CITATION:
Sordi v. Sordi, 2011 ONCA 665

DATE: 20111025

DOCKET: C52450

COURT OF APPEAL FOR ONTARIO

MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Joanne Clare Sordi

Applicant (Respondent in Appeal)

and

Cameron Sordi

Respondent (Appellant in Appeal)

Gary S. Joseph and Vanessa Lam, for the appellant

L. Jane Rutherford, for the respondent

Heard:
October 17, 2011

On appeal from judgment of Justice
          D. R. Timms of the Superior Court of Justice dated June 25, 2010 and the
          costs order dated November 12, 2010.

Epstein J.A.:

[1]

In July 2007,
a six‑year
    marriage between a successful dentist and his equally well-educated wife who
    stayed at home to raise their three sons, ended.

[2]

Their relationship, both during
    the marriage and since separation, has been dysfunctional.  With effort, they
    could have resolved the relatively straight-forward issues relevant to their
    separation.  This would have involved a certain degree of mutual understanding
    and acceptance of their own character traits that have prevented a successful
    marriage, in order to settle their differences with substantially less damage
    to each other, their children and their resources.

[3]

But, that did not
    happen. Intransigence and a lack of objectivity about themselves and each other
    led to a 25-day trial in which
virtually
    every conceivable issue relevant to the parties separation remained in
    dispute.  Fortunately, during trial they were able to resolve some matters
    relating to division of property and the appellant husbands income.

[4]

The primary issues left for the
    trial judge to determine were custody, access, spousal and child support and
    the appellants claim for damages based on malicious prosecution.

[5]

In a lengthy and detailed
    judgment, the trial judge granted sole custody of the boys to the respondent,
    child support in the monthly amount of $4,816 based on the appellants income
    of $300,000, and spousal support to be paid by the appellant in the monthly
    amount of $3,851 with a review to be undertaken as of October 12, 2012.  He
    dismissed the respondents claim for retroactive child and spousal support and
    the appellants claim for damages for malicious prosecution.  He also dealt
    with ancillary matters including ordering that the appellants dentistry
    corporation secure the support orders and equalization payment.

[6]

After receiving cost submissions,
    the trial judge awarded costs in favour of the respondent in the amount of
    $254,500, with $10,000 designated as a support order.

[7]

The appellant contests every
    aspect of the trial judges order that was not in his favour.  While many
    issues have therefore been raised in this appeal, the focus here, as it was
    before the trial judge, is the custody of the children and matters related to
    that decision; namely, child and spousal support.

[8]

In relation to the costs award,
    the appellant challenges the trial judges order making $10,000 of the costs
    award enforceable as spousal support. The same issue is raised in the
    respondents cross-appeal: she submits that the entirety of the costs award
    should be designated as support, and thus enforceable under
s. 1(1) of the
Family
    Responsibility and Support Enforcement Act
, S.O. 1996, c. 31.  The
    enforcement system established under that Act is commonly referred to as FRO.

Trial Fairness and the Custody Order

[9]

The mainstay of the appellants position is that he was denied a
    fair trial. The unfairness, argues the appellant, arises out of the cumulative
    effect of the trial judges refusal to admit evidence critical to the
    determination of custody, upon which so many other issues depend.

[10]

Specifically, the appellant
    submits that the trial judge
erred in
    refusing to admit audio tapes of recordings of conversations between himself,
    the respondent, and the children  tapes that he recorded without the
    respondents knowledge.  He also contends that the trial judge erred in
    refusing to admit a report by a social worker he hired to critique the
    court-ordered custody and access report.
Finally,
    the appellant contends that t
he trial
    judge erred in refusing to admit the reports and testimony of his psychologist
    who, on the basis of his counselling of the appellant and visits with the
    appellant and the boys, was in a position to assist the court as to the
    appellants fitness as a father.

[11]

In my view, there was nothing
    unfair or improper about the conduct of the trial.  Specifically, there is no
    reason to question the exercise of the trial judges discretion not to admit
    the proposed evidence about which the appellant complains.

[12]

With respect to the taped
    conversations, the trial judge relied on solid principles that took into
    account not only the sound public policy of trying to discourage the use of
    secretly recorded conversations in family proceedings but also his assessment
    of the probative value of the tapes in relation to the issues before him.

[13]

Turning to the proposed evidence
    of the social worker and the psychologist, it is my view that the trial judge
    properly excluded it as not being necessary under
R. v. Mohan
, [1994] 2
    S.C.R. 9.

[14]

I find no fault with the trial
    judges refusal to admit the report on the basis of (1) its frailties, and (2)
    the fact that its value  to impeach the report of the court-appointed expert
    remained available to the appellant through cross-examination and, ultimately,
    argument.   I strongly support the view expressed by Justice Wein in
Mayfield
    v. Mayfield
(2001), 18 R.F.L. (5th) 328, at para. 44 (Ont. S.C.), that

in most cases, it is simply not necessary or
    appropriate to have the parties bring forward the evidence of a collateral
    critique. A social work critique may of course be done to assist counsel in
    formulating questions for cross-examination of the assessor or to assist
    counsel in developing an argument concerning the weight to be attached to an
    assessment report but it will rarely be necessary to introduce the critique
    as original evidence or to call the critique as a witness. The expense in most
    cases could be better spared or applied to an independent assessment.

[15]

The exclusion of the reports of Dr. Peterson, the appellants
    psychologist, and his proposed testimony, was similarly justified. It was open
    to the trial judge to conclude that the reports and testimony would have been
    of little use given that the doctor has no background in child psychology, has
    never observed the children with the respondent, and was admittedly biased in
    favour of the appellant.

[16]

In the end, the record
    overwhelmingly supports the trial judges custody disposition.

Malicious Prosecution Claim

[17]

The malicious prosecution claim arises from the appellants
    position that the respondent, by accusing the husband of physical abuse, abused
    the criminal justice system to interfere with his chances of obtaining a
    favourable custody order.

[18]

In considering this aspect of the
    appellants case, the trial judge carefully reviewed the facts relating to each
    of the assault charges that were laid against the appellant.  Applying these
    facts to the four-part test set out in
Nelles v. Ontario
, [1989] 2
    S.C.R. 170, the trial judge concluded that the appellant failed to establish
    that the test had been met in relation to any of the charges. I find no fault
    with this conclusion.

Child Support

[19]

Section 10(2)(a) of the Federal Child Support Guidelines, O. Reg.
    391/97, permits courts to vary the amount of child support to avoid imposing
    undue hardship on a parent or spouse who has responsibility for an unusually
    high level of debts reasonably incurred to support the parents or spouses and
    their children during cohabitation or to earn a living.  The legal costs
    associated with this litigation caused the appellant to accumulate an
    astonishing amount of debt  the estimate is somewhere between 1 and 1.5
    million dollars.  The trial judge rejected this argument on the basis that the
    appellants approach to the litigation was such that the amount of money he
    spent was staggering and out of proportion.  This description is apt and,
    in itself, justifies the trial judges conclusion that the appellant did not
    meet the onus he faced in demonstrating that the guidelines amount of child
    support should not apply.

The Costs Award  Appeal and Cross-Appeal

[20]

The costs award, its amount and the extent to which it was or was
    not designated as support for the purposes of being enforced through FRO was
    raised as a specific issue on appeal and was the subject of the cross-appeal.

[21]

Turning first to quantum, in my
    view, the trial judge made no error. In the context of family law disputes, a
    court need not find special circumstances to make a costs award approaching
    substantial indemnity: see
Biant v. Sagoo
(2001), 20 R.F.L. (5th) 284,
    at para. 20 (Ont. S.C.).  Here, the trial judge, well-experienced in family
    law, carefully considered all factors relevant to the award of costs. The
    amount awarded was, in the circumstances of this unfortunate case, reasonable.

[22]

This leads to the final issue
    the enforceability of the costs award through FRO.

[23]

Section 1(1)(g) of the
Family
    Responsibility and Support Enforcement Act
, S.O. 1996, c. 31 provides that
    a support order enforceable by FRO can include provision for legal fees or
    other expenses arising in relation to support.

[24]

Each party submits that the trial
    judge erred in his determination of how much of the respondents costs would be
    subject to FROs enforcement mechanisms.

[25]

The court has considerable discretion over how to deal with a request
    that legal costs be designated as support for the purposes of enforcement by
    FRO, a designation that is complicated when, as here, in addition to support, a
    number of other issues are litigated.
In this case the trial
    judge approached the problem one way  he did his best to identify the portion
    of the trial consumed by the support dispute, assigned a cost amount to it and
    ordered that amount designated as support.  He may have chosen not to attempt
    to perform what is admittedly a somewhat arbitrary dissection of costs.  But he
    cannot be faulted for doing what he did. The statute and case law support an
    approach of this nature: see
Hatcher v. Hatcher
, [2009] W.D.F.L.
    5320, at paras. 30-36 (Ont. S.C.)

[26]

In terms of the appellants position, it is my view that there is
    nothing that warrants interference with the trial judges designation of
    $10,000 of the costs award as part of the child support order for enforcement
    purposes.  In terms of the cross-appeal, to designate all of the costs of the
    appellant by cross-appeal as support for the purposes of FRO enforcement would
    not only be an uncalled for interference with the discretion of the trial judge
    but also may be considered unjust in the light of the resources expended in
    pursuing issues unrelated to support, such as the malicious prosecution
    claim.

[27]

Finally, the
trial judge ordered that all
    amounts owed by the appellant be secured and enforceable against not only the
    appellant personally, but also against his dental business.  This was an order
    that made sense, particularly given the length of time over which the appellant
    will be paying the equalization amount (10 years with no interest).

[28]

For these reasons, both the appeal and cross-appeal are
    dismissed.  The respondent is entitled to her cost of the appeal in the amount
    of $23,000.  The appellant is entitled to his costs of the cross-appeal in the
    amount of $3,000.

RELEASED: JCM             G.J. Epstein J.A.

OCT 25 2011                    I agree J.C.
    MacPherson J.A.

I
    agree H.S. LaForme J.A.


CITATION:
Suwary v. Women's College
          Hospital, 2011 ONCA 676

DATE: 20111031

DOCKET: C50772

COURT OF APPEAL FOR ONTARIO

Simmons, Armstrong and LaForme JJ.A.

