In a 5-4 decision, the Supreme Court of Canada held that a trial judge is not required by law to draw an adverse inference against physicians whose negligence makes it impossible to prove causation and where the plaintiff adduces at least some evidence of causation. Trial judges are permitted to draw such inferences, but are not required to do so.
Released November 10, 2016 | Full Decision [CanLII]
This Québec action arose out of the death of Marc Émond. Mr. Émond died from lung cancer in June 2008 at age 47. In November 2005 at the request of his family doctor, Dr. Benhaim, Mr. Émond underwent a chest x-ray, which revealed a 1.5 to 2 cm ill-defined opacity in his right lung. The radiologist, Dr. O’Donovan, recommended that Dr. Benhaim consult previous chest x-rays for comparison and recommended follow-up x-ray and CT scan. Dr. Benhaim did not consult previous x-rays, which were, in fact, available, and simply ordered a follow-up x-ray two months later, which did not reveal any changes. It was not until December 2006 when Dr. Benhaim ordered a further chest x-ray that it was discovered that the lesion in Mr. Émond’s lung had increased to approximately 2.5 cm.
The plaintiff argued that Dr. Benhaim and Dr. O’Donovan should have advised Mr. Émond in November 2005 or January 2006 that the opacity on the x-ray of the right lung could be cancerous and should have conducted further tests to determine whether that was the case. The delay in the discovery of the cancer caused Mr. Émond’s death. The defence argued that Mr. Émond’s cancer was already advanced in November 2005 and his chances of survival were low. Therefore, the cancer would likely have taken his life even if he had been properly diagnosed at that time.
The trial judge concluded that both Dr. Benhaim and Dr. O’Donovan were negligent. However, she found that the evidence did not establish that their negligence caused Mr. Émond’s death.
The Québec Court of Appeal concluded that the defendants’ negligence undermined the plaintiff’s ability to prove causation. The failure to investigate the opacity on the first chest x-ray made it impossible for the plaintiff to show scientifically direct evidence of the stage of cancer. This, in turn, made it impossible to establish that the delay in treatment caused Mr. Émond’s death. In addition, the plaintiff led some evidence that the cancer was at an early stage and could have been cured with prompt diagnosis and treatment. The Court of Appeal concluded that the trial judge erred in law in failing to apply an adverse inference of causation.
At the Supreme Court of Canada, both the majority and the dissent agreed that a trial judge need not draw an adverse inference of causation where a defendant’s negligence has made it impossible for the plaintiff to prove causation and where the plaintiff has adduced some evidence that supports an inference of causation.
The majority concluded that the trial judge had not made a palpable and overriding error in her appreciation of the facts and was permitted to exercise the discretion to decline to make an inference of causation. While it was open to the trial judge to have found in favour of the plaintiff, her exercise of discretion did not constitute a palpable and overriding error. In the result, the Court allowed the appeal and reinstated the decision of the trial judge.
Read the Full Decision on CanLII
