion to determine the method of repair, Dr. Gibb erred in his choice and proof of the error was the fact that the repair leaked, which suggested that Dr. Gibb’s choice of repair method was the incorrect one.

t. With respect to Dr. Gibb’s management of Mr. Forget after the December 22, 2010 surgery, Dr. Shahi opined that Dr. Gibb should have consulted with a colleague or someone more knowledgeable. Dr. Shahi opined that Dr. Gibb’s telephone consultation with Dr. Mustard at St. Michael’s Hospital on December 28, 2010, “wasn’t good enough” because “the bowel wasn’t run and the adhesions weren’t taken down”.

u. With respect to Dr. Shahi’s opinion that Mr. Forget’s pain and related weight loss was caused by his bowel adhesions, which then contributed to his gallbladder issues, Dr. Shahi clarified that rapid weight loss could lead to gallbladder sludge.

v. Dr. Shahi reviewed the medical documents and records prepared by Dr. Gibb. He made his opinions based on the facts which are found in the medical records, not on the information contained or provided by Dr. Gibb on discovery. Dr. Shahi testified that what was said by Dr. Gibb in discovery is irrelevant. Dr. Shahi explained that he goes by the operative note. For example, the size of Mr. Forget’s bowel perforation, the type of dissection, the type of mesh used, and the placement of the mesh were details provided by Dr. Gibb during discovery, but not included in his operative note. Ultimately, Dr. Shahi believed that Dr. Gibb’s discovery evidence was unnecessary in forming his expert opinion on whether Dr. Gibb met the standard of care during Mr. Forget’s December 2010 surgeries.

b) The Defendant’s Expert, Dr. Lloyd Smith

[201] Dr. Smith is a general surgeon and Surgeon-in-Chief of North York General Hospital. He was qualified to provide evidence on standard of care and causation.

[202] Dr. Smith is the former Director of Medical Education at St. Joseph’s Health Centre, the former Director of the Minimally Invasive Surgery Department at University Health Network, the former Division Head of General Surgery at Toronto Western Hospital, the former Surgeon-in-Chief at St. Joseph’s Health Centre, and the present Surgeon-in-Chief at North York General Hospital.

[203] Dr. Smith has over 30 years of experience. He currently serves as a member of the Senior Advisory Committee of the University of Toronto’s Faculty of Medicine and as an Assistant Professor. Dr. Smith specializes in laparoscopic and open hernia repair surgeries and has written and presented extensively on this topic.

[204] Dr. Smith testified that, over the course of his career and since 2016, he has focused his surgical specialization entirely on hernia repair.

[205] Dr. Smith testified that the care Dr. Gibb provided to Mr. Forget met the standard of care in all respects. His evidence was supported by his own personal experience and the evidentiary record, including the transcripts from the examinations for discovery.

[206] Dr. Smith testified that Dr. Gibb conducted a proper review of Mr. Forget’s medical history and performed a thorough physical examination during his first consultation with Mr. Forget in October 2010. Dr. Gibb explained the procedure and associated risks to Mr. Forget and specifically referenced the risks of bleeding, infection (including bowel injury) and reoccurrence. Dr. Smith testified that Dr. Gibb completed these tasks in the exact manner of what is expected of a physician.

i. The December 14, 2010 Surgery

[207] With respect to the procedure undertaken on December 14, 2010, being the open repair of Mr. Forget’s small ventral hernia with mesh, Dr. Smith testified that he reviewed the operative records and the transcripts from discovery to form his opinion.

[208] Dr. Smith noted that the ventral hernia was estimated to be 2–3 cm and that Dr. Gibb made a standard incision in order to excise the hernia sac. Dr. Gibb cleared any adhesions under the abdominal wall to allow the placement of a 6cm coated path/mesh to the abdominal wall. Dr. Smith testified that Dr. Gibb cleared the adhesions and affixed the mesh with sutures to the fascia of the abdominal wall and followed standard surgical procedures.

[209] Based on his review of the operative records and the discovery evidence, Dr. Smith testified that Dr. Gibb met the standard of care for what was expected for Mr. Forget’s incisional hernia repair surgery on December 14, 2010.

ii. The December 22, 2010 Surgery

[210] Dr. Smith testified that, following Mr. Forget’s December 14, 2010 surgery, it appeared that he was recovering well at home; however, he became ill approximately 48 hours before returning to PHRC on December 21, 2010.

[211] Dr. Smith opined that Dr. Gibb saw Mr. Forget in the emergency department, assessed Mr. Forget’s status appropriately and properly advised Mr. Forget that he required further surgery without delay.

[212] Dr. Smith testified that Mr. Forget’s illness was related to the initial surgery as bowel leaks “don’t happen spontaneously”. Dr. Smith testified that bowel injuries “do happen virtually to every surgeon and are within the standard of care”.

[213] Dr. Smith explained that bowel injuries can occur with any intra-abdominal procedure and are more frequent with surgeries that are undertaken to repair an earlier surgical issue. It can sometimes be very difficult to identify an injury when working through a small incision. Small bowel injuries are a recognized complication of hernia surgery, which in Dr. Smith’s view, this risk was appropriately managed by Dr. Gibb in Mr. Forget’s case.

[214] Dr. Smith testified that Dr. Gibb recognized the urgency of Mr. Forget’s situation and dealt with the “bowel leak” on an emergent basis. Dr. Smith explained that Dr. Gibb’s decision was the appropriate response, given the circumstances.

[215] Dr. Smith testified that Dr. Gibb opened the initial incision, drained, washed, and cut the sutures, removed the mesh and inspected the bowel area. Dr. Smith noted that Dr. Gibb extended the incision to allow for better visualization and identified a small injury to the bowel. Dr. Smith testified that Dr. Gibb’s approach and method was appropriate and met the standard of care.

[216] Dr. Smith testified that once Dr. Gibb had identified the bowel injury, he completed a primary repair. Given his understanding of all of the evidence, Dr. Smith opined that a primary repair of Mr. Forget’s bowel perforation was within the standard of care for the procedure.

[217] Dr. Smith opined that all of Dr. Gibb’s actions relating to the December 14, 2010 and the December 22, 2010 surgeries, were within the standard of care.

iii. Postoperative Care

[218] Dr. Smith noted that Mr. Forget’s bowel began to leak again within two to three days after the December 22, 2010 surgery. This meant that the primary repair must have failed. Dr. Smith testified “this happens, repairs fail in contaminated fields”. Dr. Smith noted that Mr. Forget was on antibiotics and total parenteral nutrition for nutritional support and that Dr. Gibb made the decision to treat Mr. Forget conservatively. Dr. Gibb also contacted Dr. Mustard at St. Michael’s Hospital to discuss Mr. Forget’s case. Dr. Smith testified that he knows Dr. Mustard personally, although he is now retired, and was a doctor who specialized in “disaster cases”. Dr. Smith testified that Dr. Gibb appropriately sought the advice of a colleague like Dr. Mustard and appropriately managed the fistula that had developed in Mr. Forget’s bowel. Dr. Smith testified that fistulas are considered an issue that any surgeon can manage.

[219] Dr. Smith testified that, in his opinion, Dr. Gibb’s postoperative care of Mr. Forget was appropriately managed with drainage, antibiotics, and nutritional supplements. Dr. Smith noted that the fistula closed spontaneously, which was confirmed by a CT scan in March 2011.

[220] Dr. Smith opined that Dr. Gibb’s treatment of Mr. Forget, including when Mr. Forget attended at PRHC’s emergency room on December 21, 2010, his emergency repair surgery on December 22, 2010, and his postoperative care while at PRHC prior to his discharge on January 11, 2011, was of a quality that “absolutely met the standard of care”.

[221] Dr. Smith testified that, following his discharge from PRHC in January 2011, Mr. Forget’s next few months were dominated by superficial wound issues. Dr. Smith testified that superficial wound management could continue for a long period, where the wound becomes chronically infected and is difficult to heal. Dr. Smith advised that it was appropriate to take a conservative approach by dressing and packing the wound. Only if that method was unsuccessful would work be undertaken to explore why the wound was not healing.

[222] Dr. Smith opined that Dr. Gibb followed the proper tenets of superficial wound management. Dr. Gibb continuously monitored Mr. Forget’s progress, arranged for dressing changes and home care in August 2011. When it became clear that the wound was not healing appropriately, Dr. Gibb discussed exploration of the wound under general anaesthetic for debridement. Dr. Smith testified that the ability to debride a wound is a core competency skill required of all surgeons. Dr. Smith explained that surgeons deal with a myriad of wound issues and debridement is not a matter suitable for a referral unless the issues extended for three to four years.

