COURT OF APPEAL
    FOR ONTARIO

CITATION: Sacks v. Ross, 2017 ONCA 773

DATE: 20171005

DOCKET: C61542

Lauwers, Hourigan and Benotto
    JJ.A.

BETWEEN

Jordan Sacks, Lisa
    Sacks, Ryan Sacks, by his Litigation Guardian Lisa Sacks, Alexis Sacks, by her
    Litigation Guardian Lisa Sacks, Emma Sacks, by her Litigation Guardian Lisa
    Sacks, Michael Sacks and Annette Sacks

Plaintiffs
    (Appellants)

and

Theodore Ross, Aliyah Amirali Kanji, Anna Maureen Bendzsak, Jeffrey
    Singer
, John Doe I, John Doe II,
Pamela Raye-Ilogu,
    X. Li
, T. Hollowitch, Jane Doe I, Jane Doe II and
Sunnybrook
    Health Sciences Centre

Defendants (
Respondents
)

Gavin MacKenzie and Brooke
    MacKenzie, for the appellants

Frank McLaughlin, Dorothy E.
    Charach and Ljiljana Stanic,

for the respondents Theodore Ross, Aliyah
    Kanji, Anna Maureen Bendzak and Jeffery Singer (the respondent physicians)

Anna L. Marrison, William
    D.T. Carter and John M. McIntyre, for the respondents Sunnybrook Health
    Sciences Centre, Pamela Raye-Ilogu and X. Li (the respondent hospital)

Heard: May 17, 2017

On appeal from the judgment of Justice D
arla
    A. Wilson of the Superior Court of Justice, sitting with a jury, dated December
    7, 2015
.

Lauwers J.A.

A.

Overview

[1]

This was a jury trial of an action for medical negligence. Jordan Sacks
    (who appeals along with his wife Lisa, his children Ryan, Alexis and Emma, and
    his parents Michael and Annette), suffered serious injuries arising from
    complications after routine bowel surgery. An anastomotic leak occurred after
    the surgery, spilling bowel contents into Mr. Sackss abdominal cavity. (It is
    not argued that the leak was the result of negligence.) An anastomotic leak
    must be treated quickly to prevent infection, sepsis and septic shock, but the
    discovery of the leak was delayed. By the time treatment started, Mr. Sacks was
    in septic shock. He was then in a coma for weeks and ultimately required
    amputation of both legs below his knees and all of his fingertips. These were
    horrifying injuries.

[2]

At trial, the appellants asserted that the delay in diagnosis and
    treatment caused Mr. Sackss injuries, and was the result of cumulative errors made
    by the respondents, a team composed of doctors and nurses who treated Mr. Sacks
    after surgery, along with Sunnybrook Hospital.  Their negligence caused his
    injuries.

[3]

The respondents answered that any delay in diagnosis and treatment did
    not cause Mr. Sackss injuries. The delay was not material to the outcome
    because Mr. Sacks contracted a rare, unrecognized aggressive necrotizing
    infection (flesh eating disease) in his right lower back, which could not have
    been diagnosed or treated when it first arose. His injuries were unavoidable
    and not the result of anyones breach of a standard of care.

[4]

While the jury found five of the defendants breached elements of their
    respective standards of care, they did not find that any of the breaches caused
    the injuries at issue. The action was dismissed.

[5]

According to the appellants,
the trial proceeded
    on a mistaken understanding of the appropriate causation test to be applied in
    a case of delayed diagnosis and treatment. This mistake was reflected in the
    jury questions and instructions. Accordingly, the jurys answers were ambiguous
    and could not form a safe basis for judgment.

[6]

The respondents submit, to the contrary, that the trial
    judge did engage the correct causation test and formulated appropriate jury
    questions and instructions. The jury had before it two clearly opposed explanations
    of causation, and simply found the evidence and the arguments advanced by the
    respondents to be more persuasive. The jurys answers were clear and not ambiguous.

[7]

This appeal concerns the proper test for causation in delayed diagnosis
    medical negligence cases involving multiple tortfeasors. The appellants submit
    that in such cases this court should require trial judges to use a global but
    for test for causation. The respondents vigorously resist the imposition of a
    global but for test, which they describe as a novel test for causation. They
    say that the positions taken by the appellants in the court below preclude the
    relief sought on appeal.

[8]

I would dismiss the appeal. In my view the jury
    clearly and unambiguously accepted the defence evidence on the cause of Mr.
    Sackss injuries. As I will explain, while I agree with the appellants that the
    jury questions and instructions were problematic, the deficiencies in them did
    not affect the outcome.

B.

Procedural Issue

[9]

The respondents correctly point out that this court is reluctant to
    consider new arguments on appeal:
Kaiman v Graham
, 2009 ONCA 77 at
    para. 18. They argue that the appellants trial counsel at no time argued that
    the jury should be asked a causation question globally in relation to all
    defendants. Nor did he raise this concern after reading the trial judges draft
    jury charge or hearing the charge.

[10]

However,
    I engage with the global but for test issue in this appeal, for two reasons.
    First, from the outset the underlying question in this case was how to apply
    the but for test in cases of delayed medical diagnosis and treatment involving
    multiple defendant tortfeasors. This question was incompletely argued before
    the trial judge but the approach taken on appeal is no surprise. The appellants
    pursued the case at trial on the basis that the entire team at Sunnybrook
    Hospital was at fault. As trial counsel stated at the outset of his jury
    address jury:

Based on the evidence Im going to suggest to you that this
    represents a total failure of the entire healthcare team and all of its members
    in parts. It is a total systems failure.

The implications of this approach were not thought
    through until this appeal where it was fully argued.

[11]

Second, cases that engage jury questions, jury instructions and
    the causation test involving multiple tortfeasors do not often come to this
    court. In my view, this court has a responsibility to consider the issues and to
    provide assistance to trial judges and counsel in such cases going forward.

C.

The Facts

[12]

In
    2008, Mr. Sacks was a 36 year old married accountant who had Crohns disease
    but was otherwise in good health. A colonoscopy had previously revealed a
    narrowing of his bowel, which exposed him to the future risk of an obstruction.
    Mr. Sacks decided to have a hemicolectomy, an elective surgery that would
    remove the narrowing. He waited until after tax season to have the procedure
    performed by Dr. Theodore Ross, who was acquainted with the family of Mr. Sackss
    wife Lisa.

[13]

The
    development of an anastomotic leak, in which the sutures holding the ends of
    the bowel come apart and stool leaks into the abdominal cavity, is a recognized
    complication of a hemicolectomy and occurs in 2-5% of cases. It can be life
    threatening. The large quantity of bacteria in stool can be a source of
    infection that can, if not promptly treated, progress to sepsis, severe sepsis
    and ultimately septic shock. If a leak occurs, it is essential to control the
    source of infection as soon as possible.

[14]

Symptoms
    of anastomotic leak include abdominal distention, abdominal pain, shoulder
    pain, an increase in heart rate (tachycardia), a decline in blood pressure
    (hypotension) and variability in white blood cell count.

[15]

The
    surgery was performed on May 13, 2008 at Sunnybrook Hospital by Dr. Ross,
    assisted by Dr. Anna Bendzsak, a senior resident, and Dr. Aliyah Kanji, a
    junior resident. There were no surgical complications and Mr. Sackss recovery
    was uneventful for the first two days.

[16]

Mr.
    Sackss condition started to deteriorate on May 16, 2008. At 7:50 am, he
    complained to Nurse Pamela Raye-Ilogu of abdominal distention, and he remained
    distended throughout the day. His white blood cell count was 9.5, within a normal
    range. At 12:50 pm, Mr. Sacks complained of abdominal pain. On a scale of one
    to ten, with ten being the patients worst pain, Nurse Raye-Ilogu recorded
    the pain as an eight while resting and ten while moving. She gave Mr. Sacks
    pain medication.

[17]

At
    4:30 pm, Nurse Raye-Ilogu informed Dr. Bendzsak and Dr. Kanji of Mr. Sackss
    severe (+++) shoulder pain. This was the first time Nurse Raye-Ilogu
    contacted a doctor about Mr. Sackss pain since starting to care for him on May
    14. At 4:40 pm, Dr. Kanji, under the supervision of Dr. Bendzsak, prescribed
    morphine. Dr. Kanji also ordered a complete blood count NOW please, to check
    for a possible infectious process and other possible issues.

[18]

Anastomotic
    leak was part of the differential diagnosis of Dr. Kanji and Dr. Bendzsak. Several
    of the defendant doctors testified that if there were a specific concern about
    infection, they would want to know as soon as possible, and would want the
    blood results as soon as possible. At trial, Dr. Kanji testified that the
    bloodwork order was not made specifically to identify possible infection, but
    it could be identified by the bloodwork.