BETWEEN

Robert Gregory Suwary and Kylie Suwary, minors by their
          Litigation Guardian, Kimberly Long-Suwary, Robert Edward Suwary, Katie
          Buchanan and the said Kimberly Long-Suwary, personally

Plaintiffs (Appellants)

and

Women's College Hospital, Clifford Librach,
Sarah
          Ferguson, Sharon Unger
and Laura Lee

Defendants (Respondents)

Paul J. Pape and Shantona Chaudhury for the appellants

Frank McLaughlin, Ken Morris and Sharon Wilmot for the
          respondent Clifford Librach

Michael K. McKelvey and Anna L. Marrison for the respondents Women's
          College Hospital and Laura Lee

Heard: April 26, 27 and 28, 2011

On appeal from the judgment of Justice Patrick Moore of the
          Superior Court of Justice dated June 19, 2009 with reasons reported at 2009
          CanLII 31985 (Ont. S.C.).

By the Court
:

I.         Introduction

[1]

The appellants appeal from
    the dismissal of their action for medical negligence relating to Robbie
    Suwarys birth.

[2]

Robbie was born at
    Womens College Hospital on January 29, 1999. Tragically, he was deprived of
    oxygen before birth and, as a result, suffers from cerebral palsy.

[3]

The central issues on
    appeal relate to the medical management of Robbies delivery between 3:30 a.m.,
    when his mother began pushing, and 4:06 a.m., when Robbie was born.

[4]

Robbies mother
    entered the second, active, stage of labour at around 3 a.m. At 3:30 a.m., Dr.
    Librach, the attending obstetrician, told her to begin pushing. Robbie was a
    large baby (just over 10 lbs.) and was presenting in the face-up position,
    potentially requiring manual rotation to the face-down position before birth.
    Nonetheless, all appeared fine to that point.

[5]

Between 3:30 a.m. and
    3:41 a.m., a fetal heart monitor attached to Robbies mothers abdomen revealed
    some decelerations in the fetal rate. Expert evidence at trial indicated decelerations
    with contractions are not uncommon in the second stage of labour. However, depending
    on their type and duration, decelerations can be a cause for concern, and, in
    some cases even alarm.

[6]

At 3:41 a.m., Dr.
    Librach applied a vacuum extractor in an effort to expedite Robbies delivery.
    Soon after the vacuum was applied, the fetal heart rate became abnormally low and
    remained that way for a lengthy period of time  in medical terms, the fetal
    heart rate became bradycardic.

[7]

At 3:49 a.m., after
    three pulls on the fetal head, Dr. Librach removed the vacuum. The head had not
    made much progress and the fetal heart rate was still bradycardic. Dr. Librach
    concluded the situation was now an emergency. He transferred Robbies mother from
    the labour room to an operative delivery room. At 4:01 a.m., Dr. Librach applied
    forceps to rotate the fetus to the face-down position. Robbie was born at
    4:06 a.m.

[8]

Robbie was not
    breathing when he was born and he had no detectable heart rate. He took his
    first breath five minutes after delivery. Unfortunately, the oxygen deprivation
    he suffered caused permanent brain damage, which, in turn, led to cerebral
    palsy. As was noted by the trial judge, Robbies cerebral palsy will affect him
    and those who live with him and care for him throughout his life.

[9]

The Suwarys sued Dr.
    Librach, the hospital, the attending obstetrical nurse (Nurse Laura Lee), an
    obstetrical resident (Dr. Sarah Ferguson) and a neonatal fellow (Dr. Sharon
    Unger), claiming damages for medical negligence.
[1]
After a 38-day trial dealing exclusively with liability issues, Moore J.
    dismissed the Suwarys action.

[10]

There was no real dispute at trial that Robbies brain injury was the
    result of an acute near total asphyxia
[2]
likely caused by an occult prolapse of the umbilical cord.
[3]

[11]

However, the appellants argued that it was the application of the vacuum
    that triggered the bradycardia that began around 3:41 a.m. In addition, and among
    other things, the appellants claimed that Dr. Librach committed the following three
    breaches of the standard of care:

·

he failed to apply a fetal scalp clip (an internal fetal heart
    rate monitor attached to the fetal scalp) when faced with an uninterpretable
    fetal heart rate tracing from an external heart rate monitor;

·

he applied the vacuum extractor without an indication; and

·

he failed to anticipate and make proper preparations for the
    possibility that the attempt at vacuum delivery in the labour room might fail.

[12]

Various expert witnesses gave opinion evidence about the standard of
    care issues. All agreed that the standard of care requires that there be an
    indication for applying a vacuum extractor. The experts opinions about whether
    such an indication existed were premised, to a large extent, on paper tracings
    of the fetal heart rate produced by the external fetal heart rate monitor
    attached to Robbies mothers abdomen.

[13]

The experts disagreed about whether gaps in the paper tracings made the
    tracings uninterpretable. The gaps occurred during the period between 3:30
    a.m., when Robbies mother started pushing, and 3:41 a.m., when Dr. Librach
    applied the vacuum.

[14]

The disagreement over gaps in the tracings, in turn, led to disagreement
    about whether the standard of care required Dr. Librach to apply a fetal
    scalp clip so he could obtain better fetal heart rate information before
    deciding on delivery options.

[15]

The external monitor that was used to monitor the fetal heart rate had
    three types of output: a visible paper tracing; a digital readout; and an
    audible output.

[16]

The trial judge essentially disregarded the expert evidence concerning
    the interpretability of the fetal heart rate tracings  he determined that the
    expert witnesses had an incomplete factual underpinning for the opinions they
    offered because they had no information about the audible or digital output
    from the external fetal heart rate monitor.

[17]

Importantly, the trial judge also found that the evidence did not
    establish whether Dr. Librach, Nurse Lee or Dr. Ferguson could see the digital
    readout from their location(s) in the delivery room. Further, he said there was
    no evidentiary basis upon which [he could] find that people in the room would
    have heard all or any of the audible output normally generated by the monitor
    in times coincident with tracing gaps.

[18]

Nonetheless, the trial judge accepted Dr. Librachs evidence that he and
    others present in the labour room were well aware of fetal heart activity as
    the result of the visual and audible outputs from the [external fetal heart
    rate] monitor.

[19]

The trial judge dealt with standard of care issues and causation in
    various sections of his reasons.

[20]

Early in the analysis portion of his reasons, when discussing informed
    consent, the trial judge noted that Dr. Librach appreciated that Robbie had
    endured several deep decelerations [drops in the fetal heart rate] and  was
    concerned about hypoxia when he applied the vacuum.

[21]

Later in his analysis, the trial judge addressed the causation and
    standard of care issues vis-à-vis Dr. Librach in a section of his reasons entitled
    Allegations against the Defendants.

[22]

In the trial judges view, the asphyxial insult that led to Robbies
    brain injury began around 3:30 a.m. shortly after Robbies mother began
    pushing. Further, he concluded that the deep and prolonged decelerations of
    the fetal heart that occurred between 3:41 and 3:49 a.m. (during the time that Dr.
    Librach attempted vacuum extraction) would have occurred even if Dr. Librach
    had opted to delay applying the vacuum and apply a scalp clip instead.

[23]

As for Dr. Librachs role in these events, the trial judge found that
    there was no credible evidence supporting a case for application of a scalp
    clip before [3:41 a.m.]. In any event, it was sheer speculation to
    predict whether Robbies outcome would have been different, let alone more
    favourable had Dr. Librach opted to delay the vacuum and to apply a scalp clip
    to obtain more information about the fetal heart rate.

[24]

The trial judge observed that the asphyxial insult produced a clinically
    emergent situation. In such circumstances, Dr. Librach acted appropriately in
    deciding to apply the vacuum rather than embark on further diagnosis. The trial
    judge found no merit in the appellants submission that it was inappropriate to
    apply the vacuum in a labour room.

[25]

In the end, the trial judge expressed the view that Dr. Librach could
    not have determined the cause of the insult that produced Robbies brain injury
    prospectively. He concluded that the respondents neither caused nor contributed
    to the insult and/or the injury.

[26]

The appellants raised multiple issues on their appeal against the
    dismissal of their claim against Dr. Librach, which we have summarized in
    Appendix A. In our view, it is unnecessary that we deal with all of these issues
    in order to dispose of the appeal. For the reasons that follow, we draw the
    following two conclusions that require us to allow the appeal with respect to
    the claim against Dr. Librach:

i)

the trial judge made inconsistent findings concerning the fetal heart
    rate evidence thereby undermining his finding that that everyone in the room
    was well aware of fetal heart rate activity as the result of visual and audible
    outputs from the monitor; and

ii)

the trial judge failed to explain the basis for his conclusion that the
    deep and prolonged decelerations of the fetal heart that occurred between 0341
    and 0349 (during the time that Dr. Librach attempted vacuum extraction) would
    have occurred even if Dr. Librach had opted to delay vacuum and to apply a
    scalp clip. We can find no evidentiary basis for this conclusion.  Without
    this finding, we are not satisfied that the trial judges conclusion on
    causation would have been the same.

[27]

The appellants pursued only one issue on their appeal against the
    dismissal of their claims against Nurse Lee and Womens College Hospital. For
    reasons we will explain we do not give effect to that ground of appeal.

II.        Background

i)

Obstetrical History relevant to Robbies Birth

[28]

Robbies mother, Kimberley Long-Suwary, and her husband, Robert Suwary,
    initially consulted Dr. Librach to obtain fertility treatment. With Dr.
    Librachs help, Ms. Long-Suwary bore two children: Kylie, who was born in 1996,
    and Robbie, who was born in 1999.

[29]

Kylie was a large baby (10 lbs. one oz.), but was delivered successfully
    with the assistance of a vacuum extractor.

[30]

Ms. Long-Suwary attended Womens College Hospital on January 28, 1999 by
    pre-arrangement to have Robbies birth induced. Once she was fully dilated, an
    obstetrical resident, Dr. Ferguson, ruptured her membranes around 3 a.m. on
    January 29, 1999, signifying the beginning of the second, active stage of
    labour.

ii)

The Gaps in the
Paper
Tracing
s
    of the Fetal Heart Rate during the Second Stage of Labour

[31]

During the second stage of labour, maternal contractions and the fetal
    heart rate were to be tracked by external monitor(s) attached to Ms.
    Long-Suwarys abdomen  a tocodynamometer to track maternal contractions and a
    transducer to track the fetal heart rate. From 3:32 a.m. onward, no maternal
    contractions were recorded by the tocodynamometer and it appears that that
    monitor may have fallen off. After 3:32 a.m., Nurse Lee tracked maternal
    contractions manually by palpating Ms. Long-Suwarys abdomen.