[223] Based on his review of the operative notes and the discovery transcript of Dr. Gibb, Dr. Smith explained that, during the debridement surgery performed by Dr. Gibb on Mr. Forget in August 2011, Dr. Gibb opened Mr. Forget’s wound, looked for dead/chronically infected tissue and foreign bodies, including mesh or suture material, found a number of Mersilene sutures, which were braided sutures used by a prior surgeon, removed them and cleaned the wound.

[224] Dr. Smith opined that the wound care methods and debridement surgery completed by Dr. Gibb up to and including August 4, 2011, were all within the standard of care.

[225] Dr. Smith testified that, within a short period following the August 4, 2011 wound debridement, Mr. Forget’s wound became infected with cellulitis. Dr. Rowson completed a further debridement surgery and an infected haematoma was removed. Later in August 2011, another debridement surgery was completed by Dr. Petrasek and the wound then healed by October/November 2011.

[226] Dr. Smith explained that Mr. Forget had developed a recurrent hernia by November 2011, which would be “no surprise to any surgeon that it would recur”.

[227] Dr. Smith testified that the recurrent hernia was a large ventral hernia that was complicated by the recent fistula.

[228] In November 2011, Dr. Gibb properly referred Mr. Forget to Dr. Okrainec, who is a surgeon that performs complex ventral hernia repairs. The wait time for the referral was approximately four (4) months which Dr. Smith stated, “was not bad”.

[229] According to Dr. Smith, Dr. Gibb’s referral of Mr. Forget to Dr. Okrainec in November 2011 was within the standard of care. Dr. Smith testified that Dr. Gibb “absolutely” met the standard of care and noted that there are longer stages of recovery and a referral is not made until the adhesions mature (i.e., the edges of the hernia mature), and all inflammation has subsided. Dr. Smith stated that there was “no urgency” to operate on the type of hernia that Mr. Forget had developed and the longer wait period “maximized” his chance of success.

[230] With respect to the wound care aspect of Dr. Gibb’s care, Dr. Smith opined that all of Dr. Gibb’s care fell within the standard of care for surgeons in Ontario.

iv. Dr. Smith’s Evidence on Cross-examination

[231] During cross-examination Dr. Smith testified to the following:

a. Standard of care is not linked to risk. Standard of care is the level of care or the standard that you would receive from a thoughtful surgeon at any hospital in Ontario.

b. Standard of care does not increase if a patient has a higher risk profile. Whether you are operating on someone who is 21 years old or 90 years old, the level of care should be the same.

c. Bowel injuries are known risks of hernia surgery and depending on the nature of the injury can be serious and/or fatal.

d. Dr. Smith was not provided with Dr. Grieve’s referral letter to Dr. Gibb; however, he does not see Mr. Forget’s December 14, 2010, hernia repair surgery as being a “complex repair”.

e. Dr. Gibb was repairing an “incisional” hernia. Dr. Smith testified that it was clear that there had been earlier surgeries as “incisional hernias don’t occur on their own without [a prior] surgery”.

f. Dr. Gibb’s report to Dr. Grieve and the Consent Form signed by Mr. Forget both stated: “incisional hernia repair”, and it is implied that the repair is open unless specified otherwise. Also, hernia repair “redoes” always involve mesh.

g. It is important to ensure there are no bowel injuries following a hernia repair surgery, but bowel injuries can happen to even the most carefully operating surgeons. Surgeries have inherent risks and complications can always happen.

h. With respect to the December 22, 2010 surgery, bowel repairs can leak in the best of situations. Dr. Smith would not draw the conclusion that Dr. Gibb’s work fell below the standard of care because his repair of Mr. Forget’s bowel on December 22, 2010, ended up leaking. Side-to-side anastomosis repairs can also fail and leak in the best of circumstances.

i. Chronic abdominal pain is very common and there is an association between chronic abdominal pain and the presence of adhesions between the bowel and the abdominal wall; however, there is little to no literature on the subject.

v. Response to Dr. Shahi’s Evidence

(a) The December 14, 2010 Surgery

[232] “Laparoscopic vs. Open Surgery”: Dr. Smith testified that this was a “ridiculous” complaint. The surgery could have been scheduled as laparoscopic and most likely would have been converted to open surgery once Dr. Gibb viewed the site. In any event, Mr. Forget’s operation proceeded via open surgery and this decision was entirely appropriate.

[233] “Bowel Preparation”: Dr. Smith testified that bowel preparation is not part of the standard of care that would have been expected in Mr. Forget’s circumstances. Dr. Smith testified that, in his 30 years of practice, he has never ordered “bowel preparation” for his patients undergoing hernia repair surgery. Dr. Smith testified that he discussed this issue with his colleagues and confirmed that not ordering bowel preparation prior to a hernia repair surgery is not a breach of the standard of care.

[234] Dr. Smith testified that “bowel preparation” is a concept from the 1940s and 1950s when it was believed that the reduction of stool, coupled with antibiotics, might decrease the likelihood of bowel repair leaks. While bowel preparation became a “dogma” for colon surgery, it is not used for hernia surgery.

[235] Dr. Smith testified that he reviewed the references cited by Dr. Shahi in support of “bowel prep” and noted they report “low quality evidence” and made “no recommendations” and any other references were patient sheets that were very general in nature. Dr. Smith was adamant that “bowel prep” is not part of the standard of care for hernia surgery.

[236] “Running the Bowel”: Dr. Smith testified that Dr. Shahi’s claim that Dr. Gibb should have “run the bowel” after dissecting the adhesions “made no sense to him because it is not physically possible as there is no way to run the bowel with a 2–3 cm hernia.

[237] Dr. Smith testified that if Dr. Gibb were to run the bowel as suggested by Dr. Shahi, it would mean extending the incision, which in Mr. Forget’s case, would require an incision down to his pelvis. Running the bowel would have turned a day surgery procedure into a major surgery and would create a “huge risk and a whole host of potential complications”. Dr. Smith testified that a surgeon would be at risk of puncturing long lengths and mesh would be required from the top to the bottom. Dr. Smith testified that Dr. Shahi’s position on running the bowel “[made] no sense”.

[238] Dr. Smith testified that instead of “running the bowel”, the surgeon needs to take down adhesions for 2–3 cm around the hernia and “that’s it”. Dr. Smith stated that a surgeon’s scissors are for taking down adhesions and they never go deeper than 2–3 cm. The use of these scissors is at the “very core of what [surgeons] do”. Hernia surgeons are trained to release adhesions and then look to ensure that the area is not injured. Dr. Smith believed that Dr. Gibb did this during Mr. Forget’s initial hernia repair surgery on December 14, 2010.

(b) The December 22, 2010 Surgery

[239] “Running the Bowel”: Dr. Smith testified that the December 22, 2010, surgery was “damage control surgery”. He stated that the purpose of the surgery was to “find the problem and deal with the problem”. He testified that “you are there to save the patient’s life, you go in, find the hole, deal with it, suction it, irrigate it”. Dr. Smith repeated that “running the bowel” was not considered a component of the standard of care.

[240] “Side-to-side anastomosis vs. primary repair”: Dr. Smith testified that there is no literature on this issue. Both repair methods are used and both can be within the standard of care given the right circumstances. Dr. Smith testified that surgeons are trying to assess the best way to repair perforations which result in minimizing risk to the patient and, ultimately, the decision on the repair method depends on the size of the injury, the condition of the bowel around it, the blood supply to the area, and the degree of contamination. Dr. Smith testified that surgeons must also consider other factors relevant to the individual patient. Dr. Smith testified that the decision whether to use side-to-side anastomosis compared to a primary repair is a surgical judgment issue, which is why surgeons spend so much time in training. According to Dr. Smith, the literature and surgeons’ training explain that both side-to-side anastomosis and the primary repair method are within the standard of care.

[241] Dr. Smith noted that if there is extensive damage to the bowel, it is often better to resect. Surgeons will look at the size of the “cut”, the surrounding tissue health, and consider what it would look like if they completed a primary repair as it may narrow the bowel and cause an obstruction. Dr. Smith testified that, after reading Dr. Gibb’s discovery transcripts, he noted that Mr. Forget’s bowel perforation was 0.5 cm, with no evidence of surrounding tissue damage. Dr. Smith noted that the perforation was likely a cut from scissors. Dr. Smith testified that he would likely have closed the injury using the primary repair method as it was a small hole and the bowel appeared to be healthy. Again, Dr. Smith explained that using the primary repair method in the circumstances of Mr. Forget’s case, met the standard of care.

[242] Dr. Smith testified that both procedures, side-to-side anastomosis and primary repair, have a risk of leaking. It does not matter if sutures are used or a resection is completed during the repair as, the longer the incision, the greater the likelihood that a leak will occur.