[19]

Nurse
    Raye-Ilogu entered Dr. Kanjis request in the hospital computer at 5:08 pm as a
    STAT order, called the lab to inform them of the order, and recorded it in
    the chart. STAT bloodwork results are ordinarily available within one hour. Dr.
    Kanji testified that the NOW please order was specifically intended not to be
    a STAT order. Nurse Raye-Ilogu explained that she entered the order as a
    STAT order because STAT was the closest approximation of NOW please that
    was available in the computer system.

[20]

Nurse
    Raye-Ilogu went off duty at 7:30 pm. She informed Nurse Xia Li, who was
    assuming Mr. Sackss care, about the bloodwork order. Dr. Kanji also went off
    duty at 7:30 pm and did not check to see whether the results of the bloodwork
    order were available. She discussed Mr. Sacks with Dr. Bendzsak, who would be
    assuming his care. Dr. Kanji expected the doctors on duty overnight to
    follow-up on the bloodwork order.

[21]

Mrs.
    Sacks saw Mr. Sacks during the day and evening of May 16. She was concerned and
    called Dr. Ross at home about Mr. Sackss deteriorating condition. Dr. Ross
    came in to the hospital around 7:30 or 8:00 pm and examined Mr. Sacks. He spoke
    to Dr. Bendzsak but did not recall checking the chart, speaking to Nurse Li or
    checking the status of the bloodwork order. He made no notes of his examination
    in the chart. He told Mrs. Sacks that Mr. Sackss pain could be typical and
    they should wait until the next day to see what would happen.

[22]

At
    8:00 pm, Nurse Li examined Mr. Sacks. He was slightly tachycardic and his blood
    pressure was lower than the normal range. She did not report Mr. Sackss vital
    signs to a doctor. He was still in pain and Nurse Li administered morphine.

[23]

The
    results of the bloodwork ordered by Dr. Kanji were entered into the hospitals
    computer system at 9:51 pm, four and a half hours after being ordered. The
    delay was inconsistent with hospital policy, and was not reported to the floor
    or to the requesting physician, also contrary to the policy. The lab result
    showed that Mr. Sacks had a white blood cell count of 1.8  a result considered
    abnormally low and for which a confirmatory test was usually done to ensure its
    accuracy. It was entered in the computer as CRITICAL and marked in red.
    However, the critical result was not reported by the lab to the ward or the
    ordering physician.

[24]

A
    hospital witness explained that even though the result was marked as CRITICAL
    in the system, the result was not actually critical at the campus of the
    hospital where Mr. Sacks was being treated. The computer system was shared by
    various campuses with different criteria for what constituted critical. Mr.
    Sackss result was considered critical at a different campus but not the campus
    where he was being treated.

[25]

Dr.
    Giacomantonio, an expert witness called by the plaintiffs, testified that the
    significant drop in the white blood cell count was a finding that should have
    raised alarms about infection, and ultimately, sepsis.

[26]

Neither
    Dr. Bendzsak nor Nurse Li followed up on the blood result overnight even though
    they were both on duty. Mr. Sacks complained of back pain for the first time in
    the early morning hours of May 17. Nurse Li called Dr. Jeffery Singer, a junior
    resident, to assess Mr. Sacks. Dr. Singer thought the back pain might have been
    the result of Mr. Sacks being immobile in a hospital bed and prescribed a
    muscle relaxant and sedative. Dr. Singer did not talk to Dr. Bendzsak or become
    aware of the bloodwork results.

[27]

Dr.
    Ross returned to the hospital before 9:00 am for morning rounds. Dr. Bendzsak
    went off duty at 9:00 am and turned Mr. Sackss care over to Dr. Ross. Around
    this time, both Dr. Bendzsak and Dr. Ross learned about the bloodwork results
    indicating a low white blood cell count. Dr. Ross was certainly concerned [Mr.
    Sacks] had an infection. Dr. Ross ordered STAT bloodwork. The results came
    back at about 10:50 am confirming the low white blood cell count. His blood
    pressure dropped further. Dr. Ross then believed that Mr. Sacks had an
    infection.

[28]

Based
    on these results, Dr. Giacomantonio testified that the only possible conclusion
    a surgeon could then draw was that Mr. Sacks was septic because of an
    anastomotic leak, and the operating room should have been the next stop.

[29]

However,
    Dr. Ross ordered a STAT CT scan. He testified that although he believed Mr.
    Sacks had an infection in the morning, he wanted to identify the source of the
    low white blood cell count before proceeding with treatment. He did not start
    antibiotics until 4:00 pm because he first wanted to identify the source of the
    infection and control it, treatment which the antibiotics would supplement.

[30]

The
    CT scan was not performed until approximately 3:00 pm. Only one of the
    hospitals four CT scanners was running because of reduced staffing levels on
    the weekend (and only three were operational at the time). The CT scan
    confirmed the anastomotic leak.

[31]

Mr.
    Sacks was taken to the operating room to repair the leak by 5:05 pm. He was in
    septic shock. He underwent surgery from 5:29 pm to 6:55 pm to repair the leak
    and wash out the peritoneal cavity. There was gross contamination in the belly.

[32]

Mrs.
    Sacks went home at 10:00 pm. She received a call at 1:30 am from Mr. Sackss
    mother at the hospital. Mrs. Sacks returned to the hospital and was told that
    Mr. Sacks might not make it through the night. He was very ill for the next new
    few days.

[33]

Mr.
    Sacks went into kidney failure and required multiple surgeries over the next
    few months. Some of his tissues became necrotic and he developed compartment
    syndrome. He was in a medically induced coma for three months. Ultimately,
    amputation of both of Mr. Sackss legs below the knee and all ten fingertips
    was required.

[34]

Mr.
    Sacks was in the hospital from May until November 2008, and in a rehabilitation
    centre until March 2009.

D.

The Issues

[35]

What
    caused Mr. Sackss injuries? This was the core factual issue at trial. There
    were competing expert explanations. The appellants explanation was that the
    delay in diagnosing and treating the anastomotic leak caused Mr. Sackss
    injuries. In order to control his low blood pressure he was given powerful
    vasopressors which, in combination with the sepsis, led to the need for the
    amputations.

[36]

As
    noted, the respondents explanation was that the delay was not material to Mr. Sackss
    outcome because he contracted a rare, unrecognized aggressive necrotizing
    infection in his right lower back (retroperitoneal  RPN or RPNI), which
    could not have been diagnosed on May 17. As a result, his injuries were
    unavoidable and not the result of anyones breach of a standard of care.

[37]

These
    competing explanations of the cause of Mr. Sackss injuries faced the jury, and
    informed both the jury questions and the jury instructions.

[38]

There are three general issues:

1.

Did the trial proceed on a correct understanding
    of causation in negligence cases?

2.

Were the jury questions and the jury
    instructions on causation legally correct?

3.

Did any legal error in the jury questions or the
    jury instructions deprive the appellants of a fair trial?

I address these in turn.

E.

Issue One: Did the trial proceed on a correct
    understanding of causation in negligence cases?

[39]

The common law feels its way on a case by case
    basis recognizing that judges are not omniscient. A carefully formulated legal
    proposition that works justice in a specific case might later be found, in the
    light of different facts, to be over-inclusive or under-inclusive, or as
    otherwise flawed or inadequate. The paradoxical genius of the common law is
    that, on principle, the process of refinement and adaptation is interminable.

[40]

The doctrine of causation in negligence is a signal
    example. As

McLachlin C.J.
    observed in
Resurfice Corp. v. Hanke
, 2007 SCC
    7, at para. 20: Much judicial
and academic ink has been
    spilled over the proper test for causation in cases of negligence. The Supreme
    Courts decision in
Clements v. Clements
,
2012 SCC 32, [2012] 2 S.C.R. 181
ushered in another wave of ink.

[41]

In picking through the law relating to causation in
    negligence actions, there is some conceptual clarity to be gained by
    distinguishing between simple negligence cases involving a plaintiff and a
    single defendant, and complex cases involving multiple tortfeasors.

(1)

Simple Negligence Actions

[42]

The paradigm negligence case is one in which a
    single defendant is alleged to have negligently done something that caused the
    plaintiffs injury. To succeed the plaintiff must prove both the defendants
    breach of the standard of care and causation.

[43]

The current state of the law regarding causation
    in negligence cases was set out by McLachlin C.J. in
Clements
at para 8:

The test for showing causation is the "but for" test.
    The plaintiff must show on a balance of probabilities that "but for"
    the defendant's negligent act, the injury would not have occurred. Inherent in
    the phrase "but for" is the requirement that the defendant's
    negligence was
necessary
to bring about the injury -- in other words
    that the injury would not have occurred without the defendant's negligence.
    This is a factual inquiry. If the plaintiff does not establish this on a
    balance of probabilities, having regard to all the evidence, her action against
    the defendant fails. [Emphasis by McLachlin C.J.]