[32]

As we have said, the transducer tracking the fetal heart rate had three
    sources of output: a visible paper tracing (which also traced tocodynamometer
    output when available), a digital readout, and an audible output.

[33]

Soon after Ms. Long-Suwary began pushing, significant gaps appear in the
    paper tracings produced by the transducer.

[34]

In the 12 one-minute blocks of the tracings from the
    notation 0330 pushing to the notation 0341 vacuum applied by Dr. Librach,
    there are approximately seven minutes of gaps showing no tracing whatsoever
    and no continuous area of tracing

that exceeds 45 seconds.

[35]

It is these gaps in the paper tracings that led to disagreement among
    the experts (Dr. Harman and Dr. McGrath for the appellants, and Dr. Davies for
    Dr. Librach) concerning whether the paper tracings were interpretable.

iii)

Evidence
Relating to Robbies Birth

[36]

While in the labour room, Nurse Lee made contemporaneous notes charting
    the active phase of Ms. Long-Suwarys labour. The contemporaneous notes refer
    to decelerations in the fetal heart rate at 3:35 and 3:40 a.m. In both
    instances, the fetal heart rate recovered to its previous level within a short
    period of time:

·

3:20 [a.m.]  148 [beats per minute]

·

3:30 [a.m.]  - 140 [beats per minute]

·

3:35 [a.m.]  -

50-70 ^ 140 [beats per minute]

·

3:40 [a.m.] -

50-70 [beats per minute]

·

3:41 [a.m.] - 140-145 [beats per minute].

[37]

Nurse Lee made additional notes following Robbies birth (late
    entry notes) that set out the basic chronology of events between 3:20 a.m. and
    3:41 a.m., when Dr. Librach applied the vacuum in the labour room. The late
    entry notes refer to two additional decreases in the fetal heart rate at 3:36
    and 3:37 a.m. and also document the extent of the fetal heart rate recovery:

·

0320 Dr. Librach arrived V/E [vaginal examination] fully dilated

·

0330 starting to push at Dr. Librach's request. Dr. Librach
    present.

·

0336 FH [fetal heart rate] down to 78 up to 140 [beats per
    minute]

·

0337 FH 74-95 [beats per minute] with pushing

·

0338 FH 125-150 [beats per minute]

·

0340 difficulty picking up FH. Dr. Librach aware and requested
    vacuum

·

0341 vacuum applied by Dr. Librach FH down to 55 [beats per
    minute] up to 140-145 [beats per minute].

[38]

According to Dr. Librach, following the application of the vacuum, the
    fetal heart rate dropped to between 60 and 80 beats per minute and stayed there
    for a prolonged time. There was a brief recovery at around 3:45 a.m. and then
    another deceleration with vacuum application followed by another recovery.
[4]
After three pulls on the vacuum with contractions the fetal head did not come
    down and rotate, and the attempt to expedite delivery using the vacuum was
    declared a failure at 3:49 a.m.

[39]

The trial judge found that because of the unanticipated bradycardia, Dr.
    Librach decided that this was now an emergent situation. It was necessary that
    he immediately transfer Ms. Long-Suwary to an operative delivery room where
    another form of delivery could be attempted.

[40]

To facilitate Ms. Long-Suwarys transfer to the delivery room, the
    labour room transducer tracking the fetal heart rate was removed and a new
    transducer was attached once she arrived in the delivery room at 3:58 a.m.
    Following her arrival, the fetal heart rate remained abnormally low until 4:01
    a.m. when Dr. Librach applied forceps to rotate the fetus to a face-down
    position. Dr. Ferguson and Dr. Librach then completed the delivery and Robbie
    was born at 4:06 a.m.

[41]

After Robbie was born, Dr. Librach prepared a handwritten delivery
    summary and dictated an operative report, both of which referred to
    decelerations in the fetal heart rate as the reason for applying the vacuum.
    The delivery summary includes the following notations:

Pushing at fully  ROP
[5]
position
Decels with contractions therefore vacuum applied
, did not
    come with 3 contractions, Transferred to Delivery room for forceps rotation to
    ROA
[6]
FH [up] as soon as head rotated. Then delivered easily. [Emphasis and
    footnotes added.]

[42]

The operative note refers to a Mid-forceps delivery and includes a pre-operative
    diagnosis explaining the need for that procedure: Fetal distress, posterior
    position. Like the delivery summary, the operative note refers to
    decelerations in the fetal heart rate as the reason for applying the vacuum:

At the time of her assessment at full dilation the
    baby's head was right occiput posterior position and she began to push. With
    contractions she pushed and there were decelerations noted by external
    monitoring.
After a few contractions the decelerations persisted and it was
    decided to aid in her delivery
. [Emphasis added.]

iv)

Dr. Librachs Evidence

[43]

The crux of Dr. Librachs evidence in-chief at trial was that he applied
    the vacuum because, after Ms. Long-Suwary began pushing, she began to have
    decelerations with contractions and recovery after those decelerations became
    more slow with time. The depth of the decelerations was quite deep, down to
    at least 80 or below  and Dr. Librach was becoming concerned because
    of the persistence of these deep decelerations.

[44]

As a result of his concern, Dr. Librach examined Ms. Long-Suwary. The
    fetal head was engaged but in the face-up position. He recalled thinking, we
    are not going to have a delivery imminently. Accordingly, because he was
    becoming concerned about the persistent and recurrent deep decelerations, he
    decided to expedite delivery. Although he considered putting on a scalp clip,
    he decided not to as it would take time and merely confirm what he already
    knew.

[45]

A key issue at trial was Dr. Librachs credibility. Following his
    examination in-chief, he was cross-examined over approximately five days. Among
    other things, he was challenged on alleged discrepancies between his trial
    evidence and his evidence at his examination for discovery.

[46]

The appellants maintained that Dr. Librachs discovery evidence
    indicated he was not particularly concerned about the status of the fetal heart
    rate before he applied the vacuum  he saw some evidence of decelerations with
    contractions but overall he was reassured by the fact that following the
    decelerations the fetal heart rate returned to baseline. He applied the vacuum
    because he wanted to aid in the delivery.

[47]

The appellants argued that, at its core, Dr. Librachs discovery
    evidence did not reveal a proper basis for applying the vacuum, a form of
    operative vaginal delivery.

[48]

Despite Dr. Librachs change in evidence, the trial judge found him a
    credible witness.

v)

Evidence about the Classification of Fetal Heart Rate Decelerations

[49]

The classification of fetal heart rate decelerations was a significant
    topic of expert testimony. According to Dr. McGrath, there are three main types
    of decelerations and they are defined in terms of their relationship to uterine
    contractions. The classifications are: early, variable and late.

[50]

On a tracing, early decelerations look like a contraction upside down.
    They essentially mirror the contractions, with their nadir at the peak of the
    contraction  and they resolve when the contraction ends. Variable
    decelerations are variable in their timing and appearance. They can occur with
    or following contractions. While their duration can vary, they generally
    commence and recover very rapidly. Late decelerations begin during a
    contraction, have their nadir following the peak of the contraction and resolve
    after the contraction.

[51]

Dr. McGrath testified that decelerations occurring at the same time as
    pushing are common in the second stage of labour. While they may be deep, they
    are not prolonged and would by themselves likely not indicate operative vaginal
    delivery  meaning use of a vacuum or forceps. As pushing coincides with
    contractions, this evidence appears to refer to early decelerations.

[52]

Significantly, Dr. McGrath agreed during his testimony that deep,
    prolonged variable decelerations tend to accompany the early stages of severe
    cord compression.

III.      The Trial Judges Reasons

[53]

For the purposes of this appeal, the key portions of the trial judges
    reasons are those relating to fetal heart rate evidence, standard of care and
    causation. We will set out the trial judges reasons relating to fetal heart
    rate evidence in detail when discussing our conclusion on that issue. For now,
    we will provide a brief summary of his credibility findings and set out his
    findings concerning standard of care and causation.

i)
The Trial Judges
    Credibility Findings

[54]

The trial judge found Dr. Librach, Dr. Ferguson and Nurse Lee to be
    credible witnesses. As for the expert witnesses, the trial judge said he valued
    the input of Dr. McGrath (for the appellants) and Dr. Davies (for the respondents).
    He found that these two witnesses gave objective and balanced accounts of
    their views. On the other hand, he found Dr. Harman to be a partisan witness
    who offered standards of care  that did not stand up to scrutiny in
    cross-examination.

ii)        The Trial Judges Findings about
    Standard of Care and Causation

[55]

The trial judge structured his reasons under a variety of headings that
    did not include standard of care and causation as free-standing issues. In our
    view, his findings on these subjects are found under at least two headings. As these
    findings  are important to the issues on the appeal against the dismissal of
    the claim against Dr. Librach, we will set out his findings on the first two
    alleged breaches of the standard of care and causation in full:

Informed Consent

239
At the time that Dr. Librach recommended
    use of the vacuum,
he appreciated that Robbie had endured several deep
    decelerations and Dr. Librach was concerned about hypoxia
45
and its
    clinical sequelae and he knew that time was becoming of the essence
. I
    accept as reasonable that he exercised his judgment in favour of a brief
    discussion with Kimberly and that he chose not to specifically discuss the
    risks associated with a C-section then, as it was not called for... [Emphasis
    added.]

240
The experts agreed that the scenario
    that followed upon the application of the vacuum in this case was one that
    could not have been predicted and it is not one that I find ought to have been
    discussed with Kimberly in advance. No expert was heard to opine that C-section
    should have been offered prior to 0341

Allegations Against the Defendants

255
The evidence that I accept and value
    confirms that a scalp clip, also referred to as a scalp electrode, is a fetal
    heart monitoring device that is designed to be screwed into the fetal scalp in
    order to obtain information about fetal heart activity. It is not a treatment
    tool. It is a diagnostic device. It cannot be used at the same time as a vacuum
    is in use.

256
I cannot find that attaching a scalp
    clip could have revealed normal fetal heart activity after 0341 and there is no
    credible evidence supporting a case for application of a scalp clip before
    0341.