[243] Dr. Smith denied the correctness of Dr. Shahi’s statement that the risk of a leak after using side-to-side anastomosis was 1 in every 10,000. He testified that, if this statistic was true, then the primary repair method would not be acceptable. Dr. Smith testified that the risk of experiencing a bowel leak after performing a side-to-side anastomosis repair is 1–5%. He does not know where Dr. Shahi got his 1 in every 10,000 statistic. Dr. Smith testified that the results of the leakage rates between both repair methods must be clinically close to one another to make both acceptable from a standard of care perspective. Otherwise, the standard of care would always be to use a side-to-side anastomosis; however, this is not the case as the primary repair method is also acceptable.

(c) Causation: Ongoing Pain and Discomfort

[244] Dr. Shahi opined that Mr. Forget’s ongoing abdominal pain may be related to scarring and adhesions. Dr. Smith testified that he does not agree with Dr. Shahi’s conclusion. Dr. Smith explained that scar tissue has no nerve endings and adhesions are scar tissues. Dr. Smith testified that the medical community does not believe that scar tissue and adhesions cause pain and noted that anyone who has had abdominal surgery has adhesions, but not everyone has pain.

(d) Gallbladder Sludge and Gallbladder Issues

[245] Dr. Smith testified that there is a well-recognized connection between rapid weight loss and gallstones, but the weight loss must be a massive weight loss. As a result, Dr. Smith disagreed that a loss of 15 pounds over 18 months is rapid massive weight loss and did not agree that, in the present case, there was a connection between Mr. Forget’s surgeries, his weight loss, and his gallbladder issues.

(e) Dr. Mikula “Ran the Bowel”

[246] Dr. Smith reviewed Dr. Mikula’s operating notes from September 2012 regarding Mr. Forget’s abdominal wall reconstruction surgery. Dr. Smith testified that Dr. Mikula and Dr. Brenneman did a full-length operation and opened the abdominal wall to complete an abdominal wall reconstruction. In completing this operation, the two surgeons removed all of Mr. Forget’s adhesions, including the bowel-to-bowel adhesions. However, Dr. Smith was adamant that Dr. Mikula and Dr. Brenneman did not “run the bowel” as suggested by Dr. Shahi. Instead, Dr. Smith explained that Drs. Mikula and Brenneman were taking down adhesions, which is a formal manoeuvre that was not described in Dr. Mikula’s operative note.

GOVERNING PRINCIPLES

I. Elements of a Cause of Action for Negligence

[247] Mr. Forget is suing Dr. Gibb in negligence and alleges that Dr. Gibb breached the standard of care when delivering healthcare services to Mr. Forget between October 2010 (when Dr. Gibb had his first consultation with Mr. Forget) and November 2011 (when Dr. Gibb referred Mr. Forget to Dr. Okrainec and ceased treating him).

[248] The elements of a negligence action are well established. To prove liability in negligence, a plaintiff must show: (i) that the defendant owed a duty of care to avoid the kind of loss alleged; (ii) that the defendant breached that duty by failing to observe the applicable standard of care; (iii) that the claimant sustained damage; and (iv) that such damage was caused, in fact and in law, by the defendant’s breach: see Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[249] It is trite law that doctors owe a duty of care to their patients and may be held liable for their professional negligence: see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 25. Further, doctors may be held responsible in negligence for their actions both before and after treatment of their patient: see Allen M. Linden et al., Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada Inc., 2022), at p. 223. It is not at issue that Dr. Gibb owed Mr. Forget a duty of care given their surgeon/patient relationship.

[250] Instead, this case turns on whether Dr. Gibb breached the standard of care when caring for Mr. Forget and whether Dr. Gibb’s negligence caused Mr. Forget’s losses: see Stevenhaagen (Estate) v. Kingston General Hospital, 2020 ONSC 5020, at para. 116, aff’d 2022 ONCA 560.

[251] As succinctly summarized by Sopinka J. in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at para. 33: “[i]t is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances”. As explained by Schroeder J.A. in Crits et al. v. Sylvester et al., 1956 34 (ON CA), [1956] O.R. 132 (C.A.), at p. 143, every physician “is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing.” Simply, physicians will breach the standard of care when they fail to act like a reasonably prudent doctor: see Linden et al., at p. 213.

[252] The onus is on the plaintiff to demonstrate, on a balance of probabilities, that “the decisions and actions of the defendant were not those which would have been taken by a reasonable, competent physician in the circumstances”: see Stevenhaagen (Estate), at para. 110.

[253] Notably, a doctor’s “mere error of judgement” will not be sufficient to yield damages in tort: see Linden et al., at p. 224; Johnston v. Wellesley Hospital et al., 1970 273 (ON SC), [1971] 2 O.R. 103 (H.C.J.), at pp. 113–14; and Wilson v. Swanson, 1956 1 (SCC), [1956] S.C.R. 804, at p. 812.

[254] While physicians may have differing opinions on treatment, if an error of judgement could not have been made by a reasonably competent physician with the skill and judgement of the defendant doctor, then that error will be negligent. However, if the error could be made while working within the standards of ordinary care, the error will not constitute negligence: see Fish v. Shainhouse, [2005] O.J. No. 4575 (S.C.J.), at para. 12, citing Whitehouse v. Jordan, [1981] 1 All E.R. 267 (H.L.), at p. 281.

[255] When considering whether a reasonable doctor would have undertaken the same course of treatment for their patient, a trier of fact should avoid using hindsight or a retrospective analysis. In Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, at pp. 362–363, the Supreme Court of Canada held that:

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

[256] In ter Neuzen, at para. 34, the Supreme Court acknowledged that “the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence.” Later, at para. 38, the court held that “when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent”.

[257] A decision that, in hindsight, turns out to be wrong will not necessarily be held to have been a breach of the standard of care so long as the doctor acts “in accordance with a respectable body of medical opinion – even if it is a minority opinion”: see Connell v. Tanner, 2002 44921 (ON CA), 158 O.A.C. 268 (C.A.), at para. 1.

[258] An unfortunate outcome is not the measure of negligence, nor is it the measure of a breach of standard of care. As noted in St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53: “[p]rofessionals have an obligation of means, not an obligation of result.” Provided that the physician was acting as a reasonable doctor would have, the doctor will not necessarily have breached the standard of care, even if it is determined later that there were better options available compared to those that were selected: see Stevenhaagen (Estate), at para. 111.

[259] The standard expected of doctors is not perfection; rather, it has been held that “honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation”: see Stevenhaagen (Estate), at para. 109, citing Wilson, at p. 812.

[264] Ultimately, to assess whether the standard of care was breached, medical malpractice cases require expert evidence to be presented to the court. The reason for this requirement was set forth by the Court of Appeal for Ontario in Liu v. Wong, 2016 ONCA 366, at para. 14:

Medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, this Court and others have stated that aside from “the clearest of cases” the absence of expert evidence in support of the plaintiff’s medical malpractice claim is fatal: see Larman v. Mount Sinai Hospital, 2014 ONCA 923.

[265] As a result, the outcome of medical malpractice actions will oftentimes turn on the expert evidence presented to the court.

II. Assessing Evidence

[266] With respect to reviewing and assessing evidence, Thorburn J. (as she then was) provided a helpful summary of the law and the rules to be followed in R. v. Chauhan, 2014 ONSC 5557, at paras. 38–42:

[38] All of the evidence should be considered together, rather than assessing individual items of evidence in isolation. This is particularly true where the principal issue is the credibility and reliability of witnesses.

[39] The court must be satisfied of two things beyond a reasonable doubt: (1) that a complainant is a credible witness, and (2) that her account is reliable.

[40] Credibility is the witness’ willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall and recount events.

[41] A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. The reliability of the evidence is what is paramount.

[42] Parts of a witness’ evidence may be accepted and others rejected. Some parts may be more important than others. While a guilty verdict may be founded on the evidence of a single witness, a determination of guilt must not devolve into a credibility contest between two witnesses. Such an approach undermines the presumption of innocence and the requirement of proof beyond a reasonable doubt. [Citations omitted].

a) Credibility and Reliability: Consistencies and Inconsistencies

[267] Where there are inconsistencies between a witness’s testimony at trial and their prior statements, points of consistency on essential aspects of the allegations are relevant to the credibility and reliability assessment of a complainant’s evidence: see R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34–36; R. v. Perkins, 2015 ONCA 521, at para. 9.

[268] Further, it must be considered that inconsistencies may emerge from things said differently by a witness at different times, or from the witness omitting to refer to certain events at one time while referring to them on other occasions: see R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12.

[269] Inconsistencies can vary in their nature and importance. Some inconsistencies are minor, others are not. Some inconsistencies may concern material issues; others will be in relation to peripheral subjects. Where an inconsistency involves something material about something which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: see M. (A.), at para. 13.

b) Expert Witnesses

[270] Although expert reports are exchanged and form the basis for examinations at trial, it is the expert’s testimony that constitutes the evidence at trial, and not their reports. If an expert does not testify to something contained in their report, the judge is not to seek the information from the report. To proceed otherwise would create unfairness in the trial process: see 1162740 Ontario Limited v. Pingue, 2017 ONCA 52, 135 O.R. (3d) 792, at paras. 19–20; Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 131; and R. v. Browne, 2017 ONSC 5059, at paras. 16–17.