[44]

The determination of causation is understood as
    a factual inquiry. In all instances of determining causation, Professor Russell
    Brown (as he then was) observed that the trier of fact proceeds by inference
    and not as a direct witness of the events: The Possibility of Inference
    Causation: Inferring Cause-in-Fact and The Nature of Legal Fact-Finding
    (2010) 55 McGill L.J. 1; Known Unknowns in Cause-in-Fact (2010-2011), 39.
    Adv. Q. 37; Cause-in-Fact at the Supreme Court of Canada: Developments in Tort
    Law in 2012-2013, (2014), 64 S.C.L.R. (2d) 327.

[45]

Very few fact situations demonstrate the causal clarity
    of a game of billiards in which the combinations of balls striking balls can be
    easily replicated. The closest equivalent would be a simple case involving a
    single defendant who did something in breach of the standard of care that physically
    hurt the defendant, where the but for test is relatively easy to apply.
    Consider the cases in which the defendant accidently shoots the plaintiff in a
    hunting mishap, or where the defendant runs a red light and collides with the
    plaintiff who suffers physical trauma. Causation is not usually a live issue in
    such cases because the causal inferences are so easy to draw.

[46]

Things are more complicated where the complaint
    is not about something the defendant did, but about something the defendant
    failed to do in breach of the standard of care. When what is in issue is not
    the defendants act, but an omission, the trier of fact is required to attend
    to the fact situation as it existed in reality the moment before the
    defendants breach of the standard of care, and then to imagine that the
    defendant took the action the standard of care obliged her to take, in order to
    determine whether her doing so would have prevented or reduced the injury. Even
    though this exercise is bounded significantly by the actual facts, it counts as
    factual because the task is to consider how the events would actually have unfolded
    had the defendant taken the action she was obliged to take.

(2)

The Causal Reasoning Process

[47]

Regardless of whether the defendants breach of
    the standard of care is an act or an omission, the trier of facts cognitive
    process in determining causation has three basic steps. The first is to
    determine what likely happened in actuality. The second is to consider what
    would likely have happened had the defendant not breached the standard of care.
The third step is to allocate fault among the negligent defendants.

[48]

There are two possible outcomes to the trier of
    facts imaginative reconstruction of reality at the second step. On the one
    hand, if the trier of fact draws the inference from the evidence that the
    plaintiff would likely have been injured in any event, regardless of what the
    defendant did or failed to do in breach of the standard of care, then the
    defendant did not cause the injury. On the other hand, if the trier of fact
    infers from the evidence that the plaintiff would not likely have been injured
    without the defendants act or failure to act, then the but for test for
    causation is satisfied: but for the defendants act or omission, the plaintiff
    would not have been injured. The defendants fault, which justifies liability,
    has been established.

[49]

I move now to consider some more factually complicated
    situations.

(3)

Negligence Actions
Involving
Multiple Defendants

[50]

Many factual combinations and permutations are
    possible in negligence cases, including the complexities arising from multiple
    negligent parties, multiple potential causes, successive and cumulative
    injuries, divisible and indivisible injuries, injury aggravation, and the thin
    and crumbling skull scenarios: see Erik Knutsen, Clarifying Causation in
    Tort, (2010) 33 Dal. L.J. 153, and Coping with Complex Causation Information
    in Personal Injury Cases, (2013) 41 Adv. Q. 149.

[51]

Delayed diagnosis medical negligence cases
    involving multiple tortfeasors typically raise several such complexities, and are
    among the most complex to assess from the perspective of causation.

[52]

Chief Justice McLachlin took the view in
Clements
that the basic but for test also applies in these more complex
    cases, noting at paras. 12 and 43:

In some cases, an injury -- the loss for which the plaintiff
    claims compensation -- may flow from a number of different negligent acts
    committed by different actors, each of which is a necessary or "but
    for" cause of the injury. In such cases, the defendants are said to be
    jointly and severally liable. The judge or jury then apportions liability
    according to the degree of fault of each defendant pursuant to contributory
    negligence legislation.

It is important to reaffirm that in the usual case of multiple
    agents or actors, the traditional "but for" test still applies. The
    question, as discussed earlier, is whether the plaintiff has shown that one or
    more of the defendants' negligence was a necessary cause of the injury. Degrees
    of fault are reflected in calculations made under contributory negligence
    legislation.

[53]

In his 2010 article, at p. 170, Professor
    Knutsen made the following observations, basically agreeing with McLachlin
    C.J.:

But for causation is therefore not
    complicated in successive or cumulative injury context when one focusses solely
    on each actor and each actors role in a causal story. The confusion results
    when one forgets two things: first, that it is a defendants breach of the
    standard of care that is the locus of the causal inquiry, and second, that a
    defendants negligence need only be proven to be a cause of some injury to the
    plaintiff.

[54]

However, it is worth observing that the Supreme
    Court has never considered cases beyond the simple. Even in

Athey v. Leonati
, [1996] 3 S.C.R. 458
,
    which involved successive accidents with different defendants, the plaintiffs
    injuries were treated as a single tort by agreement of the parties, which
    greatly simplified the analysis. I do not consider
Cook v. Lewis

[1951] S.C.R. 830, which was a very strange case about a
    hunting accident, to be an example applicable to conventional delay of diagnosis
    and treatment cases.

[55]

As I explain below, this case shows that the
    trier of facts cognitive process in reasoning through causation in
a
    delayed diagnosis and treatment case
does not unfold as simply
    as these statements of the doctrine might suggest.

[56]

With these governing principles in mind, I now turn to the second
    issue.

F.

Issue Two: Were the jury questions and the jury
    instructions on causation legally correct?

[57]

As
    I noted earlier, the appellants submit that the jury questions and the jury
    instructions proceeded on the wrong legal understanding of causation in the
    context of a claim for delayed medical diagnosis and treatment against multiple
    tortfeasors. They assert that what they call a global but for test should
    have been applied
.
The respondents submit that the trial judge made no
    error; the global but for test the appellants now put forward is novel and
    was not put to the trial judge.

[58]

I
    begin by setting out the governing principles on jury questions and jury
    instructions, next consider the trial judges decision on the jury questions
    and her jury instructions, and then address the arguments.

(1)

Civil Jury Questions

[59]

Despite the prevalence of the use of jury
    questions in negligence actions, relatively little has been written about them.
In a civil trial the jury questions and jury instructions are intended
    to work hand in glove.
Jury questions serve to sequence and
    guide the jury in its deliberations, which is especially necessary in more
    complex cases in which there are multiple actors.

[60]

Civil jury questions are authorized by s. 108(5)
    of the
Courts of Justice Act
, which is the successor
    to s. 65 of the
Judicature Act
R.S.O. 1877,
    c.1, s. 6. In
Cobban v. CPR
(1896), 23 OAR 115
    at 117 (C.A.), Burton J.A. extolled jury questions:  One of the greatest
    improvements in legal proceedings among the recent changes was the power given
    to the Court to submit facts only to the jury in the form of questions, and
    upon the answers to those questions for the Court to apply the law.

[61]

The jury is the trier of fact. Jury questions
    are intended to identify and track the findings of fact that must be made in a
    case. Sometimes the questions are simple and few. In a simple negligence action
    the questions usually involve both liability and damages. An example of a set
    of jury questions in an ordinary negligence case is provided in K. Bracken, C.
    Grauer and L. Warren,
Civil Jury Instructions
(second edition  2017 update) (CIVJI), Appendix C Sample Form1:

1.

Was there negligence on the part of the defendant that caused or
    contributed to the damage suffered by the plaintiff?

Answer:
Yes [   ]       No [   ]

(If the answer
    to Question 1 is No, you do not need to answer the questions listed below. If
    the answer to Question 1 is Yes, proceed to answer the following questions.)

2.

If the answer to Question 1 is Yes, was there negligence on the part
    of the plaintiff that caused or contributed to the occurrence?

Answer:
Yes [   ]       No [   ]

3.

If the answers to Questions 1 and 2 are both Yes, and there was
    therefore negligence on the part of both parties, what was the percentage or
    degree of the negligence of each?

Answer:            Plaintiff        ___%

Defendant    ___%

Total
100
%

This example is similar to the one
    provided in
J. Sopinka, D. Houston and M. Sopinka,
The Trial of An
    Action
 Second Edition. (Toronto: Butterworths, 1998) (
The Trial of an
    Action
)
in Appendix 16.