257
Even Dr. Harman stops short of
    saying that fetal head compression, cord prolapse or both occurred only after
    0341; as such, I must find that the deep and prolonged decelerations of the
    fetal heart that occurred between 0341 and 0349 (during the time that Dr.
    Librach attempted vacuum extraction) would have occurred even if Dr. Librach
    had opted to delay vacuum and to apply a scalp clip.

258
It is sheer speculation to predict
    whether Robbie's outcome would have been different, let alone more favourable,
    had this theoretical alternative path been followed.

259
In my view, the asphyxial insult
    that lead to Robbie's brain injury incepted shortly after Kimberly entered the
    second stage of labour and began pushing, around 0330.
50
The insult
    produced the deep decelerations that Dr. Librach and Nurse Lee observed, two of
    which Nurse Lee also recorded.

260
The insult produced a clinically
    emergent situation that Dr. Librach analyzed and applied his best clinical
    judgment to. He determined that a vacuum and not further diagnostic
    intervention was called for. I agree.
51
I cannot fault Nurse Lee for
    assisting Dr. Librach fully in responding to the situation.

F/N 45
A view supported by the opinion of
    Dr. Davies who read the relevant portion of the tracing and testified (on 2
    April 09, p. 139) that between 0332 and 0341 the fetal heart rate was
    non-reassuring and (p. 124) the tracing showed repetitive decelerations
    demonstrating a fetus that "is either in an hypoxic environment or an
    environment that has the potential for hypoxia".

F/N 50
Drs. McGrath and Davies agree that
    the heart rate pattern changed suddenly. Dr. McGrath concluded, in retrospect,
    that the sudden change began shortly after Kimberly started to push and
    Robbie's injuries began during the last 30 minutes before his birth.

F/N 51
Agate v. Burrows,
[1988] B.C.J. No.
    586 (B.C.S.C.) at p. 8.

IV.      Analysis

1) The Trial Judge Made Inconsistent
    Findings concerning the Fetal Heart Rate Evidence

i)         Introduction

[56]

Much time and energy at trial was devoted to leading evidence about the
    state of the fetal heart rate between 3:30 and 3:41 a.m., when Dr. Librach
    applied the vacuum extractor.

[57]

The appellants submit that the trial judge found, at paras. 85 to 87 of
    his reasons, that the expert evidence concerning whether the paper tracing was
    interpretable was conflicting and that he also concluded, at paras. 86 and 215,
    that the output from the fetal heart rate monitor, both audible and visual, was
    uninterpretable.

[58]

The appellants contend that, having made those findings, the trial judge
    made a palpable and overriding error by accepting, at para. 222, Dr. Librachs
    evidence that everyone in the labour room was well aware of fetal heart rate
    activity based on the output from the fetal heart rate monitor and that his
    (Dr. Librachs) decision to apply the vacuum was informed by that information.

[59]

This finding, in turn, formed the underpinning of the trial judges
    subsequent conclusions that Dr. Librach perceived deep persistent decelerations
    of the fetal heart rate and that that information justified Dr. Librachs
    decision to apply the vacuum rather than attach a fetal scalp clip.

[60]

The appellants contend that as a result of the trial judges palpable
    and overriding error in accepting Dr. Librachs evidence that everyone in the
    labour room was well aware of fetal heart rate activity, the trial judge made
    two additional errors. First, he failed to resolve the conflict in the expert
    evidence concerning whether the paper tracing was interpretable. Second, he
    failed to determine whether the standard of care required application of a
    scalp clip.

[61]

For reasons that we will explain, we accept these submissions.

ii)        The Trial Judges Reasons

[62]

At paras. 85 to 87 of his reasons, in the concluding portion of a preliminary
    section of the reasons entitled Labour and Delivery Records, the trial judge
    made statements about the interpretability of the fetal heart rate tracings
    that the appellants say are inconsistent with the trial judges subsequent
    finding at para. 222 that everyone in the [delivery] room was well aware of
    fetal heart activity as the result of the visual and audible outputs from the
    monitor. According to the appellants, para. 87 also confirms that the trial
    judge was satisfied that the expert witnesses disagreed about whether the paper
    tracings were interpretable:

85
What is not clear from a reading of
    these notes and records and is a central feature of this case is that
the
    external electronic monitor that was tracking both fetal heart rate and
    maternal uterine contraction activities

became largely
    un-interpretable as the final stage of labour unfolded
. As well, from about
    0332 forward to about 0353, when the monitor was removed to facilitate transferring
    Kimberly  the tracing of maternal uterine activity is not recorded by the
    external monitor at all

86
In this case, not only did the
    monitor fail to provide continuous evidence of both sets of activity but
it
    also failed to provide consistent information capable of meaningful
    interpretation regarding the fetal heart rate
and therefore the well-being
    of the fetus during many minutes before Robbie's birth.

87
The loss of maternal tracing is
    clear.
The tracing of the fetal heart rate is less so. The experts do not
    agree on whether or at what point(s) the tracing became un-interpretable
.
    [Emphasis added.]

[63]

The trial judges subsequent findings about the interpretability of the
    output from the fetal heart rate monitor appear at paras. 215 and 222 in a part
    of the analysis section of his reasons entitled Fetal Heart Rate Evidence. However,
    before reviewing these paragraphs, it is important to put them into context.

[64]

On our reading of it, there are at least three components of the Fetal
    Heart Rate Evidence section of the trial judges reasons, which consists of
    paras. 206 to 234.

[65]

In the first component, the trial judge found the fetal heart rate
    evidence fraught with problems. He noted that the fetal heart rate monitors
    were not produced in evidence. While he heard evidence of a lag time of as much
    as two minutes in the appearance of printed information on the paper tracings
    produced by the fetal heart rate monitor, he was not told whether there was a
    lag time in the digital or audible outputs from the monitor.

[66]

Further, the evidence did not establish whether Dr. Librach, Dr.
    Ferguson or Nurse Lee could see the monitor readout in the labour room and the
    position of the monitor readout screen in the delivery room was not described.

[67]

In addition, there were significant gaps in the paper tracings produced
    by the fetal heart rate monitor during the critical time frame after 3:30 a.m.
    Moreover, Dr. Librach, Dr. Ferguson and Nurse Lee all acknowledged that audible
    sounds from the fetal heart monitor were not continuous  -- in other words,
    there were also gaps in the audible output from the fetal heart rate monitor.

[68]

Para. 215 forms part of this first component of the  Fetal Heart Rate
    Evidence section of the trial judges reasons and reads as follows:

215
As discussed elsewhere in these reasons,
    there are gaps in the tracing on the fetal heart monitor strip. The evidence is
    unclear on just what one might hear in the labour room when the monitor is not
    recording a tracing. Dr. Librach, Nurse Lee and Dr. Ferguson were all in the
    labour room and all admitted that audible sounds from the fetal heart monitor
    were not continuous.
There is no evidentiary basis upon which I can find
    that people in the room would have heard all or any of the audible output
    normally generated by the monitor in times coincident with tracing gaps.
[Emphasis
    added.]

[69]

Before concluding the first component of the Fetal Heart Rate Evidence,
    the trial judge went on to note that the fact witnesses who were involved in
    the delivery tended to blur the distinction between audible and visual signals
    produced by the monitor and moved between what they could see and hear on the
    monitor readout and what was visible on the tracings. The trial judge concluded
    that in so doing the witnesses overlooked the fact that all three sources of
    information were not instantly available.

[70]

Moreover, Nurse Lee readily admitted that the times she wrote on the
    paper tracings, which was the only indication of time on the tracings, could be
    out by one or two minutes in each case.

[71]

In the result, the trial judge concluded that he must take care in
    considering the evidence of what witnesses saw on and heard from the monitor,
    because even if a witness saw or heard audible or digital readout information
    of relevance, that witness simply could not have contemporaneously seen the
    related heart activity depicted on the tracing.

[72]

In the second component of his reasons concerning the Fetal Heart Rate
    Evidence, the trial judge was critical of the expert evidence purporting to
    opine on standard of care issues based on hospital records, fetal heart rate
    tracings and discovery evidence. He pointed out that it is not now possible to
    divine from a review of the labour and delivery records the extent to which
    anyone in the labour room looked at the monitor display, at the tracing or
    listened to audible sounds in the course of making professional judgements
    while in the labour room.

[73]

The trial judge commented at para. 220: Nevertheless, the experts who
    opined about standards of care issues did just that; they looked at the WCH
    records and particularly at the fetal heart rate tracings for the factual
    foundation to support their expert opinions.

[74]

Further, the trial judge observed that although the experts (with the
    exception of Dr. Harman) reviewed Dr. Librachs discovery transcripts, neither
    the portions of the discovery transcripts read in nor other evidence at trial
    describes the extent to which digital readout-based information or audible
    sounds from the monitor informed decisions made by the doctors and nurses.

[75]

In the final component of his reasons concerning the Fetal Heart Rate
    Evidence, at paras. 222 and 223, the trial judge accepted Dr. Librachs trial
    evidence that everyone in the room was well aware of fetal heart rate activity
    and that his decision to apply the vacuum was informed by information from the
    fetal heart rate monitor. In doing so, the trial judge also observed that the
    experts had an incomplete factual underpinning for the opinions they offered
    because they did not have the same information as Dr. Librach and were not in a
    position to put themselves in his shoes:

222
Upon the trial evidence of Dr.
    Librach, however, his decision to apply the vacuum was indeed informed by
    information he saw and heard from the labour room monitor.
He maintained at
    trial, and I accept, that everyone in the room was well aware of fetal heart
    activity as the result of the visual and audible outputs from the monitor. The
    experts had no information about audible or digital display information at all
    and, therefore, an incomplete factual underpinning for the opinions they
    offered
.

223
In fact,
none of the experts
    reviewing this case could put themselves into the shoes of Dr. Librach because
    they did not have objective, quantifiable and complete evidence of exactly what
    Dr. Librach saw and heard from the heart monitor and from his patient in the
    critical timeframe at issue
. [Emphasis added.]

iii)       Discussion

[76]

We are unable to reconcile the statements made by the trial judge in paras.
    85-87 and 215 with his finding in para. 222 that everyone in the [labour] room
    was well aware of fetal heart activity as the result of the visual and audible
    outputs from the monitor.