[271] Experts can only testify to matters on which they have been qualified. Evidence on a topic that falls outside the scope of their qualifications is not admissible: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330 (“Abbey 2009 (ONCA)”), at para. 76, leave to appeal refused, [2010] S.C.C.A. No. 125; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 23; and Stepita v. Dibble, 2020 ONSC 3041, at paras. 27–29.

[272] Experts cannot testify about the credibility or reliability of a witness’s evidence. Evidence that an expert believes one witness over another is not admissible. However, this prohibition does not prohibit experts from being able to draw inferences about what transpired in a given case: Parliament (Litigation Guardian of) v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at para. 44; R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24 (“Abbey 1982 (SCC)”), at p. 44.

[273] The purpose of expert evidence is to assist the trier of fact by providing special knowledge that the ordinary person would not know: see R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 56; R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at pp. 23–25.

[274] Expert witnesses have a duty to provide the court with fair, objective, and non-partisan opinion evidence: see Abbey 2009 (ONCA), at para. 76; White Burgess, at para. 2.

[275] Experts should not become advocates for the party by whom they are retained. Experts must remain independent, and their function is to provide the trier of fact with expert opinion evidence that is fair, objective, and non-partisan: see Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 1, leave to appeal refused, [2017] S.C.C.A. No. 343. Where an expert crosses the boundary of acceptable conduct and descends into the fray as a partisan advocate, the trial judge is required to fulfil their ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony: see Bruff-Murphy, at para. 6; Conley, at paras. 45, 47; and R. v. P.G., 2009 ONCA 32, 242 C.C.C. (3d) 558, at para. 27.

[276] It is not the expert’s role to weigh evidence or assess the credibility of witnesses. Experts are not to usurp the role of the trier of fact: see Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641 (C.A.) at p. 664–65; Snelgrove v. Jensen, 2015 ONSC 585, 45 C.L.R. (4th) 134, at para. 9; Conley, at para. 44; and R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 46.

[277] An expert who is called to give an opinion upon disputed facts may elicit their opinion through the vehicle of a hypothetical question: P.G., at para. 28.

[278] In Conley, the court rejected the evidence of one expert on the basis that their reports included credibility assessments, inaccuracies and methodological flaws and lacked objectivity. The court rendered the expert incapable of providing an impartial opinion and refused to admit her evidence: see Conley, at paras. 28, 45–47.

[279] It is well established that a trial judge's role as gatekeeper is not exhausted once a particular expert has been permitted to testify based on their qualifications and the content of their report: see Bruff-Murphy, at paras. 62–66; Sekhon, at paras. 46–47. Rather, the trial judge must protect the integrity of the process by ensuring that the expert does not overstep the acceptable boundaries in giving evidence: see Abbey 2009 (ONCA), at para. 62.

[280] Even when the content and scope of an expert’s evidence is delineated in advance, the expert may stray during their oral testimony. While their report may provide a roadmap of their anticipated testimony, specific limits may be placed on certain areas of the expert’s in-court evidence. Notably, however, the trial judge cannot predict with certainty the nature or content of the expert’s testimony while in court. Therefore, where the expert’s testimony removes any doubt about their independence, the trial judge must continue to exercise their gatekeeper function throughout the trial: Conley, at paras. 45–47; Bruff-Murphy, at paras. 62–66; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 50; and R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170, at para. 30.

[281] The summary of the law above on expert evidence makes clear that a review of the expert evidence is not a matter of preferring one expert over another. Instead, it is necessary to consider the basis upon which the experts have founded their opinions, and ensure that their opinions are independent, objective and soundly made. Experts must present their opinions without bias and, in this case, the experts’ opinions must be focused on whether Dr. Gibb met the standard of care of a normal, prudent surgeon when caring for Mr. Forget.

c) Competing Opinions on Standard of Care

[282] In Vescio v. Garfield, 2007 24676 (Ont. S.C.J.), at para. 102, Moore J. outlined that a court should weigh the following factors when assessing the evidence of medical expert witnesses:

• The relevance of the training, expertise and specialty of the witness to the medical issues before the court;

• Any reason for the witness to be less than impartial; and

• Whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial.

[283] Ultimately, the task of resolving the battle between expert witnesses, regardless of their field or specialty, is the responsibility of the trier of fact. As the trial judge, it is my responsibility to judiciously undertake the task of sifting through the evidence of both Dr. Shahi and Dr. Smith and provide adequate reasons that explain how I weighed their evidence: D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356, 307 O.A.C. 71, at paras. 38–48.

d) Medical Records

[284] In medical malpractice actions, medical records are routinely relied upon by courts as a primary source of evidence. Medical records are also relied upon by members of the medical community as a memory aide and serve as a foundation on which expert witnesses may base their opinions.

[285] Medical records are admissible as business records as they are contemporaneously prepared by individuals who are under a legal duty to prepare them: see Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608, at p. 626.

[286] Absent evidence that the medical records were falsified or altered, medical records provide proof of the facts stated therein and should be given substantial weight: see Ares, at p. 626.

[287] A witness, such as Dr. Gibb, cannot be faulted or criticized because his recollection is refreshed by the medical records and operational notes at issue. Refreshing one’s memory from medical records is entirely appropriate and is common practice in medical trials, just as it is common practice for police to refresh their memories from their contemporaneous notes: see Armstrong v. McCall, 2006 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 25.

e) Evidence of Regular or Standard Practice

[288] A medical professional’s evidence of their standard or regular practice is admissible and reliable. Where physicians have no specific recollection of their dealings with a patient, their ordinary or invariable practice can be considered as strong evidence that the physician acted the same way on the day in question: see Belknap v. Meakes, 1989 5268 (BC CA), [1990] 64 D.L.R. (4th) 452 (B.C.C.A.), at pp. 465–66; Turkington v. Lai (2007), 2007 48993 (ON SC), 52 C.C.L.T. (3d) 254, at para. 93; Keith v. Abraham, 2011 ONSC 2, at paras. 213(vii), 279; Bafaro v. Dowd, 2008 45000 (Ont. S.C.J.), at para. 29, aff’d 2010 ONCA 188; and Jones-Carter v. Warwaruk, 2019 ONSC 1965, at para. 266.

ANALYSIS

I. The Credibility and Reliability of the Non-Expert Witnesses at Trial

a) The Plaintiff, Mr. Forget

[289] The Plaintiff, Mr. Forget, appeared as a conscientious and credible witness. Mr. Forget testified in a straightforward manner. He was soft-spoken, polite, and articulate. He did not appear to exaggerate or speculate. Mr. Forget answered all questions asked of him without being hesitant or combatant. I found Mr. Forget to be a credible and honest witness.

[290] While I found that Mr. Forget made earnest efforts to accurately report his illnesses, symptoms, and treatment, I am of the view that Mr. Forget’s focus on his abdominal issues has interfered with his ability to provide reliable and objective evidence. Specifically, I did not find Mr. Forget’s evidence on how his medical issues impacted his daily activities, including his work, exercise and social life, to be reliable.

[291] For example, after having thoroughly reviewed Mr. Forget’s extensive medical records, I am of the view that Mr. Forget’s in-court testimony and his LTD and CPP disability applications underreport the severity of his illnesses that are not connected to his abdominal issues (i.e., Meniere’s disease), and over emphasizes the severity of his abdominal issues with a specific reference to the 2010 surgeries, despite him having numerous surgeries both prior to and following 2010. Mr. Forget testified that he has consistently experienced episodes of small bowel obstructions since 2010 and that there has not been any change with respect to these obstructions. This evidence is contradicted by the notes of Mr. Forget’s treating physicians: Dr. Grieve, Dr. Mikula, Dr. Cheverie, and Dr. Bodie. Further, Dr. Almadadma’s records do not note that Mr. Forget has reported any complaints of small bowel obstructions since 2021.

[292] Furthermore, Mr. Forget was recalcitrant to admit that he continued to run, travel, and scuba dive following the surgeries performed by Dr. Gibb in 2010. The evidence established that by May 19, 2011, Mr. Forget could run on the treadmill for 30 minutes a day and, by September 17, 2012, he went on two 5km runs per week. Mr. Forget attempted to distinguish the act of running from jogging to explain the inconsistency in his evidence. I found this attempt to distinguish running from jogging to be ineffective. At trial, Mr. Forget also testified that he had difficulty returning to scuba diving activities and “no longer dives presently”. However, Dr. Mikula’s medical records established that on October 10, 2012, that Mr. Forget advised her that he would be “going Scuba diving over the Christmas holiday” and on December 11, 2012, Dr. Mikula “cleared him to go on his Scuba dive trip”. Further, Ms. Welton testified that they continued to scuba dive as recently as January 2024 while on a trip to Mexico.