[62]

The required characteristics of jury questions
    are plain enough. They should be tailored to the specific findings of fact necessary
    to decide the case. Jury questions should respond to the facts in issue and be
    logically sequential.  They should be expressed as simply and clearly as
    possible; a question should not be compound or contain an embedded assumption. Jury
    questions should also be neutrally expressed and should not nudge the jury
    towards a particular result.
It is better if the questions can be
    answered in a yes or no format followed by a blank space in which the jury
    can insert a damages figure if it finds liability, and its reasons if called
    for.
The jurys answers should permit the judge to complete
    the judgment:
Bassandra v. Sforza
, 2016 ONCA
    251. See generally CIVJI, and
Michelle Fuerst and Mary Anne Sanderson
    eds,
Ontario Courtroom Procedure
3d ed. LexisNexis 2012, at p. 1152 (
Ontario
    Courtroom Procedure
).

[63]

The practice is for trial counsel to propose the
    jury questions to the trial judge. The trial judge has the overriding
    gatekeeping obligation to carefully scrutinize the draft jury questions
    submitted by counsel, and should reject formulations that do not reflect the required
    characteristics of jury questions, or that would not permit the judge to enter
    judgment at the end of the trial, even if counsel have agreed on the questions.
    See
Bassandra
.

The
    trial judge should engage with counsel for the parties in drafting the
    questions well before jury instructions are prepared, especially for complex
    and lengthy cases.
Any dispute must be resolved on motion, as
    it was in this case.
See generally CIVJI notes to Appendix C, and
Trial
    of An Action
,
at 176.

[64]

It has become standard practice in professional
    negligence cases for the jury to be asked to provide their reasons for any finding
    of negligence, in keeping with the observations of Sopinka J. in
ter
    Neuzen v. Korn
[1995] 3 S.C.R. 674 at
    para. 53:

To avoid the problem encountered in this case due to the
    inscrutability of the jury's response to the question relating to negligence,
    and as a precaution to test the jury's understanding of the instruction, the
    question to the jury with respect to negligence should require that the jury
    specify in what respects the defendant was negligent. In a case in which the
    general rule applies, the answer will reveal whether the jury has understood
    and applied the judge's instruction that it must accept the standard practice
    as the legal standard against which the defendant's conduct must be measured. Additionally,
    in a case which falls within the exception to the general rule and where the
    jury can fix the standard irrespective of the expert evidence, the answer to
    the question will ensure that the standard which the jury has adopted is not
    unreasonable or unknown in law.

[65]

The
    trial judge in this case followed best practice, heard argument on November 13,
    2015 and issued her endorsement a week later, well before the case went to the
    jury.

[66]

T
oo often trial counsel have not discussed the
    jury questions before the trial starts; this is bad practice. In complex cases
    counsel should be prepared to propose and discuss the questions during a case
    management meeting or at the trial management conference. A civil jury trial
    should start with a working set of jury questions to guide the court, subject
    to revision as the evidence unfolds.

(2)

The Trial Judges Decision on the Jury Questions

[67]

The
    parties could not agree on the wording of the questions to be put to the jury
    on causation at trial. The trial judge made a ruling: 2015 ONSC 7238, 2015
    CarswellOnt 18932.

(a)

The Appellants Trial Position on the Jury Questions

[68]

The
    appellants submitted at trial that the but for test for causation was
    applicable and disavowed any attempt to engage the material contribution
    test.  However, they asserted that phrasing the jury questions in terms of the
    language of the but for test as it is set out in
Clements
would confuse
    the jurors, particularly in using the word necessary, which suggests that
    each defendants conduct must be the sole cause of the plaintiffs injury. They
    pointed out that in delayed diagnosis cases one defendants conduct will
    rarely, if ever, be the sole cause.

[69]

Trial
    counsel argued the plaintiffs need not prove that a specific defendants negligent
    act or omission was the
sole
cause of the injury, only that it was
a
cause, citing
Athey
, para. 17, where Major J. said:  It is not now
    necessary, nor has it ever been, for the plaintiff to establish that the
    defendant's negligence was the sole cause of the injury. He added: As long as
    a defendant is part of the cause of an injury, the defendant is liable, even
    though his act alone was not enough to create the injury.

[70]

Accordingly,
    the appellants trial counsel sought this wording for the jury causation
    question: Did the failure of ______ to meet the standard of care cause or
    contribute to Mr. Sacks injury? This proposed formulation picked up the
    language of s. 1 of the
Negligence Act
, R.S.O. 1990, c. N.1. Counsel
    referred to several cases in this court where similar language was used.

(b)

The Respondents Trial Position on the Jury Questions

[71]

Trial
    counsel for the respondents submitted that in wording the jury questions there
    was no reason for the court to deviate from the language used by the Supreme
    Court in
Clements
.
Trial
    counsel for the doctors argued that the jury instructions could correct any
    impression left by the

Clements
wording that the but for
    test required the jury to find any defendant to be the sole cause of the
    plaintiffs injury. He added that using the terminology of caused or
    contributed to in the jury questions could confuse the jury because it might
    allow them to find that a defendant contributed to the delay in a way that that
    was not material, (in the sense that it was

de minimis
and not
    sufficiently substantial to give rise to liability).

(c)

The Ruling

[72]

To
    set the jury questions regarding causation, the trial judge
cited
    the test prescribed by the Supreme Court in
Clements
quoted above
.
She noted the distinction
    between the but for test for factual causation on the one hand, and the
    material contribution to the risk of injury test, on the other hand, but
    found this case was not the exceptional one in which the material contribution
    test to determine cause-in-fact should be used. (This holding is not challenged
    on appeal.) She noted the respondents argument, at para. 9: Inherent in the
    phrase "but for" is the requirement that the defendant's negligence
    was
necessary
to bring about the injury  in other
    words, that the injury would not have occurred without the defendant's
    negligence. (Emphasis added.)

[73]

Further,
    in wording the jury questions, the trial judge found, at para. 13, there is no
    compelling reason not to use the language of causation from
Clements
.
    She stated that using the phrase, caused or contributed to, as proposed by
    the plaintiffs, could confuse the jury; the use of such language in the
Negligence
    Act
does not mean it should be used in jury questions.

(d)

The Jury Questions

[74]

The jury questions accordingly took the form set out below, to be
    asked with respect to each defendant.

Standard of
    Care

1.(a)   Have
    the Plaintiffs satisfied you on a balance of probabilities that there was a
    breach of the standard of care on the part of [*]?

Answer: [ ]

(b)     If yes,
    please state the particulars of the breach and provide clear and specific
    answers:

Answer: [ ]

Causation

2.(a)   If your
    answer to question 1(a) is yes, have the Plaintiffs proven, on a balance of
    probabilities, that but for the breach of standard of care, the injuries of
    Jordan Sacks would not have occurred?

Answer: [ ]

(b)     If your
    answer to question 2(b) is yes,
how
did the breach
    of the standard of care cause Jordan Sacks injuries? Please provide clear and
    specific answers:

Answer: [ ]

[75]

While
    the jury found five of the defendants breached elements of their respective
    standards of care, they did not find that any of the breaches caused Mr. Sackss
    injuries. I return to the significance of this outcome below.

[76]

As I will explain, in my view there is force in
    the appellants critique of the jury questions, which extends to the jury
    instructions.

(3)

Civil Jury Instructions

[77]

The purpose of jury instructions is to explain
    to the jury what their role is in the trial and their corresponding duties.
    Juries are told at the outset of the trial and in the jury instructions that
    they are the triers of fact, or the sole judges of the facts, and that the
    trial judges role is to determine and prescribe the law the jury must apply.

[78]

Jury instructions at the end of hearing the
    evidence and prior to deliberations remind jurors of what they heard in the
    judges opening remarks to the jury panel from which the jury was selected, and
    in remarks to the jury at the opening of trial. But jury instructions also go
    much deeper. The topics usually covered include the respective roles of the
    judge and the jury, the onus and burden of proof, the elements of the
    applicable law tailored to the case, how the jury ought to assess the evidence
    including credibility and expert evidence, and procedural instructions on how
    to deliberate. See
Ontario Courtroom Procedure
,
    Appendix 1631 at p. 1533 re speech to the panel, and Appendix 16.35, 16.36 re
    speech to the jury at the opening of the trial.

[79]

Jury charges usually contain statements of the
    positions of the parties prepared by them for inclusion in the charge. A trial
    judge will review the evidence and relate the items of evidence to the claims
    that are being made, particularly in longer cases. The judge will also review
    the questions facing the jury and explain how they are to be addressed.

[80]

Formulating instructions that adequately state
    the legal principles to be applied by the jury to the facts in a complex case
    can be difficult, as appellate courts have often noted.

