If … (Ontario) – Presumption of regularity

If a trial judge

1.  quotes a  summary of the  law, as set out by the SCC,  that’s more than 5 years out of date and is no longer correct, according to the SCC – ignoring whether that summary is accurate in the first place – probably because he or she has taken it from a now “overtaken” appellate decision of the judge’s appellate court;

2.  even though the judge has cited, in the immediately preceding paragraph, the new, about-one-year old, SCC authority on that point, albeit in a quotation taken from a more recent SCC case;

3.  where the trial judge could not have quoted the first summary mentioned if he or she had read and understood the new SCC authority, at least because that case explicitly rejects the older explanation provides an new explanation;

4.  and one cannot tell from the reasons for judgment what law the trial judge applied;

5.  should we apply, a particular case, the SCC mandated presumption that “Trial judges are presumed to know the law with which they work day in and day out”. See, for example, R. v. Teskey,  2007 SCC 25 , [2007] 2 SCR 267, at para. 33: “As previously noted, the presumption that judges will carry out their sworn duties also includes a presumption of legal knowledge.  McLachlin J. confirmed in R. v. Burns, [1994] 1 S.C.R. 656, at p. 664, [1994 CanLII 127], that “Trial judges are presumed to know the law with which they work day in and day out”;

6.  if a review of the transcript is required for the appellate court to decide that the decision is correct on the evidence, given that appeals are from the evidence and the judgment, not just the reasons –  should the appellant have to bear the cost of the transcript?

Spirito v. Trillium Health Centre, 2013 ONSC 5138 (CanLII) is the reasons for judgment in medical malpractice action that took 2 weeks to try. The action was dismissed. The trial judge held that there was no negligence – no breach of the standard – and even if there had been a breach that the plaintiff’s had failed to establish a causal connection between the conduct that would have been the breach and the plaintiff’s death.

On its face, the trial judge’s statement of the law applicable to the standard of care / breach analysis seems correct.

The next 3 paragraphs set out the trial judge’s statement of the law governing proof of causation.

[184]       The law is clear. In medical malpractice actions the plaintiff must prove, on a balance of probabilities: a) a breach of the standard of care; and b) that the breach is causally connected to the injury in question.

[185]       The Supreme Court of Canada in Ediger v. Johnston, 2013 SCC 18 (CanLII),  [2013] S.C.J. No. 18, at para 28 stated:

That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred: Clements, at para 8. “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury—in other words that the injury would not have occurred without the defendant’s negligence.” noting Clements v. Clements, 2012 SCC 32 (CanLII), [2012] 2 S.C.R. 181, at para. 8.

 [186]       In exceptional circumstances, the court may depart from the “but for” test and apply a “material contribution” test. First, it must be impossible for the plaintiff to prove the defendant’s negligence caused the plaintiff’s injury using the “but for” test. This must be due to factors outside the plaintiff’s control, such as the limit of scientific knowledge. Second, the proven breach of duty of care must expose the plaintiff to unreasonable risk of injury and the plaintiff must have incurred that form of injury: see Resurface Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 25.

The trial judge’s conclusions on the causation issue are summarized in this paragraph:

[187]       I have found that the defendants did not breach their respective duties of care. Had I found a breach of duty of care, I would have dismissed the plaintiffs’ action, as there is no causal connection between any of the alleged breaches of the standard of care and Emilio’s death.

The trial judge later repeated the “no causal connection statement”.

Paragraph 186 might have been an accurate summary of the meaning of material contribution and requirements of material contribution before Clements – that’s doubtful, but it’s an accurate enough statement of what the ONCA seems to thought Resurfice meant –  however it hasn’t been since Clements.

Ediger, while it cites Clements in the paragraph quoted by the trial judge, not set out Clements new explanation of the meaning and requirements of material contribution.  Ediger does not discuss the meaning of material contribution.

We might ask, rhetorically, why it is we see para. 186  of the reasons, as it is, even though the trial judge mentioned Clements.

As you read through the reasons (if you do), you’ll not find any explicit indication of what test for causation the judge actually applied: but-for or material contribution.  Should we presume, applying the presumption of regularity that, because the trial judge did not say there were “exceptional circumstances”, the trial judge applied the but-for test so that it doesn’t matter that the judge misstated an irrelevant portion of the law?

If you read the reasons, you’ll see the trial judge preferred the defence evidence and, on that basis, rejected the plaintiff’s theory of causation. This is explicit in,a few paras. which I’ll  and similar statements in other paragraphs.

[188]       The plaintiffs’ theory of causation is that Emilio experienced a massive aspiration and died from the complications arising therefrom, and that the placement of an NG tube following Emilio return to Trillium on November 8, 2003 would have prevented the aspiration, and his death. However, the evidence does not support this theory.

[203]       Dr. Howarth disagreed with the theory that the pneumonia was caused by aspiration. He stated that it was not scientifically possible based upon Emilio’s clinical progression and microscopic findings: “That’s not possible. It’s not possible to have bacteria set up foci, in small little areas and proliferate within a two hour period to fill the lungs. That’s physically not possible, they can’t proliferate that rapidly.”