[293] Accordingly, although I found Mr. Forget to be a credible witness who appeared to be a careful historian, after having compared the information contained in his medical records, his testimony, Ms. Welton’s testimony, and the information contained on his LTD and CPP disability applications, I have great concerns about the reliability of Mr. Forget’s evidence. These concerns regarding the reliability of Mr. Forget’s evidence attaches to almost all aspects of his evidence: his ability to recall conversations with Dr. Gibb, his attribution of medical issues/symptoms to his hernia surgeries in December 2010, his ability to resume employment, his ability to participate in sporting events and social activities and his ability to recall his symptoms with any accuracy.

[294] For the foregoing reasons, I have treated Mr. Forget’s evidence with care, as much of his testimony relating to his symptoms, complaints, and physical abilities is materially inconsistent with his medical records and the other evidence presented at trial.

b) The Plaintiff, Ms. Welton

[295] Ms. Welton provided testimony that was supportive yet independent of Mr. Forget. Ms. Welton provided her testimony in a straightforward manner, she was cooperative, and she did not seek to avoid or evade questions, even when her evidence conflicted with that provided by Mr. Forget. Ms. Welton appeared to be a credible witness who provided reliable testimony.

c) Mr. Forget’s Family Physician, Dr. Grieve

[296] Dr. Grieve appeared to be a conscientious and credible witness; however, I have concerns about the reliability of his evidence. Dr. Grieve viewed himself as an “advocate” for Mr. Forget and acknowledged that the information received from Mr. Forget regarding his LTD application was not corroborated by the medical records of other doctors. Dr. Grieve included information in the LTD application as dictated by Mr. Forget. Hence, I have difficulty relying on the information submitted to the court by Dr. Grieve as it relates to Mr. Forget’s LTD application and his CPP disability application. I accept Dr. Grieve’s statement that he views himself an advocate for Mr. Forget. In turn, I have found that Dr. Grieve was not objective when providing his evidence to the court. Given these circumstances, I have treated Dr. Grieve’s evidence with care.

d) The Defendant, Dr. Gibb

[297] Dr. Gibb appeared to be a conscientious and credible witness, who provided reliable evidence. Dr. Gibb was direct, polite, and articulate and he answered all questions asked of him without being hesitant or combative. He admitted facts that were not always favourable to his position. Dr. Gibb admitted that Mr. Forget’s surgeries failed, for one reason or another, and did not try to ‘sugar coat’ the events at issue. When Dr. Gibb was unable to recall particular details, he quite properly provided evidence based on his notes, the nursing notes, and/or his ordinary and usual practice as a general surgeon established over the course of his career. I found Dr. Gibb to be a credible witness who provided reliable evidence.

II. The Credibility and Reliability of the Expert Witnesses at Trial

a) The Plaintiffs’ Expert, Dr. Shahi

[298] Dr. Shahi presented as a personable and compelling witness who had not previously provided expert medical evidence in the Superior Court of Justice.

[299] Dr. Shahi’s background, education, and experience, were sufficient to qualify him as an expert witness and he was so qualified.

[300] However, having been duly qualified does not end the matter.

[301] A judge’s gatekeeping function is not extinguished upon a witness being qualified to provide expert evidence to the court. The judge must remain vigilant to ensure that the expert witness honours the duties and responsibilities that accompany their role. An expert witness is not entitled to determine issues of fact in dispute, comment on the credibility of other witnesses or advocate for either party. An expert witness must be unbiased, objective, fair and reasonable.

[302] Unfortunately, Dr. Shahi did not understand his obligations to the court, his role or duty as an expert. Once qualified as an expert, Dr. Shahi did not provide evidence in a manner that was acceptable of an independent, unbiased and objective expert. Some examples of Dr. Shahi’s breaches of his duty as an expert witness are as follows:

a. Dr. Shahi quite plainly stated that, while he had read Dr. Gibb’s transcripts for discovery, he did not consider the evidence provided therein. Instead, Dr. Shahi relied only on the relevant operative notes and medical records. More particularly, Dr. Shahi stated that he “wouldn’t even pay attention [to] what Dr. Gibb said in the discovery” on the basis that “what’s in the discovery, to me, is irrelevant”. This statement and Dr. Shahi’s decision to ignore the discovery evidence in forming his expert opinion constitutes a fundamental misunderstanding of his duties and obligations as an expert witness.

b. Where facts differed between Mr. Forget’s evidence and Dr. Gibb’s evidence, Dr. Shahi always favoured Mr. Forget’s evidence and/or ignored Dr. Gibb’s evidence, thus becoming an advocate. An example of this failing could be found when Dr. Shahi asserted that the December 14, 2010, surgery was originally scheduled to be by “laparoscopy” but was changed due to “the operating room not being properly set up”. Dr. Shahi was unwavering in his adoption of Mr. Forget’s evidence and completely ignored Dr. Gibb’s evidence to the contrary that the surgery was never supposed to proceed by way of laparoscopy. By ignoring the evidence of Dr. Gibb, Dr. Shahi crossed the threshold of serving as an expert witness for the courts benefit and became an advocate on behalf of Mr. Forget. This methodology of Dr. Shahi constitutes a fundamental misunderstanding of his duties and obligations as an expert witness.

c. Dr. Shahi weighed competing evidence, made findings of fact that unfailingly favoured Mr. Forget, and then provided his “expert” opinion based on the facts as found by him. An example of this failing was when Dr. Shahi provided the opinion that Dr. Gibb breached the standard of care by using the primary repair method to repair the perforation in Mr. Forget’s bowel on December 22, 2010. Dr. Shahi opined that the standard of care required Dr. Gibb to use the side-to-side anastomosis technique instead of the primary repair method. This opinion was based on Dr. Shahi’s underlying factual findings that “there was no mention of the size of the hole” and the “bowel tissue” was unsuitable for a primary repair due to presumed contamination. These facts, again, completely ignore Dr. Gibb’s evidence that the hole was a “pinhole” and that the bowel tissue was healthy.

d. Dr. Shahi gave opinion evidence that was result-orientated. On more than one occasion, Dr. Shahi testified that he knew that Dr. Gibb did not meet the standard of care because his repair of Mr. Forget’s bowel perforation had failed. There is no legitimacy to this type of thinking. The standard of care is not determined by outcome, but through an analysis of the doctor’s actions or inaction.

e. Dr. Shahi appeared to have misunderstood the role of the judicial system, the seriousness of the process, and his role in the judicial process as an “expert witness”. Some examples of his misunderstandings include:

i. When asked about the likelihood of Mr. Forget having suffered a full-thickness bowel perforation during the December 14, 2010 surgery, Dr. Shahi testified: “I mean, say we’re not in this courthouse at all, and someone tells me, you know, for seven days there’s absolutely nothing. Hard for me to believe, to be honest. But I say, yeah, it’s far-fetched to say there was a full thickness injury”.

ii. When asked whether important facts informed his opinion, Dr. Shahi stated: “What goes in the court and the use of words and things is one thing, reality and truth is another thing”.

iii. When selecting which articles to cite in his report, Dr. Shahi stated: “the reliability [of the article] was not much attention for me at that time”.

iv. When asked about the significance of sworn evidence, Dr. Shahi testified:

(a) “I, Dr. Shahi, God forbid, may lie, okay, but my operative report, which is there, doesn’t lie, because at the time, I didn’t know I’m going to find myself in the courthouse”.

(b) “I may choose to lie, or I may simply have forgotten, or I may simply whatever, but the operative note is the operative note, sir. That’s why there is something called the operative note”.

(c) “I based my opinion on the facts that are professional, not on judicial facts, sir”.

[303] Further, I find that Dr. Shahi fundamentally misunderstood the concept of the standard of care. Examples of his misunderstanding are as follows:

a. On cross-examination, it was put to Dr. Shahi that “if the standard of care requires something then it’s mandatory, isn’t that true?” Dr. Shahi responded “No, that’s not true, sir, the standard of care is not necessarily mandatory”.

b. “Something I consider standard of care may not be necessarily considered a standard of care by another surgeon”.

c. Dr. Shahi explained that his assessment of Dr. Gibb’s care was premised on what he would have done personally, not what the standard of care required, with a view to the ultimate outcome of Mr. Forget’s care.

d. Dr. Shahi testified at various times that the “standard of care” is dictated by the outcome or result of the surgery.

[304] An expert must be willing and able to provide evidence that is impartial, independent and unbiased. Where the expert crosses the boundary of acceptable conduct and descends into the fray as a partisan advocate, the trial judge is required to fulfil their ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony: see Bruff-Murphy, at para. 6; Conley, at paras. 45, 47; and P.G., at para. 27.