(a)

Appellate Authority on Jury Instructions

[81]

The trial judge plays a vital role in
    formulating jury instructions, civil or criminal, that help the jury navigate the
    complexity presented by the law and the facts. The trial judges duty is to be
    an educator and to instruct the jury on the law: D. Watt,
Helping
    Jurors Understand
(Toronto: Thomson Carswell, 2007), at
    p. 2. The primary purpose of jury instructions is to explain the legal
    principles that jurors are to apply to reach their decision: Watt, at p. 60.
    Instructions should be legally accurate and expressed in plain language, avoiding
    legalese, to enhance juror understanding: Watt, at pp. 82-83.

[82]

The trial judge must strike a crucial balance
    by crafting a jury charge that is both comprehensive and comprehensible:
R.
    v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at para.
    50. The trial judges duty is to decant and simplify:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 13.

[83]

Juries must be properly instructed:
Jacquard
, at para. 2, but a standard of perfection is not expected.
    Different trial judges are not likely to prepare identical sets of
    instructions, nor is that required. What is essential is that the substance of
    the issue be conveyed to the jury: see
R. v. Grant
, 2016 ONCA 639, 342 C.C.C. (3d) 514, at para. 115;
R. v.
    Henderson
(2001), 145 O.A.C. 150 (C.A.), at para. 12.

[84]

The trial judge must isolate the critical issues
    in a case and tailor the charge to them:
Rodgerson
, at paras. 51-52. Jury comprehension is hindered, not helped, by overreliance
    on model charge manuals or long quotes from appellate decisions:
Rodgerson
, at paras. 50-5, 531;
Jacquard
, at
    para. 1.  Trial judges are not required to slavishly follow the exact words of
    a specimen instruction, or a legal test stipulated by an appellate court; in
    fact doing so might constitute error if it operates to confuse the jury.

[85]

As Justice Watt pointed out in his text, one of the difficulties in
    crafting comprehensible jury instructions is that the law itself is often very
    complex, making it difficult to explain in a single sentence or short
    paragraph concepts that law students, lawyers, and judges spend months if not
    years learning (at p. 61).

[86]

Terse doctrinal formulas are not crafted by appellate courts in
    order to serve as jury instructions, particularly where the courts focus is on
    resolving a doctrinal issue, as in
Clements
. Professor
    Knutsen observed in his 2010 article that some of the seeming confusion in
    causation doctrine might be the result of the economy of language the Supreme
    Court has used (p. 155). He added that the statements of doctrine should not be
    read like cryptic advice from isolated fortune cookies, with each word taking
    on ominous significance (p. 156). The notion of ominous significance seems
    to be present in the word necessary, as I will explain.

[87]

In my view, t
he causation doctrine prescribed by the Supreme
    Court in
Clements
must be translated into jury-accessible language.

(b)

The Jury
Instructions
on
    Causation

[88]

As
    I observed earlier, trial judges should provide a draft set of jury
    instructions to the parties ahead of time and give counsel an opportunity to
    make submissions. This allows errors and ambiguities to be caught and
    corrected, and the instructions to be improved.

[89]

The
    trial judge followed best practice. She heard submissions at a pre-charge conference
    on November 30, 2015, and made adjustments in response. It is unclear whether
    the trial judge also adopted the best practice of providing a written copy of
    the jury instructions to the members of the jury along with a copy of the set
    of questions they were to answer.

[90]

In her jury charge, the trial judge described the test for
    causation in language that echoed
Clements
:

The plaintiffs must prove on the balance of probabilities that
    but for the conduct that you have identified as breaching the standard of care,
    sometimes we call this the negligent conduct, the injury would not have
    [occurred].

In an action alleging delay in diagnosis and treatment, such as
    this one, the plaintiff must establish on a balance of probabilities that the
    failure to diagnose the anastomotic leak in a timely fashion was a
necessary
cause of the unfavourable outcome for Jordan.
    (Emphasis added.)

[91]

She
    added:

[A] defendant's conduct need not be the sole cause. It does not
    have to be the most important cause. However, it must have been a
necessary
cause of the harm.  [T]he plaintiff must show
    on a balance of probabilities that the injury would not have occurred without the
    defendant's negligence. (Emphasis added.)

[92]

In
    concluding her instructions on causation, the trial judge said to the jury:

[Y]ou will be asked to determine the issue of causation for each
    of the defendants. This means that you must decide on the evidence whether but
    for the actions of each defendant Jordan would not have suffered the injuries
    that he did, specifically the multiple surgeries and amputations.

(4)

The Arguments on Appeal

[93]

In assessing the adequacy of a jury charge, this
    court must ask if the jury would have understood the issues of fact, the
    relevant legal principles, how the facts relate to the law, and the positions
    of the parties:
Surujdeo v. Melady
,
    2017 ONCA 41,
at para. 83.

[94]

The
    appellants advanced overlapping arguments on the appeal. They contest the
    adequacy of the wording of the jury questions on causation, and the use of
Clements

    wording of the but for test in the questions and in the jury instructions. To
    remedy the flaws, they argue that a global but for test is required in cases
    of delayed medical diagnosis and treatment against multiple tortfeasors.

[95]

After
    discussing the causal reasoning process in such cases, I address the arguments.

(a)

The Causal
    Reasoning Process in Cases of Delayed Diagnosis and Treatment Against Multiple
    Tortfeasors

[96]

As I stated earlier, this case shows that the
    trier of facts cognitive process in reasoning through causation in
a
    delayed diagnosis and treatment case
does not unfold as simply
    as the statements of causation doctrine might suggest.

[97]

The context in such cases is set by the plaintiffs overarching
    claim that his or her injuries were caused by a delay in diagnosis and
    treatment. In this case, the appellants position is that if Mr. Sackss
    anastomotic leak had been detected and treated on a timely basis, he would not
    have suffered his injuries.

[98]

The normal causal reasoning process has three steps, as noted.
The first is to determine what likely happened in actuality.
The
    trier of fact must determine, on the evidence, whether the delay in treatment
    led to the plaintiffs injury, considering only what the plaintiff needed by
    way of timely diagnosis and treatment in order to avoid injury, and without
    considering the presence or absence of any breaches of the standard of care.

[99]

The second is to consider what would likely have
    happened had the defendant not breached the standard of care. I
f an
    actual delay led to injury, the plaintiff must establish fault: there was a
    breach of the standard of care on the part of one or more of the defendants
    that caused or contributed to the delay in diagnosis and treatment. The third
    step is to allocate fault among the negligent defendants.

[100]

The analysis of
    the second and third steps requires the trier of fact to determine sequentially
    and separately with respect to each event in the chain of events leading to the
    plaintiffs injury, whether there was a breach of the standard of care on the
    part of one or more of the defendants that caused or contributed to the delay
    that led to the injury. The trier of fact, assisted by the trial judge and the
    parties, must chunk out, or separate for analytical purposes, the events in
    the flow, and apply the causal reasoning process to each event in sequence.

[101]

The basic idea
    is that the jury must analyze each event in the sequence while ignoring any
    decision it might have made with respect to an earlier event. To illustrate, I
    pick out two events in this case. The first event was that at 5:08 p.m. on May
    16, Nurse Raye-Ilogu entered a blood work order in the hospital computer. She
    went off duty at 7:50 p.m. The jury was asked to find that she:

1.
Fa
i
l
e
d
    to c
h
ec
k
    the l
a
b
o
r
a
to
r
y

r
e
sul
t
s be
f
o
re

the

e
nd
    of

h
e
r shi
f
t;

2.
Fa
i
l
e
d
    to con
f
i
rm the

status of
t
he

labo
ra
to
r
y

r
e
su
l
ts and to
e
nsure

pro
p
e
r
    h
a
ndov
e
r.

[102]

The second event
    was that the results of the blood test were entered into the hospitals
    computer system at 9:51 p.m. The jury was asked to find that Sunnybrook:

1.
Fa
i
l
e
d
    to pe
r
fo
r
m
S
TAT

blood
t
e
st
i
n
    a

t
i
me
l
y

w
a
y;

2.
Fa
i
l
e
d
    to follow its own

pol
ic
y

re
g
a
rdi
n
g

tur
n
-a
r
o
und
    t
i
me
f
or

S
TAT

blood
t
e
sts
    (one hour, says the appellants);

3.
Fa
i
l
e
d
    to
c
a
ll

the
f
loor
    or

the o
r
d
e
ri
n
g

p
h
y
sici
a
n to

a
dvise th
a
t
t
he
re
sul
t
s of

the stat blood test would be d
e
l
a
y
e
d
a
nd to

a
dvise
w
h
e
n the
re
sul
t
s would b
ec
o
me
a
v
a
i
l
a
ble.