[204]       I accept the uncontradicted evidence of Dr. Howarth; Emilio died from bilateral lobar pneumonia caused by an air-borne bacteria.

[208]    The plaintiffs have not proven on a balance of probabilities that there is a causal connection between these allegations and the cause of death.

I suppose we could assume that by no causal connection on the balance of probabilities the trial judge meant that the plaintiff had not established a but-for connection as explained in the quotation from Ediger; that is, that, on the balance of probability, the negligence was necessary for the occurrence of the consequence. That is, after all, what the presumption of regularity requires us to do if it applies.

It’s also the case that the defence evidence, which the trial judge accepted, does more than merely assert the evidence wasn’t enough for medical probability. It asserts there was no connection, at least according to the trial judge.

By the way, if we are to presume that the trial judge applied the but-for test and applied it properly, then we have to presume the trial judge applied it robustly and in a common sense manner (whatever those two descriptions mean.)


  1. David Cheifetz


    Let’s wrap this up this way. On the evidence recounted by the trial judge, there’s no difficult issue of causation law involved in the causation question. The trial judge could have easily quoted the law accurately. Then the question would have been whether the law was applied properly. The substance of the causation question summarized, would have been, on that evidence, something like: if the doctors were negligent, then, applying the but-for test, was that negligence part of the cause of the death. To make that decision, the judge would have decided what evidence to accept, considered its significance, then decided what the more likely or not conclusion was. It’s a case about the meaning of the evidence, nothing more. Then, unless there’s a palpable and overriding error, the causation decision is untouchable absent palpable and overriding error (Housen).

    Is that what he did?

    It may be that the trial judge’s failure to state the law accurate doesn’t matter. It won’t if the evidence is as recounted in the reasons, as there’s nothing else in the transcript that allows an appeal court to conclude there was palpable and overriding error.

    But, in this case, we ought not to be having that sort of discussion about this sort of case.


  2. David Cheifetz

    Yes, but as you’ve said not the opinion portion when the document goes in as a business record. That’s why Ares v Venner was needed.

    Look at paras. 23-34. The plaintiff’s asked for but didn’t get leave to call Dr M as an expert witness but only as a fact witness and to testify regarding treatment opinions. [25] is, in part: “[25] I ordered that Dr. Oh and Dr. Manowski could be fact witnesses and that they could testify as to treatment opinions that they formed in 2003. I did not permit the filing of their medical reports, nor could they provide expert evidence, other than as treating physicians with respect to treatment opinions that they formed in 2003.”

    Mankowski, though, didn’t treat the deceased. He was ” the pathologist who performed Emilio’s autopsy.” [24]

    If the post mortem went in as a business record, did the trial judge use the report for opinion evidence or just for proof of facts that Dr. M was under a duty to record in the ordinary course?

    For those reading along, it’s para: “[194] Dr. Manowski undertook the post-mortem. His report was filed as an exhibit. The cause of death is listed as “Bilateral lobar pneumonia and paralytic ileus”. His report is based upon a review of Emilio’s history, the two hospital charts, as well as a gross examination and microscopic examination of lung tissues. Although the plaintiffs placed Dr. Manowski under summons, they did not call him as a witness. I conclude that his testimony would have confirmed the findings in his report.”

    What did the trial judge mean by “the findings in his report”. With the report as a business It can’t be the cause of death “Bilateral lobar pneumonia and paralytic ileus”. It can only be, for example, what Dr M saw and recorded when he examined the tissues which would allow a competent export to form a conclusion (opinion) as to the cause. So we have to conclude that there was evidence that allowed the judge to conclude the findings in the report were not consistent with the plaintiff’s theory and that’s all that the trial judge meant (assuming regularity.) But is it?

    But if the trial judge used the conclusion in Dr M’s report – do we assume he referred to is just as an aside – against the plaintiff then that’s an error of law.

  3. Brian Babcock

    Business records ARE admitted for proof of their contents- though it is a rebuttable presumption, and not extended to opinions. Sopinka and Lederman also cite Ares v Venner as allowing opinion evidence at common law. The trial judge in this case was also having great fun with the “treating opinions are not really opinions” exception.

  4. Brian Babcock

    Hard cases make bad law, or in this case, no law.

    I suspect that Plaintiff counsel knew he had weaknesses in his expert evidence, but was too far into the file to quit, and had a sympathetic widow who stood to win big if the crap shoot turned out okay.

    Again reading between the lines, I also infer that the lawyer was primarily targeting the surgical decisions- the Plaintiff expert on that issue seems pretty good. The judge’s findings at para 139, to my mind, are the most vital in the reasons, and not particularly clear to even my experienced eye.

    If the surgical expert and surgeon’s liability was where counsel saw the strength of the case,it was a valid risk to go with the weak gp/coroner secondary expert. My guess based on doing just enough malpractice cases not to take on any more is that by the time the significance of Dr. Howarth’s evidence became clear, it was too late to do better. Otherwise, counsel was running this trial on the fumes of courage. If the judge had empathized a bit more; had “bought” the surgical expert, if Dr. Howarth had folded on cross instead of the coroner being the one to fold, it might have turned out better for the Plaintiff.