[77]

Para. 86 includes a clear statement that the fetal heart rate monitor
    failed to provide consistent information capable of meaningful interpretation
    regarding the fetal heart rate and therefore the well-being of the fetus during
    many minutes before Robbies birth.

[78]

Although it might be argued that paras. 85  87 were merely introductory
    and in any event were intended to address only the paper tracing output from
    the fetal heart rate monitor and that the trial judge simply misspoke himself
    in referring to the output from the monitor generally in para. 86, that interpretation
    is not confirmed by the last sentence of para. 215.

[79]

The last sentence of para. 215 reads as follows: There
is no
    evidentiary basis
upon which I can find that people in the room would have
    heard
all or any of the audible output
normally generated by the monitor
    in times coincident with tracing gaps (emphasis added).

[80]

Read in context, the plain meaning of the last sentence of para. 215 is
    that there was
no evidence
adduced at trial that would  permit the trial
    judge to conclude that Dr. Librach (and the others present in the labour room)
    heard audible output from the fetal heart rate monitor during periods that
    coincided with the gaps in the paper tracings produced by the fetal heart rate
    monitor.

[81]

As the trial judge explained, the flaws in the fetal heart rate evidence
    precluded that conclusion. Although there was evidence of time lags of up to
    two minutes in production of the paper tracings emitted by the fetal heart rate
    monitor, there was no evidence concerning the timing of the audible output from
    the monitor. Was the audible output in real time? Or was there a time lag? If
    there was a time lag, was it the same as the time lag for the paper tracings?
    The trial judge simply did not know.

[82]

Before making the statement in the last sentence of para. 215, the trial
    judge had already observed that he did not know whether Dr. Librach (or the
    others present in the labour room) could see the fetal heart rate monitor from
    their location(s) in the labour room. The combined effect of that finding and
    the last sentence of para. 215, is that the trial judge had no evidentiary
    basis for concluding that Dr. Librach (or the others present in the labour
    room) had more information than the information provided by the paper tracings
    produced by the fetal heart rate monitor.

[83]

Yet the clear implication of para. 222 is that Dr. Librach and the
    others present in the labour room had more information than was available on
    the paper tracings  a finding that is inconsistent with the last sentence of
    para. 215.

[84]

Moreover, in the light of his finding at para. 215, in our view, the
    trial judge was required to assess the expert evidence relating to the
    interpretability of the paper tracings produced by the fetal heart rate monitor
    before drawing a conclusion concerning whether he accepted Dr. Librachs
    evidence that everyone in the room was well aware of fetal heart activity as
    the result of the visual and audible outputs from the monitor. The trial
    judges determination of whether the paper tracings were interpretable was
    critical to his assessment of both the credibility and the reliability of the
    fact witnesses evidence.

[85]

If Dr. Librach (and the others present in the labour room) had no more
    information than the information provided by the paper tracings produced by the
    fetal heart rate monitor and if the paper tracings were uninterpretable, that
    undermined both the reliability and credibility of Dr. Librachs evidence that
    everyone in the room was well aware of fetal heart activity as the result of
    the visual and audible outputs from the monitor.

[86]

As the trial judges finding at para. 222 is inconsistent with his
    finding at para. 215 and as the trial judge failed to determine whether the paper
    tracings produced by the fetal heart rate monitor were interpretable, his finding
    that everyone in the room was well aware of fetal heart activity as the result
    of the visual and audible outputs from the monitor cannot stand.

[87]

Further, as that finding was integral to the trial judges conclusions
    concerning whether the standard of care required the application of a scalp
    clip and concerning whether there was an indication to apply the vacuum, those
    conclusions cannot stand.

[88]

In reaching these conclusions, we acknowledge that the Dr. Librach
    argued that, by the end of the trial, there was no real conflict in the expert
    evidence concerning the interpretability of the paper tracings. However, if
    that was the trial judges view, he was required to say so and explain the
    basis of his conclusion.

[89]

In addition, Dr. Librach argued that the trial judges findings were
    consistent with his findings on factual causation. Given that the asphyxial
    insult began just after 3:30 a.m., that supported the likelihood that Dr.
    Librach perceived what he said he perceived  persistent, deep decelerations of
    the fetal heart rate that raised a concern about hypoxia, and provided an
    indication to apply the vacuum.

[90]

We agree there is some force to this argument. That said, the fact that
    there was likely a problem with the fetal heart just after 3:30 a.m. does not
    mean that Dr. Librach was able to discern it based on the information he had
    nor does it mean he was able to make a proper assessment of what delivery
    option to choose based on the information he had. In the light of his finding
    in the last sentence of para. 215, in our view, the trial judge was required to
    resolve the conflict in the expert evidence concerning whether the paper
    tracings produced by the fetal heart rate monitor were interpretable in order
    to make those determinations.

2) The Trial Judge Erred in Finding that the Deep
    and Prolonged Decelerations of the Fetal Heart that Occurred between 0341 and
    0349 (during the time that Dr. Librach attempted vacuum extraction) would have Occurred
    even if Dr. Librach had Opted to Delay Vacuum and to Apply a Scalp Clip.

[91]

The trial judge addressed causation at paras. 256 to 259 of his reasons.
    Central components of his reasoning were his findings that:

i) the asphyxial insult that
    led to Robbies brain injury began shortly after his mother entered the second
    stage of labour and began pushing, around 3:30 a.m.;

ii) the deep and prolonged
    decelerations of the fetal heart that occurred between 3:41 and 3:49 (during
    the time that Dr. Librach attempted vacuum extraction) would have occurred even
    if Dr. Librach had opted to delay the vacuum and to apply a scalp clip instead;
    and

iii) it was sheer speculation
    to predict whether Robbies outcome would have been different, let alone more
    favourable, had this theoretical alternative path been followed.

[92]

As these paragraphs of the trial judges reasons are central to this ground
    of appeal, we will set them out again in full:

256
I cannot find that attaching a scalp
    clip could have revealed normal fetal heart activity before 0341 and there is
    no credible evidence supporting a case for application of a scalp clip before
    0341.

257
Even Dr. Harman stops short of
    saying that fetal head compression, cord prolapse or both occurred only after
    0341; as such,
I must find that the deep and prolonged decelerations of the
    fetal heart that occurred between 0341 and 0349 (during the time that Dr.
    Librach attempted vacuum extraction) would have occurred even if Dr. Librach
    had opted to delay vacuum and to apply a scalp clip
.

258
It is sheer speculation to predict
    whether Robbie's outcome would have been different, let alone more favourable,
    had this theoretical alternative path been followed.

259
In my view, the asphyxial insult
    that lead to Robbie's brain injury incepted shortly after Kimberly entered the
    second stage of labour and began pushing, around 0330.
50
The insult produced the deep
    decelerations that Dr. Librach and Nurse Lee observed, two of which Nurse Lee
    also recorded.

FN 50
Drs. McGrath and Davies agree that the
    heart rate pattern changed suddenly. Dr. McGrath concluded, in retrospect, that
    the sudden change began shortly after Kimberly started to push and Robbie's
    injuries began during the last 30 minutes before his birth. [Emphasis added.]

[93]

On appeal, the appellants argued that all three components of the trial
    judges reasons on causation were in error. In our view, it is sufficient to
    dispose of the appeal by addressing only the last two components.

[94]

Assuming that it was open to the trial judge to find that the asphyxial
    insult began around 3:30 a.m., in our view, the evidence at trial did not
    support the trial judges finding that the bradycardia that began around 3:41
    a.m. would have happened in any event.

[95]

The trial judges finding that the bradycardia would have happened in
    any event appears to be premised solely on his conclusion that the asphyxial
    insult began shortly after 3:30 a.m. However, that chain of reasoning ignores
    undisputed evidence that Robbies heart rate became bradycardic suddenly and
    unexpectedly when the vacuum was applied. Significantly, it also ignores expert
    evidence that pulling on a prolapsed cord will quite likely cause a
    bradycardia.

[96]

For example, Dr. McGrath testified that, where there is an occult cord
    prolapse, pulling on the fetal head will most likely compress the umbilical cord
    and cut off circulation to the fetus. According to Dr. Davies, the fetus
    responds to oxygen deprivation with a lower heart rate. Bradycardia can occur
    when the fetus is either lower in the pelvis, or the umbilical cord becomes
    completely or almost completely occluded. In cross-examination, Dr. Davies
    agreed with a suggestion that it was his opinion
that the
    fetal heart rate fell as it did after the vacuum was applied because of the
    traction that occurred with the use of the vacuum  traction that compressed
    the umbilical cord further than any

compression that had occurred prior to the vacuum.  In his factum on
    appeal, Dr. Librach did not dispute the evidence that the vacuum likely
    compressed the cord further.

[97]

In our view, the timing of the bradycardia and the expert evidence we
    have referred to suggests the likelihood that the bradycardia was triggered by
    the application of the vacuum.

[98]

Moreover, while there was some evidence that a bradycardia could have
    occurred at some point in any event because of the cord prolapse and the
    progress of labour
[7]
,
    that evidence does not go far enough to support a finding that it was
likely
that a bradycardia would have occurred at 3:41 a.m.; nor does it support a
    finding that a bradycardia was inevitable prior to Robbies birth.

[99]

Once the finding that the bradycardia would have happened in any event
    is removed, it is not clear to us what finding the trial judge would have made
    concerning causation. If Dr. Librach breached the standard of care by applying
    the vacuum instead of applying a scalp clip, the question becomes would
    applying the scalp clip have made any difference.

[100]

Dr.
    Librachs evidence was that he decided to apply the vacuum extractor because he
    thought the fetal heart rate was concerning. Accepting that the asphyxial insult
    began around 3:30 a.m., the trial judge had to determine whether a applying scalp
    clip, which would have produced a clear fetal heart rate tracing, would have
    revealed a fetal heart rate that would have been more serious than concerning
    and that would have led Dr. Librach to choose an alternative form of operative
    delivery, namely forceps or c-section.
[8]

[101]

Dr.
    McGrath testified that it would take at least three to four minutes after
    making the decision to apply a scalp clip to obtain sufficient information to
    make a decision on an appropriate course of action. That means that if Dr.
    Librach had applied the scalp clip at 3:41 a.m., he could have been in a
    position to make a decision as early as 3:44 or 3:45 a.m.