[103]

Regarding the first event, the argument is that had
Nurse
    Raye-Ilogu pursued the blood test results earlier, Sunnybrook staff would have
    processed the request earlier, perhaps by several hours. It was open to the
    jury to have found Nurse Raye-Ilogu beached the standard of care in failing to
    follow up, and to find that, on the balance of probabilities, she contributed
    to the cumulative delay in diagnosis and treatment.

[104]

In
    considering the second event, the jury would have been required to ignore its
    finding with respect to the first event, and to consider Sunnybrooks possible
    breaches of the standard of care on the facts as they actually occurred, not on
    the facts that would have occurred if Nurse Raye-Ilogu had pursued the blood
    test results earlier. In other words, the jury was required to keep its
    assessment of the two events separate.

[105]

I
    track through the events of the case in considering how to interpret the jurys
    answers below. My purpose here, in picking out these two events as examples, is
    to note that a jury considering a negligence claim against multiple tortfeasors
    requires careful instructions on the reasoning process it must employ in moving
    through the events in order to determine causation. The jury charge in this
    case did not provide such instructions.

(b)

Problems with Using the
Clements

    Wording of the But For Test in Jury Instructions

[106]

The appellants
    concede in their factum that the trial judge adequately instructed the jury on
    how to apply the but for test to address the problem of factual uncertainty
    in this case. However, they assert that the trial judges use of the wording
    in
Clements
, particularly with its focus on the word necessary,
    introduced a fatal ambiguity into the questions that rendered the jurys answers
    unreliable. Appeal counsels submissions echoed and deepened the argument advanced
    by trial counsel about the wording of the jury questions.

(i)

The Basic Factual Question was not Asked

[107]

The appellants submit
    that the jury was not asked to determine whether there was a delay in the
    diagnosis and treatment of Mr. Sackss condition that caused his injuries, quite
    apart from any negligence, which is the first step in the causal reasoning
    process. This I infer to be the core of the appeal argument that the questions
    and instructions were deficient because the jury never had the opportunity to
    consider what would have happened but for the failure to diagnose the
    anastomotic leak in a timely fashion.

[108]

I would reject
    this argument. In my view, that is exactly the import of a statement in the
    trial judges instructions, which I repeat:

In an action alleging delay in diagnosis and treatment, such as
    this one, the plaintiff must establish on a balance of probabilities that the
    failure to diagnose the anastomotic leak in a timely fashion was a necessary
    cause of the unfavourable outcome for Jordan.

[109]

It would have
    been preferable to have included a basic question to this effect in the jury
    questions (but omitting the word necessary as I will explain). The trial
    judge in
Goodwin v. Olupona
,
2013 ONCA 259, 325 O.A.C. 245 took a similar approach by first
    asking: When did Adam Goodwin sustain his injuries?...

But there is no doubt that in this case the jury was told
    the crux of the point.

(ii)

The
    Problem of Circular Causation

[110]

The appellants
    submit it was wrong for the jury [to be] asked to determine whether the
    conduct of each defendant  on his or her own  was
necessary
to bring about Jordans injuries (emphasis added). More specifically, they
    argue:

The jury in this case, however, was asked whether Jordans
    injuries would have been avoided but for the breaches of each
individual
defendant, one by one. In light of the evidence at trial
    about the collective nature of the errors that caused Jordans injuries, it is
    understandable that the jury answered no to the causation questions posed
    about each defendant individually. It may well be the case that but for the
    breaches of Dr. Ross, or Dr. Kanji, or Dr. Bendzsak, or Nurse Li, or Sunnybrook
    Hospital
on their own
, Jordans injuries would not have been
    avoided. But that is not the question the law requires the trier of fact to
    consider.

The jury was never asked the crucial question in this case: but
    for
the delay
occasioned by the defendants breaches of the
    standard of care, would Jordans injuries have been avoided? Jordan is entitled
    in law to receive an answer to this question.

[111]

The error, the
    appellants assert, is that on the facts of this case, no
individual
defendants conduct could be said to have
    been necessary to cause the harm. The issue arises in cases where: multiple
    defendants collective negligence may create more delay than was actually
    necessary to cause the injury. They invoke Professor Knutsens critique of
    what he dubbed circular causation in his 2010 article, at pp. 163,187.

[112]

Counsel stated
    in oral argument:

In some cases, we say, this is a classic example, one
    defendants negligence may not be necessary to bring about an injury when
    considered in isolation, but it may be necessary to bring about an injury when
    considered in conjunction with the negligence of other tortfeasors where the
    cumulative effect of multiple breaches of the standard of care constitutes the
    necessary cause. In those cases the defendants negligence is part of the
    necessary cause even if it is not a necessary cause on its own. We say it
    doesnt make sense that the plaintiff would be without a remedy at law simply
    because theres not one individual defendant whose actions alone would have
    made a difference even if the combined negligence of a group of defendants, in
    this case members of the healthcare team, caused the injury.

[113]

An example of
    the basic problem Professor Knutsen calls circular causation is found in
    Michael D. Green & William C. Powers Jr.,
Restatement of Torts:
    Liability for Physical and Emotional Harm
,

3d ed. (St. Paul, MN:
    American Law Institute Publishers, 2010),  at section 27, illustration 3:

Able, Baker and Charlie, acting independently but
    simultaneously, each negligently lean on Pauls car, which is parked at a
    scenic overlook at the edge of a mountain. Their combined force results in the
    car rolling over the edge of a diminutive curbstone and plummeting down the
    mountain to its destruction. The force exerted by each of Able, Baker and
    Charlie would have been insufficient to propel Pauls car pass the curbstone,
    but the combined force of any two of them is sufficient. Able, Baker and
    Charlie are each a factual cause of the destruction of Pauls car.

[114]

Professor Jane
    Stapleton notes that this example shows a positive contribution which might be
    unnecessary: Unnecessary Causes, (2013) 129 L.Q.R. 39. The idea is that each
    of Able, Baker and Charlie could step out of the causal chain. Each could claim
    his contribution to have been unnecessary to the damage since the force
    administered by the other two would have sufficed, even though each contributed
    to the force that caused the damage.

[115]

Professor
    Stapleton cites this as one of several examples of the striking outcomes that
    would flow if the law refused to recognize as causal a positive contribution,
    albeit unnecessary, to the relevant step in the mechanism by which an
    indivisible injury occurred. (p. 43). She proposes that:

[the causal test be] framed as no more than whether that factor
    was
a
cause of the injury. This catchment is also neatly achieved by
    the well-known phrase caused or contributed to. The word caused will easily
    identify necessary factors and the phrase contributed to also accommodates
    the positive, albeit unnecessary, contributions being discussed here. (p. 45).

[116]

Generally speaking, with respect to delayed diagnosis
    medical negligence cases involving multiple tortfeasors, it ought not to be
    possible for any one of the negligent tortfeasors to sidestep liability on the
    basis that there was sufficient cumulative delay resulting from the negligent
    acts or omissions of other defendants so that it could not be proven under
Clements
that the defendants particular contribution was
    necessary  that the injury would still have been incurred but for the
    negligent act or omission.

[117]

I note that the formulation preferred by Professor Stapleton
    is the one set out in the
Negligence Act.
It is also
the way in which the causation test has been described in several cases in the
    Supreme Court and in this court. See
Snell v. Farrell
, [1990] 2
    S.C.R. 311
, at para 26, and
Athey
at paras.13 and 17. This court
has held that
    a plaintiff must prove on a balance of probabilities that the delay caused or
    contributed to the unfavourable outcome:
Cottrelle v. Gerrard,
(2003)
    67 O.R. (3d) 737 (C.A.) at para. 25, cited in
van Dyke v. Grey Bruce
    Regional Health Centre
[2005] O.J. No. 2219 (C.A.) at para. 44; in
Beldycki
    Estate v. Jaipargas
, 2012 ONCA 537 at para. 44, in
Wilson v. Beck
,
    2013 ONCA 316 at para. 46, and in
Mangal v. William Osler Health Centre
,
    2014 ONCA 639 at para. 56. It is also consistent with the sample questions in
    CIVJI and in
The Trial of an Action
.

[118]

As I interpret
Clements
, in specifying the but for test, McLachlin C.J.
    used the word necessary in a purposive manner in order to underscore the legal
    requirement for the plaintiff to prove that there was a real and substantial
    connection between the defendants breach of the standard of care by an act or
    omission and the plaintiffs injury. Recall her words in para 8 of
Clements
:
Inherent in the phrase "but for"
    is the requirement that the defendant's negligence was
necessary
to
    bring about the injury --
in other words that the injury
    would not have occurred without the defendant's negligence
(My emphasis).