[305] I have reviewed and considered Dr. Shahi’s evidence at length to separate that which is tainted by bias in favour of Mr. Forget, from that which is acceptable. Having completed this task, I find that, in the circumstances, it is difficult to separate the inappropriate and impermissible methodology that Dr. Shahi relied upon to develop his expert opinion from his evidence presented in court.

[306] While it would be permissible in these circumstances to exclude the entirety of Dr. Shahi’s evidence — I have reviewed the breaches of standard of care as alleged by Dr. Shahi and have made individual findings with respect to each alleged breach. These alleged breaches are discussed following my analysis of Dr. Smith’s evidence.

b) The Defendant’s Expert, Dr. Smith

[307] Dr. Smith has been qualified by the Superior Court of Justice to provide expert medical evidence on three occasions. Additionally, over the course of his career, Dr. Smith has been retained to prepare approximately 50–60 expert reports.

[308] Dr. Smith testified that his involvement in legal proceedings as an expert witness has been equally divided between retainers for both plaintiffs and defendants.

[309] Dr. Smith proved himself to be an independent and objective expert tasked with the duty of providing the court with his specialized medical opinion regarding the standard of care applicable to general surgeons who perform hernia repair surgeries.

[310] I found Dr. Smith to be an exceptional witness.

[311] Dr. Smith’s testimony was straight-forward, non-combative, and responsive to the questions asked of him. His education, experience and knowledge of the subject matter, hernia repairs and the standard of care applicable to Dr. Gibb during the relevant period, positioned him to be an excellent medical expert witness.

[312] Firstly, Dr. Smith was eminently qualified to provide an expert opinion on the matters in dispute, having over 30 years experience as a general surgeon and having dedicated his practice to hernia repairs.

[313] Secondly, Dr. Smith’s prior experience testifying before a court was evident in the manner that he prepared, and provided, his evidence. Dr. Smith properly reviewed the relevant medical records and the transcripts from the examinations for discovery and based his expert medical opinion on the totality of the evidence.

[314] Dr. Smith was cautious, conscientious, and balanced in his approach. He was thoughtful and considered while providing his testimony. He did not assume or presume facts unless he was asked to respond to a hypothetical question.

[315] Dr. Smith did not prefer one witness’s testimony over another, nor did he ‘enter the fray’ and become positional. Dr. Smith was steadfast in staying objective and independent.

[316] Dr. Smith provided the court with a fulsome explanation of the medical procedures undertaken by Dr. Gibb, the risk factors involved, the expectations of the profession and the guidelines and standards applicable to Dr. Gibb as a general surgeon providing healthcare services to Mr. Forget.

[317] Dr. Smith advised that there was not much medical literature to settle the differences of opinion between himself and Dr. Shahi. However, Dr. Smith explained that he reviewed the literature relied upon by Dr. Shahi, consulted with his colleagues, and reflected on his own knowledge and experience before forming his expert opinion.

[318] Dr. Smith told the court that “results” do not determine the “standard of care”. He clearly and specifically advised that there is “always” a risk of injury to the bowel during any hernia or abdominal surgery and that the existence of a bowel injury does not mean that the standard of care was breached.

[319] Dr. Smith carefully reviewed the actions and methodology employed by Dr. Gibb in his care and treatment of Mr. Forget. Dr. Smith provided a balanced overview of Mr. Forget’s treatment from the view of an experienced and seasoned general surgeon who specializes in hernia repair.

[320] Dr. Smith provided clear and cogent evidence to the Court that was understandable, balanced, and logical.

[321] Dr. Smith presented as an experienced, fair, and balanced expert witness.

[322] In my view, Dr. Smith is the type of expert that the court requires in determining medical malpractice disputes such as the case at bar. Dr. Smith was eminently qualified and fair to all parties. He was a truthful, unbiased, and objective expert.

c) Review of the Alleged Breaches of the Standard of Care

[323] I begin with those allegations of breach of standard of care made by Dr. Shahi that are arguably based solely on “generally accepted standard of care procedures” and are not founded on disputed facts, a result-orientated view, or a misunderstanding of the concept of “standard of care’. The two breaches of the standard of care alleged by Dr. Shahi that fit this category are as follows:

a. The necessity to order “bowel prep” prior to the December 14, 2010 surgery; and

b. The necessity to “run the bowel” during the December 14, 2010 and December 22, 2010 surgeries.

[324] Having thoroughly considered the evidence relating to both issues, I find that neither “bowel prep” nor “running the bowel” form part of the standard of care applicable to Dr. Gibb in his performance of the surgeries on Mr. Forget on December 14, 2010 and December 22, 2010. I make this finding based on the following reasons:

a. Dr. Shahi’s testimony on “running the bowel” was contradictory, confusing, and nonsensical. Dr. Shahi did not cite any recognized authority in support of his proposition and, by his own testimony, he agreed that “running the bowel” would turn a simple procedure into a complicated and lengthy surgery which would involve an increased risk level and an uncertain outcome to the patient. I wholly reject Dr. Shahi’s evidence and opinion as it relates to “running the bowel”.

b. Dr. Shahi’s testimony regarding “bowel prep” was also contradictory and appeared to be based on medical practices dating back to the 1940s. While Dr. Shahi did cite authorities that supported his opinion on this issue, when pressed, Dr. Shahi admitted that the authorities did not recommend “bowel prep” for hernia surgery and did not note any benefit to the practice. I wholly reject Dr. Shahi’s evidence and opinion as it relates to “bowel prep”.

c. In contrast to Dr. Shahi’s opinion, Dr. Smith’s opinion regarding “running the bowel” and “bowel prep” logically flowed from the accepted facts and the medical evidence presented at trial.

d. With respect to the issue of “bowel prep”, Dr. Smith’s opinion was based on his knowledge, education, training, and experience and was consistent with the little amount of literature that was cited by Dr. Shahi. Dr. Smith explained that “bowel prep” was not a component of the standard of care for hernia repair surgery. Dr. Smith found that Dr. Shahi’s opinion on the “bowel prep” issue was based on unreliable data and unsubstantiated claims. I wholly accept Dr. Smith’s evidence and opinion in this regard, and I find that “bowel prep” does not form part of the standard of care applicable to Dr. Gibb in relation to the surgeries that he performed on Mr. Forget on December 14, 2010 and December 22, 2010.

e. With respect to the issue of “running the bowel”, Dr. Smith’s opinion that such practice did not form part of the standard of care for either December 2010 surgery was based on his knowledge, education, training, experience, and on the practical application of his medical knowledge and common sense. As Dr. Smith opined, “running the bowel” would have introduced a myriad of unnecessary risks and complications, would have greatly extended the length of the surgery, the length of the incision, the risk of bowel injury, and the risk of recurrent hernias. I accept and adopt Dr. Smith’s opinion that “running the bowel” was not part of the standard of care applicable to Dr. Gibb for either surgery.

[325] With respect to the remaining alleged breaches of the standard of care, I find as follows:

a. Informed Consent: I accept Dr. Gibb’s evidence that he provided Mr. Forget with sufficient information concerning the benefits and risks of the proposed hernia repair procedure, including the risk of injury to the bowel in accordance with his ordinary and usual practice. I accept Dr. Gibb’s evidence that it is his usual and ordinary practice to inform his patients of the risk of injury to the bowel while obtaining informed consent because, while the risk is low, the consequences of such an injury could be serious and/or fatal. I accept and adopt Dr. Smith’s opinion that Dr. Gibb met the standard of care in his preoperative care of Mr. Forget.

b. Laparoscopic or Open Surgery: I accept Dr. Gibb’s evidence that the December 14, 2010, hernia operation was always intended to be an “open” operation and was not supposed to proceed by way of a laparoscopic surgery. I accept that the medical documents referencing the surgery, including Dr. Grieve’s referral letter referring Mr. Forget to Dr. Gibb, confirmed his evidence that the surgery was always intended to be an “open” surgery. I find that Dr. Gibb’s evidence is supported by the various medical documents that pre-dated the surgery and I note that none of the documents referenced that the surgery would be “laparoscopic”. I also accept and rely upon Dr. Smith’s evidence that hernia surgery will, by default, be “open”, unless it is otherwise specifically indicated to be “laparoscopic”. I accept that Mr. Forget believed that the surgery was going to be laparoscopic in nature and that he repeated his misunderstanding to Ms. Welton — but I find that he was mistaken in this belief. I find no breach of the standard of care as it relates to the information provided to Mr. Forget or as it relates to the fact that the procedure was performed as an open surgery.