[102]

Would Dr.
    Librach have made the decision to move to an alternative form of operative delivery
    instead of attempting a vacuum delivery if he had applied a scalp clip?

[103]

In our
    opinion, that was a question for the trial judge to answer taking account of
    the whole of the evidence and his finding that the asphyxial insult began
    around 3:30 a.m. Had he chosen an alternative form of operative delivery,
    bradycardia may not have occurred in the relevant interval  or, it may have
    occurred closer to the time of Robbies birth. Moreover, had Dr. Librach made the
    decision to use forceps, the total time to delivery could have been reduced by
    as many as five minutes. All of these factors could have reduced the risk or
    severity of injury to Robbies brain.

[104]

In all the
    circumstances, we are not persuaded that the trial judges conclusion on
    causation would necessarily have been the same but for his erroneous finding
    that the bradycardia that occurred at 3:41 a.m. would have happened in any
    event.

[105]

In the
    result a new trial is required.

3) The Appellants Appeal
    from the Dismissal of their Claims against Nurse Lee and the Hospital

[106]

At
    paragraph 254 of his reasons, under the heading Allegations Against the
    Defendants, the trial judge wrote:

Further, as I have found that Dr. Librach's
    clinical judgment was sound and in accord with applicable standards of
    obstetrical practice, the notion floated by Nurse Wood [an expert witness for
    the appellants] that Nurse Lee should have offered a scalp clip to Dr. Librach
    and/or objected to or enquired into the medical reasons supporting Dr.
    Librach's clinical decision are without merit.

[107]

The
    appellants argue that because the trial judge linked his findings concerning
    the liability of Nurse Lee and the Hospital to his finding concerning Dr.
    Librachs liability, if a new trial is ordered in relation to their claim
    against Dr. Librach, a new trial is required in relation to their claims
    against the Hospital and Nurse Lee.

[108]

We
    disagree. The trial judge made the finding set out above after making the
    following specific findings negating liability on the part of Nurse Lee (and
    therefore the Hospital):

·

Nurse Lee maintained vigilant overview of Ms. Long-Suwarys
    contractions and of the fetal heart activity;

·

the evidence did not support the appellants contention that
    additional resuscitative measures should have been undertaken, beyond the
    application of the wedge, a measure undertaken by Nurse Lee at 3:37 a.m.; and

·

the evidence did not support a finding that Nurse Lee departed
    from standards of nursing practice at or before the time Dr. Librach decided to
    apply and then applied the vacuum extractor, as these were medical matters and
    not within the scope of nursing practice.

[109]

Particularly
    in the light of the trial judges specific finding that the evidence did not
    support a finding that Nurse Lee departed from standards of nursing practice at
    or before the time Dr. Librach decided to apply and then applied the vacuum
    extractor, the finding set out above was unnecessary to the trial judges
    conclusion that the claims against Nurse Lee and the Hospital should be
    dismissed. We do not give effect to this ground of appeal.

IV.      The Trial Judges Discussion of the Expert Evidence

[110]

Before
    concluding our reasons, we wish to comment briefly on one aspect of the trial
    judges discussion of the expert evidence.

[111]

At the
    outset of his analysis, at paras. 174 to 183 of his reasons, the trial judge
    expressed his chagrin at the adversarial approach to trial preparation adopted
    by the experts in this case. He noted that, during the course of the trial,
    particularly during cross-examination, differences of expert opinion narrowed
    and large pools of overlapping opinion emerged.

[112]

The trial
    judge opined that opposing experts should meet before trial and attempt to
    assist the trial judge by narrowing their differences to the extent possible
    and, in any event, to identify the true and meaningful differences at issue.

[113]

In one key
    paragraph of this section of his reasons, the trial judge expressed his
    frustration at the experts failure to focus their evidence concerning the standard
    of care issues:

180
A central issue and perhaps the
    central issue in this case is whether Dr. Librach acted precipitously in
    applying the vacuum where and in the circumstances he did.
Had the experts
    met and discussed this case before trial, that issue would undoubtedly have
    arisen and a focus could/should have been placed on how to help the court to an
    understanding of the issue and the medical science pertaining to it
. Drs.
    McGrath and Davies each practice obstetric medicine in the same hospital in
    Kingston.
Their views on this issue differ and their experience regarding
    the time needed to deliver a baby at their hospital differed and yet they chose
    not to discuss their differences before attending to share them with this
    court; incredible
! [Emphasis added.]

[114]

In our
    view, this criticism of the expert witnesses was unfair and somewhat at odds
    with the trial judges other findings about Drs. McGrath and Davies. We do not agree
    with the trial judges criticisms of the expert witnesses in this case because
    they failed to meet with each other and review the issues prior to the trial.
    While it would no doubt be open to counsel to agree on such an approach, and
    while such an approach might well be desirable in some cases, that is a
    decision for counsel, not for the experts, to make.

V. Conclusion

[115]

Based on
    the foregoing reasons, we allow the appeal with respect to the appellants
    claim against Dr. Librach and order a new trial and we dismiss the appeal with
    respect to the appellants claim against Nurse Lee and the Hospital.

[116]

Nurse Lee
    and the Hospital are entitled to costs of the appeal if demanded. If the
    parties are unable to agree on any such costs, they may make brief written
    submissions to the panel.

[117]

The
    appellants may file brief written submissions on costs with respect to
    Dr. Librach within 15 days from the date of release of these reasons and
    Dr. Librach may respond within 15 days thereafter.

Signed:           Janet Simmons
    J.A.

Robert P.
    Armstrong J.A.

H. S. LaForme J.A.

RELEASED:  JS October 31, 2011

Appendix A

The appellants raised six main issues on appeal:

(1)

Did the trial judge err in law by failing to provide adequate reasons
    for his preference of Dr. Librachs evidence at trial to his conflicting
    evidence on discovery?

(2)

Did the trial judge make a palpable and overriding error in finding that
    Dr. Librach was well aware of fetal heart activity as a result of the
    visual and audio output from the monitor despite having found that the output
    from the fetal heart rate monitor, both visual and audible, was
    uninterpretable?

(3)

Did the trial judge make a palpable and overriding error by disregarding
    the expert evidence on the state of the fetal heart rate in the minutes before
    the vacuum was applied?

(4)

Did the trial judge err in law by failing to determine the standard of
    care in this case?

(5)

Did the trial judge make a palpable and overriding error in finding that
    Robbie's injuries were caused by an insult that began at 3:30 a.m., and that
    Dr. Librachs response to the situation therefore neither caused nor
    contributed to the insult and/or the injury?

(6)

Did the trial judge err in failing to decide whether Robbies delivery
    involved risk factors that Dr. Librach had to take into account?

In advancing their arguments concerning these issues,
    the appellants also submitted that the trial judge decided the case
    retrospectively; made contradictory findings; made palpable and overriding
    errors of fact; drew analysis-free conclusions; and either failed to address or
    misunderstood various aspects of the appellants case.

[1]
The Suwarys claims against Drs. Ferguson and Unger were dismissed prior to
    trial.

[2]
This type of insult involves a very abrupt and almost complete interruption of
    the blood supply to the fetal brain.

[3]
The trial judge said prolapse describes a squeezing or compression of the
    umbilical cord such that the flow of blood through the cord  is impeded. He
    explained that occult describes a condition that cannot be ascertained from a
    physical examination of the patient. The evidence at trial indicated that the
    fetal heart rate declines in response to oxygen deprivation, which is caused by
    a reduced blood flow, and that this response varies in relation to the degree
    of compression.

[4]

Nursing notes revealed the following fetal heart rates in the
    interval between 3:41 and 3:49 a.m.: 3:41 FH down to 55 up to 140-145; 3:42 FH
    52 per 60 seconds Patient pushing with contractions 2-3 min; 3:43 FH 68  70
    per 60 seconds; 3:44 FH 60  62 pushing; 3:45 FH increasing 64 up to 124; 3:47
    FH down to 68 up to 110 pushing; 3:48 FH 85  110; 3:49 vacuum removed V/E by
    Dr. Librach OP position.

[5]

ROP means Right Occiput Posterior or face-up position.

[6]

ROA means Right Occiput Anterior or face-down position.

[7]
Dr. McGrath testified that one of the risks of cord prolapse if you do nothing
    is that nature itself causes compression of the cord and can compromise gas
    exchange. He also stated [y]ou will certainly aggravate it when you pull on
    the head, but he did not rule out the prospect that a bradycardia would have
    occurred in any event.

In addition, Dr. Macnab (a paediatrician and
    neonatologist called by the appellants) testified that where there are cord
    problems, the progress of labour can worsen cord compression.  According to Dr.
    Davies, the fetal heart rate returned to normal after Dr. Librach performed the
    forceps rotation, likely because the forceps rotation alleviated the cord
    compression and restored blood flow to the fetus.

[8]
For example, Dr. McGrath testified that if the occult cord prolapse occurred
    before the vacuum, a scalp clip probably would have shown the fetal heart
    changes that accompany the early stages of severe cord compression, which tend
    to be deep, prolonged, variable decelerations.


CITATION:
Tut v. RBC General Insurance Company, 2011
          ONCA 644

DATE: 20111017

DOCKET: C53375

COURT OF APPEAL FOR ONTARIO

Weiler, Cronk and Watt JJ.A.

BETWEEN

Nagraj Singh Tut and Gurmeet Kaur Tut

Applicants (Respondents)

and

RBC General Insurance Company

Respondent (Appellant)

and

Coseco
          Insurance Company

Intervenor (Intervener)

John D. Dean and Amber Small, for the appellant

David A. Zuber and Joseph Villeneuve, for the respondents

Kerri Kamra, for the intervener

Heard: September 6, 2011

On appeal from the order of Justice
          E. Eva Frank of the Superior Court of Justice, dated February 1, 2011, with
          reasons reported at 2011 ONSC 823.

Weiler J.A.:

BACKGROUND

[1]

The overarching issue in this appeal is whether the
    application judge erred in granting a declaration that the appellant, RBC
    General Insurance Company (RBC), has a duty to defend and indemnify the
    respondents, Nagraj Singh Tut (Nagraj) and Gurmeet Kaur Tut (Gurmeet), in
    two actions arising out of a motor vehicle accident.  A brief contextual
    description is warranted to appreciate the arguments.

