Woods v. Jackiewicz, 2020 ONCA 458 (CanLII)

Full Decision

The Ontario Court of Appeal recently heard the appeal below, following a jury verdict in favour of the plaintiffs.

The respondent, Ms. Booth, was 27 weeks pregnant with twins. She saw the appellant Dr. Jackiewicz for an unscheduled appointment on July 5th, 1991. She was complaining of severe abdominal pain and excessive weight gain. The appellant sent her home to rest. On July 7th Ms. Booth attended Niagara Hospital and was immediately transferred to McMaster Hospital by ambulance, she was already 2-3 cm dilated. The twins were delivered by emergency C-section. As a result of the birth, one of the twins sustained brain damage due to Twin-to-Twin Transfusion Syndrome (“TTTS” – where one twin gets too much fluid and the other gets too little).

The respondents’ position at trial was that had Ms. Booth been seen by a specialist on July 5th at a tertiary care center, with expertise in high-risk pregnancies, then the TTTS would have been detected and treated with amnioreduction.

The respondents’ experts (Dr. Jon Barrett and Dr. Dan Farine) testified that amnioreduction was the only treatment available for TTTS in 1991, it was a straightforward procedure, and widely available; if McMaster Hospital couldn’t do it then the patient could have been sent to Toronto for the procedure. Dr. Barrett testified that had amnioreduction been preformed on July 5th the pregnancy would have continued five more weeks, with a 40% chance of the TTTS resolving completely. It was his opinion that the brain injury would have been avoided if the pregnancy continued five weeks longer.

The appellant’s expert (Dr. Mundle) testified that it was his “feeling” that McMaster Hospital did not offer amnioreduction for TTTS in 1991.

The jury found that Dr. Jackiewicz breached the standard of care when he failed to send Ms. Booth to a perinatologist on July 5th. They also determined that the breach of the standard of care caused the brain damage sustained by one of the twins.

The appellant physician did not challenge the jury finding on standard of care but submitted that the jury verdict on causation was unreasonable. He suggested there was a gap in the evidence on causation and that the jury ought to have been instructed that it could draw an adverse inference on this point. He submitted that, although the trial judge’s instruction on causation was legally correct, the trial judge erred in failing to further explain that a mere loss of chance to avoid an injury, which does not satisfy the “but for” test, does not establish causation.

The Court of Appeal answered the following questions:

  1. Was the jury’s verdict unreasonable because there was no evidentiary basis to support the jury’s verdict on causation?
  2. Did the trial judge’s charge to the jury contain legal errors on the issue of causation that resulted in a substantial miscarriage of justice?
    • Did the trial judge err by refusing to instruct the jury that they were permitted to draw an adverse inference from the respondents’ failure to call any witness from McMaster Hospital to give evidence on the availability of amnioreduction in 1991?
    • Did the charge give disproportionate weight to the respondents’ experts or mischaracterize the expert evidence?
    • Did the trial judge err by refusing to instruct the jury that a mere loss of chance is not compensable at law?


Question 1: No. The test for appellate interference in a jury verdict is high. It was open on the evidence for jury to conclude that had Ms. Booth been referred to McMaster on July 5th, an amnioreduction would have been performed and effectively treated the TTTS.

Question 2: No.

  • No. This question dealt with the ‘critical gap’ in the evidence, as suggested by the appellant. The determination on this issue is important as the appellant suggested that the ‘gap’ in the evidence (whether McMaster actually performed amnioreduction in 1991) should lead to an adverse inference—in other words, that a failure to lead this evidence meant that the jury should assume the procedure was not performed at McMaster. The Court of Appeal determined that the trial judge did not error in failing to instruct the jury on this point. Importantly, the Court pointed out “Either party could have called that evidence if they thought it was important: see Lambert v. Quinn, 1994 CanLii 978 (ONCA)”.

This determination could be very useful in future cases where there is a perceived ‘missing’ piece of evidence. If important, either party can and in fact, should lead evidence on the point. While there is no burden of proof on the defendant, there is a “tactical burden” to put the best case forward, particularly on a key element of the defence. As per Lambert, an adverse inference will only be drawn when one party alone could bring the witness or evidence before the court.

  • No. When read in its full context, the charge was fair and would not have misled the jury. Simply because the number of words used to describe one party’s case was greater does not mean the charge was disproportionate.
  • No. None of the parties suggested that a loss of chance to avoid injury was sufficient to establish causation therefore there was no error by the trial judge in failing to discuss loss of chance in his charge.
Written by

Jan received her Bachelor of Arts (Honors) in Development Studies from Huron University College at the University of Western Ontario in 2005 and her J.D. from Western's Law School in 2009. While attending law school, Jan volunteered with the school's Community Legal Clinic and Pro-Bono Students Canada. She also participated in an international exchange program at ESADE in Barcelona where she studied both International and European Union law.

Before joining Gluckstein Personal Injury Lawyers, Jan completed her articles at a prominent personal injury firm. She was called to the bar in June 2010.

Jan's personal injury practice is dedicated to medical negligence.

When not practicing law, Jan enjoys travelling, playing soccer and volleyball.