INTRODUCTION
On March 29, 2022, the Ontario Court of Appeal released the decision of Farej v Fellows. In addition to reiterating the legal principles for assessing the adequacy of trial decisions, this decision is important for its insights on causation in the context of tortious and innocent causes of an injury.
This was an appeal of a decision to dismiss the plaintiffs’ claims for injuries and damages following birth by forceps. The trial was factually complex. Justices Doherty, Miller and Sossin allowed the appeal on the basis that the trial judge’s reasons were inadequate. A new trial was ordered on all issues.
FACTS
Sabrin Farej was born on June 3, 2007 in London, Ontario. The defendant obstetrician, Dr. Fellows, arrived in the delivery room at 11:01 PM and recognized Sabrin was receiving inadequate oxygen. Dr. Fellows’ differential diagnosis included a uterine rupture and a placental abruption. Both conditions were serious and required immediately intervention but, importantly, neither condition was the result of negligence. Dr. Fellows elected to proceed with a vaginal birth, rather than an emergency c-section.
Following two failed attempts at forceps-assisted vaginal delivery, Sabrin was born at 11:27 PM; profoundly disabled and suffering from a severe brain injury and damage to her vital organs. It was not refuted that Sabrin’s injures were the result of near total asphyxia during labour.
The plaintiffs’ alleged, in part, that Dr. Fellows was negligent for not proceeding with an emergency c-section. It was also alleged that Dr. Fellows was negligent for releasing Sabrin’s head during his second forceps attempt. The plaintiffs claimed that these alleged breaches of the standard of care delayed Sabrin’s birth and caused, or materially contributed to, her injuries.
The trial judge dismissed the action on the basis that the plaintiffs failed to establish a: (1) breach of the standard of care, and (2) causal connection between the defendant’s actions and Sabrin’s injuries. The trial judge also rejected the plaintiffs’ informed consent argument.
The plaintiffs appealed the decision on the basis that the trial judge’s reasons were legally inadequate because they did not permit meaningful appellate review. Although, they did accept that, on the evidence available at trial, the trial judge could have dismissed the action.
LEGAL PRINCIPLES
Justice Doherty, writing for the court, outlined the legal principles that govern whether a decision is legally adequate. He explained that adequate reasons would allow an appeal court “to engage in a meaningful review of the substantive merits of the decision under appeal” and that if the “reasons do not reveal the factual or legal basis for the trial judge’s conclusions, the appellants are effectively denied the exercise of their statutory right of appeal.” The adequacy of the reasons must be addressed both functionally (whether they permit meaningful appellate review) and contextually (in the context of the issues raised at trial, the evidence adduced, and the arguments made by the parties before the trial judge).
Causation:
In his reasons, Justice Doherty found that the trial judge correctly identified the causation question to be “[i]f Dr. Fellows was negligent, did his acts or omissions cause, or materially contribute to the injuries suffered by Sabrin Farej?” He further found that the “trial judge correctly identified the “but-for” test as the applicable test to determine causation.”
Justice Doherty was critical of the trial judge’s reasons: “Unfortunately, the reasons do not tell us how the trial judge arrived at her conclusion, or whether in doing so she addressed not only causation in the narrowest sense, but also causation by way of a material contribution to the injuries actually suffered by Sabrin.” (Donleavy v. Ultramar Ltd., 2019 ONCA 687) As stated previously, this case involved a tortious cause (action or inaction of the defendant) and an innocent cause (placental abruption or uterine rupture) of Sabrin’s injuries. This passage by Justice Doherty, as well as his reference to Dunleavy, is recognition that the phrase “material contribution” is in relation to the injuries, not the risk of injury. This recognizes that despite there being multiple causes of Sabrin’s injuries, this was not a situation where it was impossible to prove causation via the “but-for” test – the defendant’s negligence needs only be a “but-for” cause that caused or contributed to Sabrin’s injury, in a not insubstantial or immaterial way.
Justice Doherty explained that to decide whether the defendant was negligent, the trial judge was required to make three factual findings:
- Could Sabrin have been delivered earlier had an emergency c-section been pursued?
- By proceeding with a vaginal delivery rather than a c-section, what delay occurred?
- Did this delay, cause or materially contribute to Sabrin’s injuries?
Justice Doherty held that none of the factual findings were evident in her reasons. It was therefore not open to the trial judge to make a conclusion regarding how long Sabrin was asphyxiated, solely as a consequence of a failure to proceed with an emergency c-section. Therefore, “there could be no meaningful inquiry into whether the delay, if any, caused or materially contributed to Sabrin’s injuries.”
Standard of Care:
Justice Doherty found the trial judge’s reasons to be adequate with respect to whether Dr. Fellows was negligent for: (1) not immediately proceeding with an emergency c-section, and (2) not attempting a c-section after his first failed attempt with forceps.
However, the trial judge’s reasons were silent on whether Dr. Fellows was negligent for releasing Sabrin on his second forceps attempt. Based on the reasons, the court could not determine whether the trial judge considered this allegation of negligence, or whether this caused or materially contributed to Sabrin’s injuries. For that reason, they held the reasons were inadequate.
Informed Consent:
With respect to the issue of informed consent, Justice Doherty found the trial judge’s reasons were adequate. They sufficiently explained why she rejected the plaintiff’s allegations.