[2]

On the morning of June 23, 2007, Nagraj asked his
    mother, Gurmeet, if he could use her car to drive some friends home.  The
    friends had spent the previous night at the Tut familys house celebrating Nagrajs
    20th birthday with him.

[3]

The accident occurred while Nagraj was driving on
    the highway that morning.  At approximately 8:51 a.m., the car went off the road
    as Nagraj was attempting to pass another car using the gravel shoulder.

[4]

Although no charges were laid as a result of the
    accident, the St. Michaels Hospital Laboratory Results Report indicated that Nagraj
    had a blood alcohol concentration of 26.8 mmol/L at approximately 10:45 a.m. on
    the date of the accident.  Nagraj, the holder of a G2 drivers licence, was not
    permitted to operate a motor vehicle with a blood alcohol concentration greater
    than zero: see
Drivers Licences
,

O. Reg.
    340/94, s. 6(1), enacted pursuant to the
Highway Traffic Act
,

R.S.O.
    1990, c. H.8 (
HTA
).

[5]

The passengers in Gurmeets car subsequently sued
    Nagraj and Gurmeet in two actions for damages for the injuries they sustained
    in the accident.

[6]

Both Nagraj and Gurmeet were covered by an RBC
    automobile insurance policy.  However, their coverage was subject to a statutory
    condition that states, The insured shall not drive or operate or permit any
    other person to drive or operate the automobile unless the insured or other
    person is authorized by law to drive or operate it: see
Statutory
    Conditions - Automobile Insurance
, O. Reg. 777/93, s. 4(1), enacted
    pursuant to the
Insurance Act
, R.S.O. 1990, c. I.8.

[7]

RBC denied coverage to Nagraj because, at the time
    of the accident, he was not authorized by law to drive as his blood alcohol
    content was greater than zero.  RBC denied coverage to Gurmeet because she
    permitted Nagraj to drive on the morning of the accident when she knew or ought
    to have known that he was not authorized by law to do so.  Thus, RBC was not
    obliged to provide counsel to defend them in the damages actions.

[8]

The respondents successfully brought an application
    for insurance coverage.  The application judge agreed that RBC could not deny
    coverage to the respondents on the basis of statutory condition 4(1).  As all
    the subsidiary grounds of appeal arise from the application judges reasons, I
    will summarize them before turning to the issues and my analysis of them.

THE APPLICATION JUDGES REASONS

[9]

The essence of the application judges reasons is
    as follows.  Statutory condition 4(1) precludes insurance coverage for Nagraj if
    he was not authorized by law to drive.  Nagraj would not be authorized by law
    to drive if he contravened s. 6(1) when he drove with a blood alcohol
    concentration greater than zero.  Section 6(1) creates a strict liability
    offence, so will not be contravened if Nagraj took all reasonable care in the
    circumstances.  Accordingly, if reasonable care is established, statutory
    condition 4(1) will not apply to preclude insurance coverage for Nagraj.

[10]

Although the respondents admitted that Nagraj
prima
    facie
contravened s. 6(1) by driving with a blood alcohol content greater
    than zero, the application judge found that Nagraj had a reasonable and honest
    belief that his blood alcohol content was zero when he awoke the morning after
    his party. On the basis of the evidence of those at the party, Nagraj had six
    to nine hours of sleep that night.  His belief that he was qualified to
    drive was a reasonable mistake of fact.

[11]

RBC relied on the report of the toxicology expert,
    Dr. Kalant, to support the conclusion that, based on Nagrajs height and
    weight, it would not have been reasonable for Nagraj to believe that his blood
    alcohol level did not exceed zero per cent that morning.  However, the
    application judge discounted the report on the basis that Dr. Kalant used the
    wrong height and weight for Nagraj in his calculations and based his
    calculations on Nagraj having had several hours of sleep instead of the six
    to nine hours he did have.

[12]

In the case of Gurmeet, statutory condition 4(1)
    precludes insurance coverage if Gurmeet permitted Nagraj to drive when he was
    not authorized by law to do so.  The application judge held that Gurmeet was
    not in breach of the statutory condition.  RBC did not establish that Gurmeet
    knew or ought to have known, under the circumstances, that she was permitting
    Nagraj to drive when he was not authorized by law to do so. Gurmeet questioned
    Nagraj about the party and confirmed that he had slept that night. She had
    previously instructed him not to drive after drinking and there is no evidence
    that he ever failed to comply with that rule. She saw nothing either in the
    house or in her sons manner that would make it necessary for her to question
    him regarding the amount of alcohol he had consumed the night before.  The
    application judge held that Gurmeet acted reasonably in the circumstances.

[13]

Overall, the application judge held that the
    respondents were not excluded from coverage under the RBC automobile insurance
    policy.

THE ISSUES

[14]

RBCs appeal seeks to have the application judges decision
    set aside and the application for coverage dismissed with costs or,
    alternatively, requests a new hearing.  RBC alleges that the application judge made
    the following errors:

(a)
She applied a test of strict liability
    rather than absolute liability to determine whether Nagraj breached s. 6(1).

(b)
In the event s.
6(1) is a strict liability offence, she
    placed the onus of proof on RBC rather than Nagraj after RBC established a
prima
    facie
case.

(c)
          She placed the onus of proof on RBC rather than Gurmeet after RBC
    established a
prima facie
case.

(d)
          She misapprehended and, consequently, discounted the expert opinion of
    Dr. Kalant.

(e)
          She misapprehended the evidence of Gurmeet.

[15]

For the reasons that follow, I would dismiss the
    appeal.

DISCUSSION AND ANALYSIS

1.
Did the application judge err in applying a test of strict
    liability rather than absolute liability to determine whether Nagraj breached
    s. 6(1)?

[16]

RBC acknowledges that there is a presumption that
    public welfare offences are strict liability offences. That is, once a
    contravention of the legislation has been proven, a defence of due diligence,
    that the person took all reasonable steps to avoid the contravention, is
    available. While it is essential for society to maintain high standards of
    public safety through effective enforcement, there is general revulsion against
    punishing the morally innocent.

[17]

As set out in
R. v. Kanda
(2008),

88
    O.R. (3d) 732 (C.A.)
, at para. 19, four factors must be
    considered in determining whether an offence is one of absolute liability, for
    which only the contravening act need be proven, or of strict liability: (1) the
    overall regulatory pattern; (2) the penalty; (3) the precision of the language
    used; and (4) the subject-matter.

[18]

RBC argues that s. 6(1) is an absolute liability
    offence based on the four
Kanda
factors:

1.         The
    overall regulatory scheme is to limit and prevent impaired driving.

2.         The
    penalty is not imprisonment, which would exclude the possibility of the offence
    being an absolute liability offence, but a suspension of the drivers licence.

3.         Section
    6(1) uses the word must in the first of its conditions: The novice drivers
    blood alcohol concentration
must
be zero at all times (emphasis added).
     The language in s. 6(1) is similar to the no person shall or every driver
    shall phraseology used in some absolute liability offences.

4.         The
    subject matter  preventing inexperienced drivers from drinking and driving  and
    legislative intent of zero tolerance are consistent with absolute liability
    offences.

[19]

In
Kanda
,

MacPherson J.A. held that the
    offence of failing to ensure that a passenger under 16 years old properly wears
    a seat belt under s. 106(6) of the
HTA
was a strict liability, and not
    an absolute liability, offence.  In that case, a child passenger was involved
    in creating the violation by undoing his seat belt.  In concluding that the
    offence was one of strict liability, a factor the court considered was that the
    violation may not result directly from the drivers own conduct.

[20]

RBC submits that a violation of the s. 6(1)
    requirement for a blood alcohol content of zero can only arise from the
    drivers own conduct and that, consequently, s. 6(1) ought to be an absolute
    liability offence.  That is simply not the case.  For example, in
R. v.
    Maharaj
(2010), 98 M.V.R. (5th) 316 (Ont. C.J.), the accused probationary
    driver consumed a soft drink that, unknown to him, had been adulterated with
    vodka.  Thus, conduct other than that of the driver can contribute to a
    violation of the zero blood alcohol content requirement.

[21]

RBC relies on two recent cases which held that s.
    6(1) is an absolute liability offence.  Neither case assists RBC.

[22]

The first case,
Maharaj
,

refers to
    this courts decision in
Kanda
, but does not correctly apply it.  The
    court in
Maharaj
takes into consideration the public safety goal of the
    legislation without engaging in any real weighing of societys revulsion
    against punishing the morally innocent.  The latter is why the law recognizes a
    presumption against absolute liability.  Instead,
Maharaj
places
    emphasis on the fact that driving is a privilege, and on ease and efficiency of
    enforcement.  In my opinion, it is wrongly decided.

[23]

The second case RBC relies on,
R. v. Nyaata
,

2005 ONCJ 454, states that the offence of having a blood alcohol content
    greater than zero is an absolute liability offence.  However, the court also held
    that the evidence of a strong odour of alcohol on the accuseds breath and the
    fact he held a G2 licence constituted a
prima facie
case that was
    rebuttable but, as the defence had called no evidence, a conviction would be
    registered.  Holding that the violation of s. 6(1) can be rebutted is
    inconsistent with the offence being one of absolute liability.  This case, too,
    is of no assistance to RBC.

[24]

Applying the factors in
Kanda
to this case,
    I make the following observations:

1.

In
Kanda,
this court was concerned with the same overall
    legislative scheme as here, namely, the
HTA,
and it held that the
    overall regulatory pattern of the
HTA
is neutral.

2.

The penalty for a violation of s. 6(1) is a suspension of the offending
    drivers licence.  This penalty is more severe than the penalty of a modest
    fine for the seat belt infraction in
Kanda
.  This factor tilts more in
    favour of the offence in this case being one of strict liability as compared to
Kanda
.

3.

Some of the sections in the
HTA
create an absolute liability offence
    by specifically excluding a due diligence defence.  The language of s. 6(1) does
    not specifically preclude a due diligence defence.  Section 6(1) also uses the
    mandatory word must but, as noted at para. 38 of
Kanda
, the case law
    does not support the conclusion that mandatory language necessarily results in
    absolute liability.

4.

The important public purpose in
Kanda
was, as here, road safety
    and protection of users of the road.  The court in
Kanda
held that
    classification of the offence as one of strict liability was an appropriate
    balance between encouraging drivers to be vigilant about safety and not
    punishing those who exercise due diligence.  I would reach the same conclusion
    in this case.