    The use of the word “speculate” in para 192 is a clue to my eye that the judge wasn’t empathetic, and just was not buying the Plaintiff’s theory- it is charged language, as opposed to neutral terms like “testified” or “was of the opinion that”. we are left to wonder whether the coroner adopted the “speculation” description, or if the judge collapse much analysis into one word.

    You raise a good question about the “post mortem report”. Was it on consent (because Plaintiff counsel went into the trial expecting to get leave to call Dr. M)? Or a business record? Or even a public document? It is not explained. Certainly a good teaching pint to raise for any young advocates reading this.

    • David Cheifetz

      The plaintiffs’ counsel is in too deep to back out is one explanation, provided he had reason to believe the CMPA won’t chase the widow for costs. Then it’s his time and money. The coroner is a gp. Gilles had to know he’d defer to the pathologist. The post mortem can’t have got in on consent as a Rules expert report which could be filed as the physicians evidence without calling him, if anybody knew what they were doing. The CMPA lawyers wouldn’t allow that mistake to be made given Dr. Howarth’s opinion. I expect it was part of the hospital file which was filed as a business record. But that doesn’t mean the opinion went in for proof of its content. So there’s yet another error by the judge. [139] is standard of care, not causation. That’s a heck of a role of the dice if Gilles thought he’d win on breach and then the judge would fudge causation feeling sympathetic. That’s an invitation for an appeal.

  5. David Cheifetz


    “Though academic excellence would suggest that the judge recite the correct magic words as (s)he waves the magic wands, this finding of fact seems to accomplish the same purpose.”

    Only if the evidence supports those findings. Does it?

    This is a 13 day trial. Are we supposed to assume that plaintiff’s counsel took the case to trial hoping to get the causation evidence they needed on cross because their expert would defer to the defence expert? That they didn’t know that in advance? They put up a gp coroner against a pathologist no knowing the gp would cave? Look at paras [190-93].

    Do we understand the defence evidence recounted in paras. 189-203 as meaning “no valid basis whatsoever” and that’s what the trial judge accepted?

    Bear in mind that [188] implies there was some evidence to support the plaintiff’s theory but the trial judge didn’t accept it.

    How did the “post mortem” report of Dr M referred to in [191] get in as as proof of its contents. It wasn’t a legal medical report. It also destroys the plaintiff’s case.

    Look at the extent of the causal connection as apparently explained by the plaintiff’s only causation expert – the gp / coroner [191-192].

    [192] is the summary: “He speculated that three factors may have contributed to the development of pneumonia, but he could not advise whether they were actually involved or when. He agreed that there was no direct link between them.”

    Speculation isn’t enough, of course. But What are we supposed to understand “no direct link” to mean? That there was an indirect link?

    We don’t know, from the reasons, what test for causation plaintiff’s counsel relied on.

    Maybe they argued material contribution in the alternative.


  6. David Cheifetz

    The question is what do 203’s “not scientifically possible” and “not physically possible” actually mean, since we don’t know what the judge understand is required for a balance of probability decision in a medical malpractice case, nor do the reasons recite the evidence that led to those conclusions.

    Why do you assume that those quoted conclusions are based on Snell’s explanation of what’s required for a balance of probabilty conclusion as restated in Athey and more recently Clements?

    Perhaps Dr. H said there was no evidence whatsoever. Or perhaps he said that the evidence wasn’t enough for a for valid medical conclusion. Do you see a basis for deciding which of the two explanations underlying the conclusions?

    Did the trial judge require “scientific precision”? Scientific “certainty”?

    Again, the trial judge didn’t cite the some magic words from Snell or Athey nor paraphrase them. Do you see anything that amounts to a statement that “causation need not be determined by scientific precision” (Athey, para. 16).

    Or even a paraphrase of Clements [49] “the cases consistently hold that scientific precision is not necessary to a conclusion that “but for” causation is established on a balance of probabilities. It follows that the trial judge erred in insisting on scientific precision in the evidence as a condition of finding “but for” causation” ?

    He didn’t cite Athey or Snell, but Clements is mentioned in the quotation from Ediger, so it would have been very easy to refer to [49].

    That makes us have to guess at what he meant. If we assume the trial judge had in mind the Snell / Athey / Clements reminder that the balance of probability doesn’t mean the higher level of certainty required before a physican will say probable, then [203] and [204] are enough so long as the evidence supports the finding.

    But, without more than what is in the reasons, and without knowing what the judge understood the law to be, we have to assume the findings of fact are based on the correct application of the correct law. What’s the basis for that assumption, here?

  7. Brian Babcock

    Doesn’t paragraph 204 functionally solve the issue? By clearly finding a cause unrelated to the negligence, the trial judge impliedly excludes all other causes.The negligence neither material contributed to the loss; exposed the deceased to tan increased risk; nor was it a but-for cause. Thus, on any standard, the negligence is not causally connected to the damages, and thus there is no liability.

    Though academic excellence would suggest that the judge recite the correct magic words as (s)he waves the magic wands, this finding of fact seems to accomplish the same purpose.

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