I have discussed the case here and here. The SCC did not, as is its current practice, provide reasons for granting leave. However, we can glean what the parties think the issues are, or are not, from these excerpts from the Applicants’ and Respondents’ factums.
From Applicants’ Factum
Part I Concise Overview of the Position and Fact
1. The The Supreme Court of Canada has provided clear guidance in a number of cases of medical malpractice over the years as to how a trial judge can make use of the traditional rules of evidence and causation to find in favour of a deserving plaintiff when he or she considers it appropriate to do so. These same cases and others have also provided clear guidelines for appellate intervention, protecting factual findings from interference in the absence of palpable and overriding errors.
2. The crux of this Leave to Appeal Application is the factual finding by Justice Marcotte (the “trial judge”) that she was not convinced on a balance of probabilities that an earlier detection of Mr. Marc Emond’s cancer would have avoided his death.
Part II Statement of Issues
12. The Petitioners submit that the Quebec Court of Appeal improperly intervened in the first instance factual finding that Mr. Emond’s cancer was probably at least at stage III in November 2005 and January 2006 and that as such, the delay before his treatment in January 2007 did not cause his death.
13. Fournier, J.A. improperly intervened upon a complete review of the evidence, without identifying a palpable error by Marcotte J. He then improperly excluded accepted clinical survival rates to call this error overriding. His opinion was not supported by the concurrent judgment.
14. Kasirer and Belanger, JJ.A. improperly intervened by characterizing the failure of Marcotte J. to draw a negative inference as a question of law, thus permitting the Court of Appeal to substitute its view. However, with respect, this is itself an error in law, as the decision to draw an inference or not is a question of fact, not of law. Justice Marcotte committed no palpable and overriding error in deciding not to draw a negative inference on the facts before her.
15. The Quebec Court of Appeal decision, as it stands, contradicts existing Supreme Court jurisprudence (both in civil and common law) and other Quebec Court of Appeal jurisprudence. It is thus of national importance that the Supreme Court overturn the decision, as it will lead to uncertainty and debate.
Part III Statement of Argument
A: Law of Causation
(a) Standard of review: causation is a question of fact and the standard on appeal is that of overriding and palpable error
(b) The decision to draw an inference (or decide that a factual presumption applies) is also a question of fact
(c) Applicability of presumptions
(d) Judges are not bound by statistical or expert evidence
B Erroneous imposition of a negative inference of causation
(a) “Impossibility” of proving causation by reason of the physicians’ fault
(b) “Authoritative medical statistics” that the cancer when found fortuitously was likely at stage 1
C Absence of Palpable and Overriding Error of Fact
D National Importance – Coherent Jurisprudence
83. With causation perceived as a difficult area for parties, experts and judges, it is of national importance that case law remain consistent and coherent. In the area of causation, Quebec has liberally borrowed from the common law (Snell, inter alia) and the common law has imported important civil law decisions. Medical liability cases are valuable and highly visible precedents, rapidly exportable to other liability fields.
85. This case – despite its claim of coherence with existing law – could lead to confusion and inconsistency in the field of causation. It is in fact contrary to the most recent and guiding case law on both causation and presumptions, in both common and civil law. It is in the interest of justice to prevent the drawing of an automatic presumption or inference from scant evidence, which as noted by Professor Khoury, “may lead in effect to the same consequences as pure reversal of the burden of proof. If this occurs, it should prompt strong objections, since this option has been rejected as a general tool in medical malpractice in the five jurisdictions studied, and we have concluded that no policy consideration is weighty enough to support this solution in this specific area.”
From Respondents Factum
PART I – OVERVIEW AND STATEMENT OF FACTS
A) Medical Malpractice and Causation: The Law is Settled
1. The law in Canada with respect to causation, including proof of causation in a medical malpractice context, is settled. This Honourable Court has clearly set forth the relevant legal principles regarding the burden of proof and the means of proof of causation, including the notion of an “adverse inference”, in, inter alia, Laferrière v. Lawson, Snell v. Farrell and St-Jean v. Mercier.
2. The law in Quebec with respect to causation in a medical malpractice context is also settled. The Quebec Court of Appeal has for many years followed the teachings of this Honourable Court, and there is no controversy or conflicting jurisprudence in the Quebec Court of Appeal in this regard.
3. In the present matter, the Court of Appeal applied the well-established principles set forth by this Honourable Court in Snell and in St-Jean, and correctly concluded that the Applicants’ fault caused Marc Émond’s death and the damages resulting therefrom to his widow and teenage son.
4. This Honourable Court has also clearly set forth the permissible boundaries of appellate intervention, and no further guidance on this subject is required. Those boundaries were respected and were not crossed by the Quebec Court of Appeal in this case.
5. The Applicants’ Application for Leave to Appeal does not raise any issue of national or public importance, or any novel or unsettled question of law.
Part II Statement of Issues
22. The sole issue is whether this Application for Leave to Appeal raises any issue of national or public importance. With respect, we submit that this case does not. The Court of Appeal below simply applied the well-established jurisprudence regarding causation emanating from this Honourable Court to the particular facts of this case.
Part III Statement of Argument
(i) The Application for Leave to Appeal does not raise any issue of national or public importance
(ii) The Court of Appeal Applied and Followed the Jurisprudence of the Supreme Court of Canada
(iii) The Court of Appeal Confirmed that an Adverse Inference May be Drawn.
(iv) The Court of Appeal Confirmed that the Burden of Proof Always Rests with Plaintiffs
(v) The 78% Statistic was Accepted and Not Disputed.
(vi) Lung Cancer Cure Rates: Pathological Rates are the “Gold Standard”
(vii) No Evidence to the Contrary
(viii) The Trial Judge’s Error on Causation was Overriding