[25]

Thus, the application of the four
Kanda
factors
    leads me to conclude that the presumption against the offence being one of
    absolute liability has not been rebutted.  The offence is one of strict
    liability.

[26]

My conclusion is supported by the decision in
R.
    v. Sault Ste Marie,
[1978] 2 S.C.R. 1299.  At pp. 1316-17, the Supreme
    Court of Canada commented favourably on a decision holding that careless
    driving is an offence of strict liability where it is open to an accused to
    show that he had a reasonable belief in facts which, if true, would have
    rendered the act innocent.

[27]

The application judge did not err in characterizing
    the offence as one of strict liability.

2.         Did
    the application judge err in placing the onus of proof on RBC rather than
    Nagraj after RBC established a
prima facie
case?  Did the application
    judge err in misapprehending and improperly discounting the evidence of Dr.
    Kalant?  Did Nagraj satisfy the onus on him?

[28]

RBC had the onus of proving a violation of the statutory
    conditions of the insurance policy.  Once a violation of s. 6(1) was
    established, the onus then shifted to Nagraj to show that he had a reasonable
    belief that his blood alcohol content was zero.  RBC submits that Nagraj failed
    to satisfy this onus given that he had no recollection of the morning of the
    accident, he stated to the adjuster that he intended to consume more alcohol on
    the night of his birthday than he normally would and, when tested approximately
    two hours after the accident, he had a blood alcohol content of 1.5 times the
    legal limit.

[29]

This submission ignores the deference due to the application
    judges finding that Nagraj had a reasonable belief that his blood alcohol
    content was zero.  That finding is supported by the witnesses who observed
    Nagraj on the morning of the accident and who saw no evidence that he was
    impaired by alcohol, as well as by the fact that Nagraj had slept for a number
    of hours before driving.

[30]

RBC also relies on the report of Dr. Kalant, a
    toxicologist, and submits that the application judge misapprehended the report in
    discounting Dr. Kalants opinion.  Dr. Kalants opinion was that, based on the
    St. Michaels Hospital laboratory results, Nagraj probably had at least 10
    standard drinks over the course of his birthday party and that, notwithstanding
    several hours of sleep, he would still have exhibited signs of alcohol in his
    system, such as an odour on his breath and a tired appearance.

[31]

Dr. Kalants report was based on Nagraj being 59
    and 160 pounds, whereas in his cross-examination Nagraj testified he was 511
    and about 200 pounds, a little heavier than at the time of the accident.
    Besides the discrepancy in height and weight, the application judge found the
    amount of sleep Nagraj had was between six and nine hours, and observed that
    this was less than the amount normally understood by a reference to several
    hours.  RBC takes issue with this latter finding and submits that the
    application judge ought to have preferred other evidence that would lead to the
    conclusion that the range was between five to eight hours.  Overall, RBC submits
    that there was no basis for the application judge to take judicial notice that
    these differences would have substantially impacted the opinion of Dr. Kalant.

[32]

The evidentiary point RBC wished to gain from Dr.
    Kalants report was that signs of alcohol in Nagrajs system would have been observable
    to a casual observer.  Dr. Kalant agreed, both in his report and in his
    cross-examination, that it was difficult to offer an opinion on this point.

[33]

Dr. Kalants concession makes sense.  There are a
    number of factors that could have affected Nagrajs breath or appearance of
    alertness about which there was no evidence, such as whether Nagraj had used
    mouthwash, showered, or consumed coffee on the morning of the accident.

[34]

It is trite law that a court is entitled to accept
    all, some, or none of an expert opinion.  Dr. Kalant was working with an
    inaccurate and incomplete set of facts.  Once that was established, the
    application judge was certainly entitled to place less weight on his opinion.  More
    importantly, Dr. Kalants report was inconclusive.  It failed to establish that
    it would have been apparent to a reasonable person that Nagraj had so much to
    drink the night before that he could not drive in the morning.  The question of
    whether Nagrajs ability to drive was impaired by alcohol is one of fact and
    non-expert witnesses may give evidence as to the degree of a persons
    impairment:
R. v. Graat
,

[1982] 2 S.C.R. 819.  The application
    judge was entitled, as she did, to prefer the evidence of witnesses who had
    seen and spoken with Nagraj on the morning of the accident.

[35]

The application judge found as a fact that Nagraj
    had a reasonable belief he had zero blood alcohol content.  This finding was not
    based on any material misapprehension of the evidence and is entitled to
    deference.  This finding discharged the onus on Nagraj.  Accordingly, after
    making this finding in para. 12 of her reasons, the application judge was
    entitled to comment, as she did in the next paragraph of her reasons, that RBC
    had not met the onus of establishing that coverage for Nagraj was excluded.

3.       Did
    the application judge err in placing the onus of proof on RBC rather than
    Gurmeet after RBC established a
prima facie
case? If the onus was on
    Gurmeet, did she satisfy this onus?

[36]

RBC submits that by simply allowing Nagraj to drive
    her car, Gurmeet was
prima facie
in breach of statutory condition 4(1)
    when Nagraj drove the car with a blood alcohol content greater than zero,

and
    that the onus then shifted to her to show that she had taken all reasonable
    steps to see that the statutory condition was not contravened.  Referring to
    paras. 18 and 25 of the application judges reasons, RBC submits that the
    application judge improperly shifted the onus to RBC.

[37]

RBCs submission assumes it made out a
prima
    facie
case against Gurmeet.  A
prima facie
breach by Nagraj, as the
    driver, was not an automatic
prima facie
breach by Gurmeet, as the owner
    of the car.  As counsel for RBC agreed in oral argument, whether the driver is
    in breach of statutory condition 4(1) is a separate question from whether the
    owner of the car is in breach.  See, for example,
Campos v. Aviva Canada
    Inc.
(2006), 38 C.C.L.I. (4th) 218 (Ont. S.C.), at paras. 14-15. As indicated,
    statutory condition 4(1) requires that the insured not drive or operate or
    permit any other person to drive or operate the automobile unless the insured
    or other person is authorized by law to drive or operate it.  Nagraj was
prima
    facie
in breach by driving with a blood alcohol content greater than zero.
    For Gurmeet to be
prima facie
in breach, RBC must prove that Gurmeet permitted
    Nagraj to drive with a blood alcohol content greater than zero.

[38]

In
Co-Operative Fire & Casualty Co. v.
    Ritchie
,

[1983] 2 S.C.R. 36, the Supreme Court considered the
    predecessor to statutory condition 4(1), which also used the word permit.  The
    Supreme Court held, at pp. 44-45, [I]f an insured who has given someone an
    unqualified permission to drive his car
has no reason to expect that the car
    will be driven...in contravention of the policy terms
, then...he cannot be
    said to have permitted [the contravening] use within the meaning of the
    statutory condition and he cannot therefore be made liable to his insurer (emphasis
    added).  The word permits in the context of statutory condition 4(1) connotes
    knowledge, willful blindness, or at least a failure to take reasonable steps to
    inform ones self of the relevant facts:
Miller v. Carluccio
(2008), 91
    O.R. (3d) 638 (C.A.) at para. 6.

[39]

The Supreme Court held, at pp. 43-44 of
Co-Operative
    Fire
, that the proper test to be applied to determine whether an insured permitted
    his or her vehicle to be operated in breach of the statutory condition is what
    the insured knew, or ought to have known, under all the circumstances.  In the
    context of this case, the test is whether Gurmeet knew or ought to have known
    under all the circumstances that Nagraj was not authorized to operate her car
    because he had a blood alcohol content greater than zero.

[40]

RBC had the onus of establishing that this test for
prima facie
breach was met.  At para. 25 of her reasons, the application
    judge held that RBC did not discharge its onus.  There is no basis on which to
    interfere with this conclusion.

[41]

The application judge found that Gurmeet acted
    reasonably in the circumstances.  RBC submits she misapprehended Gurmeets
    evidence.  Gurmeets evidence on cross-examination was that she and her husband
    did not see anyone drinking, or any alcoholic beverages at all, before they
    left the house around 9:30 or 10 p.m. on the night of the party.  She and her
    husband returned to the house the morning after Nagrajs birthday party and she
    started to clean up the kitchen.  At that point, she saw no alcohol bottles or
    shot glasses.  She spoke with Nagraj at some point in the morning from a
    distance of between six to eight feet.  (Dr. Kalants evidence was that she
    would have had to have been within three feet to smell alcohol on Nagraj.)  Her
    evidence was that her son did not smell of alcohol and did not look tired; his
    hands were not shaking, his voice was not hoarse, and his speech was not
    impaired.  Although Nagraj said that he intended to drink more than usual on
    the night of the party, there is no evidence that he conveyed this intention to
    his mother.  None of the other witnesses observed any signs of alcohol in
    Nagraj on the morning after his party.  The application judge did not
    misapprehend Gurmeets evidence.  Her finding that Gurmeet acted reasonably in
    the circumstances is entitled to deference.

[42]

RBC also submits that Gurmeet was required to make
    further inquiries of her son and the fact she did not do so means she failed to
    take all reasonable steps to see that the statutory condition was not
    contravened.  In the factual circumstances of this case, Gurmeet had no reason
    to make further inquiry than she did.  The application judge found, in para. 21
    of her reasons, that before Nagraj asked whether he could use Gurmeets car to
    drop off his friends, Gurmeet asked him about his party and confirmed that he
    had slept the night before.  There was no evidence that Nagraj had ever
    disobeyed her previous instructions about not drinking and driving. In the
    circumstances, that Gurmeet did not make further inquiry was not a failure to
    take all reasonable steps on her part.  Nothing in Nagrajs manner and nothing
    Gurmeet saw gave her reason to expect that the car would be driven in
    contravention of the insurance policy.

CONCLUSION AND COSTS

[43]

For the reasons given, I would dismiss the appeal.  I
    would award costs of the appeal to the respondents, without reference to any
    costs respecting the underlying actions, in the amount of $15,000, inclusive of
    all applicable taxes and disbursements.  I would award no costs to the intervener.

RELEASED:  Oct. 17, 2011                                                            Karen
    M. Weiler J.A.

KMW                                                                                I
    agree E.A. Cronk J.A.

I
    agree David Watt J.A.