c. Dr. Gibb’s Knowledge of Mr. Forget’s Prior Abdominal Surgeries: I accept that Dr. Gibb was aware that Mr. Forget had underwent numerous abdominal surgeries prior to his October 18, 2010, consultation with Mr. Forget. I accept Dr. Grieve’s evidence that he sent Dr. Gibb a referral letter and provided Dr. Gibb with Mr. Forget’s general history and his cumulative patient profile. I also accept Mr. Forget’s evidence that he provided Dr. Gibb with a “printed” copy of his “medical history” at the October 18, 2010 consultation. I also accept Dr. Smith’s evidence that Mr. Forget had an incisional hernia that was being repaired by Dr. Gibb, and it would be “self-evident” to any surgeon that an “incisional hernia” means that Mr. Forget had prior abdominal surgery.

d. Partial Perforation vs. Full Perforation (Through and Through): I accept Dr. Gibb’s evidence that the injury that occurred to Mr. Forget’s bowel during the December 14, 2010 surgery was not “through and through”, but was a partial perforation not seen or diagnosed by Dr. Gibb on December 14, 2010. I accept Dr. Gibb’s evidence that, had it been a “through and through” injury, the bowel would have “puffed up” and/or there would have been evidence of an injury. I accept Dr. Gibb’s evidence that he carefully inspected the bowel for signs of injury via direct visualization and through the use of sponges (i.e., to check for blood) on December 14, 2010. I accept that, despite his efforts, Dr. Gibb did not locate any injury to Mr. Forget’s bowel. I accept Dr. Gibb’s evidence that he considered that the surgery went well and that it was unremarkable. Dr. Gibb’s evidence in this regard is supported by his operative note (that do not disclose any trauma or injury), by the nursing notes (indicating the timing of the operation and the use and number of sponges used during the operation) and by Dr. Gibb’s evidence concerning his ordinary and usual practice. Dr. Gibb’s evidence is also supported by the evidence of both Dr. Shahi and Dr. Smith who opined that the injury would have been a partial or delayed perforation as, if it had been a “through and through” injury, Mr. Forget would have become ill much sooner. I accept Dr. Gibb’s evidence that, while he did not record in his notes that he conducted a “careful inspection of the bowel” on December 14, 2010, that it was his ordinary and usual practice to do so and I accept his explanation that his December 22, 2010 operative note records that he conducted a “careful inspection of the bowel” because he provides more detail on surgeries that are corrective in nature. I accept Dr. Smith’s evidence that bowel injuries are a known risk during hernia surgeries and that the fact that a bowel injury occurred does not mean that there was a breach of the standard of care.

e. Primary Repair vs. Side-to-Side Anastomosis: With respect to the December 22, 2010 repair surgery, I accept Dr. Gibb’s evidence that the wound was a “pinhole” as recorded by his operative note. I further accept Dr. Gibb’s evidence that the bowel tissue appeared healthy, otherwise he would not have performed a primary repair. I accept Dr. Smith’s evidence that the type/method of repair utilized during surgery is a discretionary decision made by the surgeon and is based on the circumstances known to the surgeon at the time. I also accept Dr. Smith’s evidence that one of the many reasons that surgeons have extensive training is to enable them to make these types of decisions. I specifically reject Dr. Shahi’s evidence and opinion that there was no evidence of the size of the bowel injury and that the tissue was damaged at the date of the repair. I also reject Dr. Shahi’s opinion that side-to-side-anastomosis was required to meet the standard of care as this opinion was based on Dr. Shahi’s impermissible findings of fact and faulty, result-oriented reasoning. I accept and adopt Dr. Smith’s opinion that either side-to-side anastomosis or primary repair would have met the standard of care. I find that there was no breach of the standard of care by Dr. Gibb in performing a primary repair on Mr. Forget’s bowel on December 22, 2010.

f. Postoperative Care and Alleged Referral Delay: I accept Dr. Gibb’s evidence that he consulted with Dr. Mustard, of St. Michael’s Hospital, a renowned specialist in complicated hernia surgery, on December 28, 2010, and received confirmation that Dr. Gibb’s plan to treat Mr. Forget’s fistula with conservative treatment was correct. I accept Dr. Gibb’s evidence that fistulas and surgical wounds can take a long time to heal and that Mr. Forget’s progress was complicated by old surgical material re-infecting the wound. I accept Dr. Smith’s experiential and anecdotal evidence that surgeons are equipped and expected to provide care for wounds arising from their surgeries, that it is an ordinary and usual part of a surgeon’s practice, that wounds can take a long time to heal, that the timing of Dr. Gibb’s call to Dr. Mustard was appropriate as was the length of time for the referral to Dr. Okrainec. I specifically reject Dr. Shahi’s opinion that Dr. Gibb did not meet the standard of care in treating Mr. Forget’s wound infections or that he delayed referring Mr. Forget to a tertiary care centre on November 17, 2011. I find that Dr. Shahi’s evidence completely ignored Dr. Gibb’s evidence regarding his consultation with Dr. Mustard on December 28, 2010, and was otherwise unsubstantiated. I accept and adopt Dr. Smith’s opinion that Dr. Gibb met the standard of care in his provision of postoperative care and that the timing of his referral was appropriate and met the standard of care.

[326] For the reasons detailed above, I find that there was no breach of the standard of care by Dr. Gibb in his care and treatment of Mr. Forget.

d) Causation and Damages

[327] The parties have directed that I address the issue of causation and damages regardless of my findings concerning any breach of the standard of care.

[328] As noted, I find no breach of the standard of care and, as such, I find no liability on the part of Dr. Gibb in his care and treatment of Mr. Forget.

[329] However, if I was to find that liability was hypothetically established, the Plaintiffs must also prove causation.

i. Causation

[330] The Plaintiffs must prove, on a balance of probabilities, that “but for” Dr. Gibb’s negligence, Mr. Forget’s injuries would have been avoided. If the injury would have occurred irrespective of any negligence, the “but for” test is not met and the plaintiff’s action must fail: see Hutterli et al. v. Scott, 2021 ONSC 1426, at para. 121; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.

[331] Simply, the Plaintiffs must prove that the damages suffered as a result of Dr. Gibb’s negligence would not have occurred “but for” Dr. Gibb’s negligence. A loss of chance is not compensable in medical malpractice cases: see Jellifo v. Shams, 2022 ONSC 652, at paras. 180–81.

[332] In an action for delayed treatment, a plaintiff must establish, on a balance of probabilities, that the delay caused or contributed to the patient’s unfavourable outcome. A plaintiff who fails to prove that the patient would have been materially better off with earlier treatment will fail to establish their claim. Further, the law is clear that a loss of a chance of a favourable outcome will not satisfy the plaintiff’s evidentiary burden unless it surpasses the threshold of more likely than not. It is not enough to show that a doctor’s actions reduced the patient’s chance at recovery or a better outcome — a plaintiff must prove that adequate treatment would more likely have not avoided the eventual outcome: Cottrelle v. Gerrard (2003), 2003 50091 (ON CA), 67 O.R. (3d) 737 (C.A.), at para. 25; Knight v. Lawson, 2023 ONSC 570, at para. 247; Latin v. Hospital for Sick Children, 2007 34 (Ont. S.C.J.), at para. 131; Owala v. Makary, 2021 ONSC 7476 at paras. 285–86; and Salter v. Hirst, 2011 ONCA 609, 107 O.R. (3d) 236, at para. 14, leave to appeal refused, [2011] S.C.C.A. No. 503.

[333] The Plaintiffs failed to adduce any evidence to support their position that Dr. Gibb’s alleged breaches of the standard of care caused Mr. Forget’s poor health outcomes. As a result, the Plaintiffs have failed to meet their burden.

[334] There is simply no convincing evidence that “bowel prep”, “running the bowel”, the choice of repair (primary repair vs. side-to-side anastomosis), or a change in postoperative management would have affected Mr. Forget’s outcome. I reject Dr. Shahi’s evidence that a side-to-side anastomosis repair only has a 1 in 10,000 chance of resulting in a bowel leak while a primary repair will result in a bowel leak 50% of the time. Dr. Shahi acted as an advocate for Mr. Forget, his statement was completely unsubstantiated by medical evidence and his evidence on this issue was entirely rejected by Dr. Smith. Dr. Smith testified that both methods of repair have the same leak rate, were equally acceptable, and that both would meet the standard of care. I accept Dr. Smith’s evidence and hold that there was no admissible evidence to support the Plaintiffs’ position that Dr. Gibb’s alleged negligence caused Mr. Forget’s poor health outcomes.

[335] As for the Plaintiffs’ claim that Dr. Gibb caused Mr. Forget’s chronic small bowel obstructions, again, I find that there is no admissible evidence to support this claim.

[336] The evidence established that Mr. Forget suffered small bowel obstructions prior to the surgeries in December 2010 and that he did not suffer further small bowel obstructions until after Dr. Mikula’s abdominal wall reconstruction surgery in 2012.