[119]

As
    is shown by
McLachlin C.J.s
alternative
    wording
, it is possible to set the causation
    test without using the word necessary at all. Lord Denning did not use the
    word in his explanation of the but for test in
Cork v. Kirby
    Maclean Ltd.
[1952] 3 All E.R. 402 at 407:

If you can say that the damage would not have happened but for
    a particular fault, then that fault is in fact a cause of the damage; but if
    you can say that the damage would have happened just the same, fault or no
    fault, then the fault is not the cause of the damage.

Nor do Allen M. Linden and Bruce Feldthusen use the word in their
    specification of the test:
Canadian Tort Law

10
th
ed. (Toronto: Butterworths, 2015) at s.4.32 and following.

[120]

The
    prospect that the word necessary in the
Clements
expression of the
    but for test might conflict with the customary and statutory phrase caused
    or contributed to has not been addressed in the cases. In my view, when the
Clements
test is understood purposively, there is no conflict. T
here is no magic in the word necessary, and it is not obligatory in a
    jury instruction or question.

[121]

The delayed diagnosis cases involving multiple
    tortfeasors could present instances of circular causation in which the use of
    the word necessary, as explained by Professor Stapleton, could create
    confusion in the minds of the jury and lead to injustice. In such instances it
    would be better if the word were not used in explaining the but for test to
    the jury.

[122]

In
    my view, the trial judge should not have rejected the use of the phrase caused
    or contributed to in the formulation of the jury questions and the
    instructions, and instead to have insisted on the language from
Clements
.
    Perhaps, in responding to defence counsels argument, the trial judge took the
    view that using the phrase would conflict with the
Clements
 wording
    of the but for test, particularly in its use of the word necessary. There
    is nothing innately confusing about the phrase caused or contributed to.

(c)

The Appellants Proposed Global but for Test

[123]

In contrast to
    their position at trial, the appellants submit that the questions and instructions
    were deficient because they did not tell the jury to consider whether Jordans
    injuries would have been avoided
but for the defendants
    collective negligent conduct
. In claims for delayed medical diagnosis
    and treatment made against multiple defendant tortfeasors, such as this case,
    the appellants submit the jury should be asked a global but for question in
    order to determine causation:

Here, it is not a question of which defendant, but of
    multiple defendants compounding contributions, no one of which can be
    considered necessary
on its own
, but each of which composed part of a
    necessary cause (the delayed diagnosis).

The only antidote is a global but for
    test.

[124]

The appellants
    now posit two jury questions related to causation, adding a prior question to
    the one trial counsel proffered:

(1)

Have the Plaintiffs proven, on a
    balance of probabilities, that but for the delay occasioned by the defendants
    breaches of the standard of care, the injuries of Jordan Sacks would not have
    occurred?

If the answer to that question
    is yes, in respect of each individual defendant

(2)

Did the failure of [that
    defendant] to meet the standard of care cause or contribute to Jordan Sacks
    injuries?

[125]

The appellants
    base the global but for test on
Clements
. At para. 43 of the
    decision, McLachlin C.J. noted that in the case of multiple agents or actors,
    the traditional but for test applies, but the question becomes: whether the
    plaintiff has shown that one or more of the defendants negligence was a
    necessary cause of the injury. Chief Justice McLachlin was referring, in para.
    43 of
Clements
, to her earlier comments, at paras. 39 and 40, where
she twice used the expression
viewed
    globally:

What then are the cases referring to when they say that it must
    be "impossible" to prove "but for" causation as a
    precondition to a material contribution to risk approach? The answer emerges
    from the facts of the cases that have adopted such an approach. Typically,
    there are a number of tortfeasors. All are at fault, and one or more has in
    fact caused the plaintiff's injury. The plaintiff would not have been injured
    "but for" their negligence,
viewed globally
. However, because
    each can point the finger at the other, it is impossible for the plaintiff to
    show on a balance of probabilities that any one of them in fact caused her
    injury. This is the impossibility of which
Cook
and the multiple
    employer mesothelioma cases speak.

The cases that have dispensed with the usual requirement of
    "but for" causation in favour of a less onerous material contribution
    to risk approach are generally cases where, "but for" the negligent
    act of one or more of the defendants, the plaintiff would not have been
    injured. The plaintiff effectively has established that the "but
    for" test,
viewed globally
, has been met. It is only when it is
    applied separately to each defendant that the "but for" test breaks
    down because it cannot be shown which of several negligent defendants actually
    launched the event that led to the injury. The plaintiff thus has shown
    negligence and a relationship of duty owed by each defendant, but faces failure
    on the "but for" test because it is "impossible", in the
    sense just discussed, to show which act or acts were injurious. In such cases,
    each defendant who has contributed to the risk of the injury that occurred can
    be faulted. (Emphasis added.)

[126]

The appellants argue
    that this court has taken this global approach in delayed diagnosis cases, and cite

Cottrelle
and the cases following its language of whether
the delay caused
    or contributed to the unfavourable outcome.
Cottrelle
involved a
    single tortfeasor, and
Wilson v. Beck
did not expressly address the
    issue. I am unable to agree that this court has at any time adopted the global
    but for test for which the appellants contend.

[127]

Counsel for the
    hospital respondents submits that the thrust of the language in
Clements
was to reinforce the traditional individual but for test as against the
    material contribution test.

[128]

It is a fair
    reading that in both
Hanke v. Resurfice
2007 SCC 7, [2007]
    1 S.C.R. 333,

and
Clements
, repeated in
Ediger v.
    Johnston
[2013] 2 SCR 98, at para. 2, the Supreme Court was trying to
    corral the material contribution test that originated with its decision in
Athey
    v. Leonati
.
Professor
    Vaughan Black
states that
Athey

spawned 16 years of confusion. His
    view is that
Clements
has in fact been successful in turning back the
    causation clock to a more defendant-favouring age: The Rise and Fall of
    Plaintiff-Friendly Causation (2016) 53: 4 Alta. L. Rev 1013, at paras. 18, and
    6.

[129]

However, it is not my view, as the hospital
    respondents suggest, that the appellants are effectively resiling from their
    position that the material contribution test does not apply in this case. I do
    not see the global but for test as another angle on the material contribution
    test.

[130]

To reflect the
    causal reasoning process, I would have framed the jury questions as follows:

(1)

Have the Plaintiffs proven, on a
    balance of probabilities, that a delay in treatment caused Jordan Sackss
    injuries?

If the answer to that question
    is yes, in respect of each individual defendant
:

(2)

Have the Plaintiffs proven, on a
    balance of probabilities, that the delay resulting from [this defendants]
    breach of the standard of care caused or contributed to the injuries of Jordan
    Sacks?

If
    the answer to that question is yes, in respect of each individual defendant
:

(3)

How did [this defendant] breach the
    standard of care? Please provide clear and specific answers.

The jury instructions would have to be adjusted accordingly.
    In such instructions the use of the word necessary should be avoided in
    describing the but for test.

[131]

This approach does not impose a global but for test.
The first question in the causal reasoning process is about a plain
    fact: did the delay cause the injury because treatment came too late? This step
    requires the trier of fact to consider only what the plaintiff needed by way of
    timely diagnosis and treatment in order to avoid injury, without considering
    the presence or absence of any breaches of the standard of care. It is not
    aimed at and does not determine fault. The second question is whether anyone in
    the chain of events caused or contributed to the delay, and determines fault.
    This is a conventional but for analysis of each individuals involvement,
    which avoids giving any defendant the opportunity to make the circular
    causation argument. The but for test would be explained in the instructions
    and adapted to the facts, including the role of acts and omissions. There is accordingly
    no global but for test, just the application of the ordinary but for test
    in the context of a claim for delayed diagnosis in a medical negligence case
    involving multiple tortfeasors.

[132]

Despite these adjustments, I would reject the
    appellants argument that using their proposed global but for test for
    causation, or simply using the common expression
caused or contributed
    to in the questions and the instructions, or using the re-framed questions
    stated above,
would have or could have resulted
    in a different verdict in this case. I base this on my interpretation of the
    answers the jury gave to the questions asked, which I deal with in the next
    section of these reasons.

G.

Issue Three: Did any legal error respecting the jury questions or the
    jury instructions deprive the appellant of a fair trial?

[133]

A jury verdict in a civil trial will be set aside only if it is so
    plainly unreasonable and unjust as to satisfy the court that no jury reviewing
    the evidence as a whole and acting judicially could have reached it:
Goodwin v. Olupona
, 2013 ONCA
    259, 305 O.A.C. 245,  at para. 23. Where there is some evidence to support the
    verdict, a jury will be accorded a high degree of deference.

