Full Decision (Ontario Court of Appeal)
Full Decision (Supreme Court of Canada)
The Facts & Trial Decision
In February of 2010 the Plaintiff, Karen Armstrong, underwent a total proctocolectomy performed by Dr. Colin Ward. Following the procedure, she was in significant pain. She was diagnosed with a ureteric injury and her kidney was ultimately removed. The matter went to trial in January 2018.The central issue at trial was how the injury had occurred. The plaintiff’s theory was that Dr. Ward operated the LigaSure cautery device too close to the ureter, causing the damage. Dr. Ward argued that he had stayed five to 15 centimeters away from the ureter and the damage was caused by excessive scar tissue, which developed post surgery. This was not a case about surgical misadventure where a surgeon might be unable to stay away from the ureter. It was described at trial as “surgery 101”.
On April 16, 2018, Justice Mulligan released his decision. He found that Dr. Ward had failed to meet the requisite standard of care in performing the surgery. The standard of care required that the surgeon identify, protect, and stay more than 2mm away from the ureter. Justice Mulligan held that Dr. Ward “came within one or two millimeters of the ureter, causing damage leading to scar tissue and eventual ureter blockage”.
Ontario Court of Appeal
The decision of Justice Mulligan was appealed by Dr. Ward and on December 6, 2019 the Ontario Court of Appeal released their decision in this matter. The three-member panel was split two to one. The Majority held that the “trial judge erred in law in identifying and applying the standard of care. Indeed, on the findings of fact he did make, had the trial judge applied the law correctly, he would have found that Dr. Ward is not liable.” This decision flowed from the fact that Justice Mulligan had found that Dr. Ward had taken some steps required by the standard of care. Justice Katherine van Rensburg dissented, details of her reasons are included below.
Appeal to the Supreme Court
The Plaintiff appealed the majority decision of the Ontario Court of Appeal and was granted leave in May 2020. The case was argued before the Supreme Court of Canada (SCC) on January 18, 2021. The SCC released their decision from the bench on the day of argument, siding with the plaintiff and adopting the dissenting reasons of Justice van Rensburg.
Importantly, Justice van Rensburg’s decision analyzed the events “in the context of the live issues at trial and the positions of the parties before the trial judge”. In this case, the central issue before the trial judge dealt with causation (how did the ureter become injured?).
Of the many significant findings of Justice van Rensburg, two are most notable. First, courts have grappled with the order of analysis in medical negligence cases – must standard of care be analyzed before causation? Second, once the plaintiff has provided some evidence establishing a case against the defendant, what obligation do the parties have to refute or present other potential causes of harm?
On the first issue, Dr. Ward argued that the trial judge erred by conducting a causation analysis in order to determine if a breach of the standard of care occurred. This caused him to work backwards from the injury. On this issue, Justice van Rensburg sided with the majority – generally a trier of fact will consider causation only after finding a breach of the standard of care; however, she also held that there are times when ‘what happened’ (the factual cause of the injury) must be determined in order to assess whether the standard of care has in-fact been met. The within case was one such matter.
On the second issue, the decision of the majority was concerning. The majority wrote “A trial judge who is prepared to proceed on the basis that only negligence could cause the relevant injury, is obliged to consider and rule out non-negligent causes. … [t]he burden is not on the defendant to raise potential non-negligent causes with evidence, nor is it improper speculation for a trial judge to consider potential non-negligent causes …” (para. 56). Justice van Rensburg disagreed with the majority on this point. She held “a trial judge is not obliged to consider potential non-negligent causes where there is no evidentiary foundation to do so” (para. 134).
Her determination reinforces prior jurisprudence that held neither the trier of fact nor the plaintiff is required to disprove “every possible theory that might be put forward by a defendant, let alone theories that are not raised at trial, but only on appeal” (para. 135). If the defendant wants to point to a cause of harm other than that contended by the plaintiff’s experts and the evidence, they had better call some evidence in support.
For Justice van Rensburg and the SCC, the trial judge was correct in holding that the plaintiff’s injury occurred due to Ward’s negligent use of the LigaSure during the surgery. The SCC’s endorsement of Justice van Rensburg’s analysis is essential guidance for triers of fact in these matters. Causation can, in appropriate cases, be utilized to determine whether the standard of care has been breached. It is also a critical restatement of the law regarding the burden of proof; specifically, the plaintiff and the trier of fact are not obligated to consider and rule out alternative causes of injury not in evidence or proffered by the defendant.