[337] Furthermore, the Plaintiffs did not prove that, but for Dr. Gibb’s negligence, Mr. Forget would not have developed a further hernia which was ultimately repaired by Dr. Mikula in September 2012. There was no evidence presented that either surgery performed in December 2010 and/or Mr. Forget’s fistula and/or postoperative wound complications caused his 2012 hernia to develop. Therefore, I cannot find that Dr. Gibb’s actions resulted in Mr. Forget’s hernia that was repaired in September 2012 by Dr. Mikula.

[338] As there is no evidence that connects Mr. Forget’s ongoing health issues with the surgeries performed by Dr. Gibb in 2010, even if a breach of the standard of care were found, damages would be limited to harm and suffering damages from the date of the first surgery (December 14, 2010) to the date that Mr. Forget’s wound infection healed, which was on July 26, 2012 or, at the very latest, to the date of Dr. Mikula’s surgery on September 18, 2012.

[339] First, there is no evidence that establishes that Dr. Mikula’s 2012 surgery was necessitated by the surgeries in December 2010. Further, even if I were to accept Dr. Shahi’s evidence that any adhesions and scar tissue caused by Dr. Gibb’s surgeries caused or contributed to Mr. Forget’s chronic ongoing abdominal pain — the evidence established that, on September 18, 2012, Dr. Mikula took down “all adhesions” including adhesions connecting bowel to bowel. In other words, any adhesions that may have been attributed to Dr. Gibb’s December 2010 surgeries were no longer a factor in Mr. Forget’s recovery after September 2012.

[340] Dr. Mikula’s operation on Mr. Forget in September 2012 broke the causal connection between any alleged negligence on the part of Dr. Gibb and Mr. Forget’s health conditions post-September 2012. Dr. Mikula’s surgery was a break in the chain of causation. As such, even if the Plaintiffs had proven liability and causation, damages would be limited to the period between December 14, 2010 and September 18, 2012.

ii. Damages

[341] Damages are used to put a plaintiff in the position they would have been in absent the defendant’s negligence: see Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 32. The plaintiff bears the onus of proving that they suffered damages as a result of the defendant’s negligence and, if so, the quantum of those damages: see MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, at para. 13.

[342] In medical malpractice cases, where a patient suffers from a pre-existing medical condition that will inevitably result in the same injury as the one caused by the defendant’s wrongdoing, the defendant is not responsible for that injury. In Athey, at para. 35, the Supreme Court of Canada held that:

[t]he defendant is liable for the additional damage but not the pre-existing damage … Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award.

[343] Claims for loss of income are designed to compensate a plaintiff for a provable loss of capacity to earn income. Like other kinds of damages, the principle underlying a loss of income award is to put the plaintiff in the same position as they would have been but for the defendant’s negligence.

[344] In assessing damages for a past loss of income, the court must first determine the plaintiff’s “without injury” income and then subtract the income the plaintiff earned or could have earned. An injured plaintiff has a duty to mitigate their damages. The duty to mitigate includes a duty to retrain and to seek alternative employment, if possible. Where a plaintiff has failed to take reasonable steps to return to work and earn an income, such income is not recoverable: Janiak v. Ippolito, 1985 62 (SCC), [1985] 1 S.C.R. 146, at p. 166–67; Ksiazek v. Newport Leasing Ltd. (2006), 2006 36958 (ON SC), 43 C.C.L.I. (4th) 238, at paras. 101–02, aff’d 2010 ONCA 341, 84 C.C.L.I. (4th) 182.

[345] Pursuant to s. 61 of the FLA, spouses of an injured party can recover pecuniary losses and non-pecuniary damages for loss of guidance, care, and companionship. However, damages for grief, sorrow, or mental anguish suffered as a result of their spouse’s injury are not recoverable: see Mason v. Peters et al., 1982 1969 (ON CA), [1983] 39 O.R. (2d) 27 (C.A.), at p. 32, leave to appeal dismissed without reasons, [1982] S.C.C.A. No. 51; The Estate of Mary Fleury et al. v. Olayiwola A. Kassim, 2022 ONSC 2464, 82 C.C.L.T. (4th) 211, at para. 279.

iii. Determination of Damages

[346] Again, I note that there has been no finding of liability as against Dr. Gibb. I further note that, even if liability were proven, causation was not proven. For the purposes of the following damage calculations, I have assumed the following:

a. Dr. Gibb breached the standard of care during the December 14, 2010 surgery and the December 22, 2010 surgery, and the harm suffered by Mr. Forget continued to Dr. Mikula’s September 18, 2012 surgery. Any claim for damages following the September 18, 2012 surgery, in my view, would be barred due to the break in the chain of causation.

(a) General Damages

[347] The Supreme Court of Canada’s trilogy of Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287; Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229; and Thornton v. School District No. 57 (Prince George) et al., 1978 12 (SCC), [1978] 2 S.C.R. 267, established that general damages are capped at $100,000, subject to adjustments for inflation and are awarded based on a consideration of the totality of the circumstances. Subject to any offers to settle exchanged between the parties, as Dr. Gibb was the successful party at trial, he is entitled to his costs.

[348] The Plaintiffs submit that an appropriate general damages award is $175,000 and Dr. Gibb submits that $75,000 is appropriate.

[349] Assuming that Dr. Gibb was negligent and that causation was proven such that the injuries suffered existed from December 14, 2010 to July 2012, or at the latest, September 18, 2012, I find an appropriate award on accounting of general damages is $130,000.

[350] This award takes into account the range of damages noted by the parties, the caselaw relied upon, and, specifically, the pain encountered by Mr. Forget during and following his two surgeries performed by Dr. Gibb in December 2010, the requirement to remain in hospital for three weeks following the December 22, 2010 surgery, the pain and suffering and ongoing indignities experienced throughout, his fistula and wound treatment and the pain and suffering connected thereto, including the various debridement surgeries.

(b) Special Damages

[351] The Plaintiffs, by Schedule 1 of their submissions, seek repayment of special damages relating to benefits submitted to Co-operators totaling $5,599.30. Repayment is sought for the period between December 15, 2010 and May 13, 2024. I have reviewed the repayment requests and would award special damages relating to the benefits restricted from December 14, 2010 to September 18, 2012, for a total award of $474.43.

[352] The Plaintiffs, by Schedule 2 of their submissions, seek repayment of bathroom renovations, deck repair, and other household items and submitted a chart covering the period. The only items which fit within the time period (December 14, 2010 to September 18, 2012) relate to bathroom renovations, fireplace cleaning, and plumbing. In my view, none of these items are connected to the surgeries performed by Dr. Gibb and I do not award any amount for the items in Schedule 2.

[353] The Ontario Health Insurance Plan subrogated claim totals $82,138.56 for the period between December 21, 2010 and April 19, 2021. I would restrict repayment to the entries from December 14, 2010 to September 17, 2012 (not including Dr. Mikula’s surgery), for a total award of $49,080.24.

(c) Loss of Income

[354] The Plaintiffs seek loss of income to age 65 and seek past and future loss of income totalling either $1,581,511 (based on the average of Mr. Forget’s 2012 and 2013 income) or $1,650,144 (based on Mr. Forget’s 2013 income).

[355] I have determined that, even if there had been a breach of the standard of care, the latest date that damages could be attributed to Dr. Gibb would be September 18, 2012.

[356] As there is no past or future loss of income for this period, the total award is $0.

(d) Future Care Costs

[357] I have determined that, even if there had been a breach of the standard of care, the latest date for which damages could be attributed to Dr. Gibb would be September 18, 2012.

[358] As such the total award for future care costs is $0.

(e) Loss of Care, Guidance, and Companionship

[359] Ms. Welton sought damages for loss of care, guidance, and companionship. The evidence established that Ms. Welton and Mr. Forget shared a close and loving relationship, that Ms. Welton attended upon and cared for Mr. Forget following the 2010 Gibb surgeries and aftercare. In the circumstances, if liability and causation were established, I would award the sum of $30,000 to Ms. Welton for her FLA claim.

COSTS

[360] Subject to any offers to settle exchanged between the parties, as Dr. Gibb was the successful party at trial, he is entitled to his costs.

[361] In the event the parties are unable to resolve the issue of costs, the Defendant shall serve and file his costs submissions (limited to 5 pages with a bill of costs), costs outline and any applicable offer to settle attached thereto, within 45 days of the date of this Judgment.

[362] The Plaintiffs shall serve and file responding costs submissions (limited to 5 pages with a bill of costs), costs outline, and any applicable offer to settle attached thereto, within 60 days of this Judgment.

[363] Reply, if any, shall be limited to 1 page, to be served and filed within 65 days of this Judgment.

The Honourable Justice S.J. Woodley

Released: April 14, 2026

[^1]: For Dr. Shahi to have relied on this information as a finding of fact, he would have had to have preferred the evidence of Mr. Forget over the evidence of Dr. Gibb.

[^2]: To make this finding, Dr. Shahi would have needed to ignore the operative note and discovery evidence of Dr. Gibb.