[134]

The competing injury
    causation theories in this case were clearly and unambiguously put to the jury
    via the evidence and particularly the expert evidence, in jury submissions by
    the parties, in the trial judges explanation of the positions of the parties,
    and in her jury instructions. No one minced words. When contrasted with the
    answers the appellants asked the jury to make, the answers given by the jury
    demonstrate that even if the jury questions had been expressed differently, the
    jury would not have found in the appellants favour.

[135]

Professor Brown
    discussed the dynamic by which a trier of fact assesses competing causation
    theories and makes a choice in his 2011 article, at p. 57:

Specifically, fact-finders infer to the best
explanation
among a way of competing explanations of the evidence put before the parties.
    At the first stage, parties offer competing narrative to account for the
    evidence (the plaintiff offering versions that address the formal doctrinal of
    requirements of her claim, and the defendant offering versions that omit at
    least one of those elements). The second stage sees the fact-finder subjecting
    those explanations (along with any explanations generated by the fact-finder
    herself) to consideration for plausibility in relation to the evidence. The
    fact-finders, in other words, attempt in situations of factual uncertainty,
    including known unknowns, to make sense of what happened by cobbling together a
    plausible account that qualifies as the most compelling of the accounts on
    offer.

[136]

In his 2010
    article, at p. 39, Professor Brown pointed out that there is a form of
    circularity to this reasoning structure, in that the explanation and the
    underlying evidence are mutually reinforcing. He observed: The evidence under
    consideration justifies the belief that the explanation is correct, while the
    explanation is used to clarify the evidence.

[137]

I do not
    consider this element of circularity to be a flaw, but only a feature of the
    ordinary reasoning process. A person who comes upon a situation and tries to
    figure out what happened will, from the evidence, generate hypotheses, and will
    upon investigation and reflection reject some and eventually adopt one that
    makes the most sense of all of the evidence. The key link in finding cause-in-fact
    in a legal action, as Professor Brown noted, is that the trier of facts
    reasoning process of constructing and comparing narratives is undertaken with
    reference to the evidence, free of idiosyncratic value judgments. (p. 39)

[138]

I turn now to
    set out the jury submissions by the parties, the trial judges explanation of
    the positions of the parties, her jury instructions, and the jurys answers.

(1)

The Jury Addresses

(a) The Defence
    Addresses

[139]

The jury heard first
    from counsel for the Sunnybrook defendants, but his address was not
    transcribed. The jury next heard from the counsel for the doctors, who said: Theres
    two different competing causation theories, as you would have gathered from the
    evidence.  Theres a pretty clear dichotomy between what the defence experts
    say occurred. He put the defence theory forward forcefully:

[I]nside his abdomen where the leak occurred infected his
    retroperitoneum, the back of his abdomen, which is in behind a lining which
    must have been breached, infection got in there, infected the muscles in his
    back and then tracked down, infected the muscles in his thigh, and that was a virulent
    infection and that was the reason why he got so sick. He didnt get better
    after he had the surgery on May 17, he actually got worse.

And its explained for that reason, whereas the plaintiffs
    position is that  that just didnt happen. The plaintiff says that didnt
    happen. It was  the delay in getting him back to the operating room that is
    the cause.

[140]

Defence counsel
    returned to the theme a number of times in his argument stating, at page 7: You
    have to choose between two theories, one of which is a coherent consistent
    theory presented by the defence expertsversus kind of piece-meal different
    theories that changed as the trial went on put forward by the plaintiffs.

[141]

After going
    through the evidence in detail, defence counsel said to the jury:

What the defence says this represents, as a matter of science,
    is that, that necrotizing retroperitoneal soft tissue infection was destroying
    those muscles in his back, retroperitoneum, and thigh already on May 17, and it
    got a lot worse and stayed very bad for a number of days, and those are the
    same days that he is profoundly septically ill. He is in profound septic shock,
    those are the same days where hes requiring massive amounts of vasopressors,
    which caused the peripheral ischemia, which is what causes his feet to go
    necrotic.

So, this all ties it together, clearly, in our submission, that
     what the defence is saying is  is right and proven by all this clinical
    data, and  and that  the plaintiffs experts have zero explanation to the
    contrary.

[142]

Defence counsel submitted
    to the jury that the infection was not preventable on the evidence:

Theres no causation in the case referable to the defendants
    actions. And its becauseits for this reason, the only witnesses who
    described that in detail were Dr. Davison and Dr. Zoutman [defence experts],
    and they both said this was not preventable, for a whole bunch of different
    reasons, but it was seeded by  early on, by the evening of the 16th, early
    morning of the 17th, and it  and you couldnt stop that process, because no
    one knew about it.

(b) The
    Plaintiffs Jury Address

[143]

The plaintiffs
    trial counsel took the approach that the outcome represents a total failure of
    the entire healthcare team and all of its members and parts. It is a total
    systems failure. (page 137-8)
The argument
    depended on proving that, but for the collective delay in diagnosing and
    treating, Mr. Sackss injuries would have been prevented. The position was that
    if the leak had been diagnosed on the evening of May 16, and he been taken to
    the operating room by 1:00 or 2:00 p.m. on May 17, as Dr. Smith testified that
    the standard of care required, he would not have progressed from infection to
    severe septic shock.

[144]

Trial counsel
    went through the medical records at length and urged the jury to make specific
    findings that the doctors and staff of the hospital, and the hospital itself,
    had breached the standard of care in a number of ways.

[145]

Trial counsel
    stated:

And I say to you Dr. Lee [the plaintiffs expert] was entirely
    right, even on the late morning of May the 17th, Mr. Sacks outcome would have
    been avoided if only he had received the treatment that he should havebecause
    the key is treat intra-abdominal sepsis as quickly as possible and before it
    leads to septic shock and thats what didnt happen for Jordan. His
    intra-abdominal sepsis was not treated and it did lead to septic shock, and I
    say to you that should be the end of the debate, because the delay that
    occurred, caused, or allowed, Jordans sepsis to progress to septic shock. The
    septic shock  I dont think theres any disagreement here, the septic shock caused
    Jordans injuries. So, if the delay caused the sepsis to go to septic shock,
    and septic shock caused the injuries, the delay caused the injuries.

[146]

Like defence
    counsel, plaintiffs counsel was clear and forceful:

The defendants say that Jordan developed a virulent aggressive
    necrotizing infection in his retroperitoneum that was then undiagnosed and
    untreated until at least June the 4th, I am going to suggest to you that that
    diagnosis is physiologic nonsense concocted eight years after the fact in an
    attempt to avoid accountability for their actions.

[147]

Trial counsel
    challenged strongly the expertise of the defence experts regarding necrotizing
    fasciitis. He went over the defence evidence in detail. He stated: the simple
    reality is Jordan did not have retroperitoneal necrotizing fasciitis in May
    2008. He invited the jury to so find: I am going to ask you to find that
    Jordan did not have retroperitoneal necrotizing fasciitis in May of 2008.

[148]

As for the
    existence of retroperitoneal necrotizing fasciitis, the theory advanced by
    trial counsel was that Mr. Sacks later got a bug,
pseudomonas aeruginiosa
.
    That bug caused a secondary necrotizing soft tissue infection, and acute
    surgical emergency.  In short, the plaintiffs position was that the
    necrotizing fasciitis was a later development and would not have occurred had
    the sepsis been arrested by proper treatment on May 17.

(2)

The Jury Instructions

[149]

In her jury
    instructions, the trial judge went over the positions of the plaintiffs and the
    defence, which were prepared by them for insertion into the instructions.

[150]

As the very end
    of her instructions, just before reaching the jury questions, the trial judge summarized
    the expert evidence, which she had just reviewed:

The plaintiff experts, Dr. Giacomantonio, Dr. Smith, Dr.
    Rebello, and Dr. Lee and Dr. Krajdn, all said that Jordans complications
    following the surgery were caused by the breach of the standard of care of the
    defendants. The defendant physicians, and hospital, and nurses, called experts
    whose evidence I have just summarized: Dr. Davison, Dr. Stroz, Dr. Zoutman, and
    Nurse Burns, and they testified that Jordans outcome was not caused by
    anything the doctors and nurses, or the hospital, did or did not do, rather, it
    was related to the retroperitoneum necrotizing infection that Jordan developed
    May 16 or May 17.

[151]

The trial judge
    dealt with causation at several places in her jury instruction. She stated, at
    page 53:

In order to succeed the plaintiff must also satisfy you that
    but for the breach of the standard [of care] by one or more of the defendants,
    it is more likely than not that Jordan, would not have suffered septic shock
    and would not have had to undergo some 22 surgeries, including the amputations.
    This is known as the causation issue.

[152]

She next
    returned to the issue in discussing the questions:

As Ive told you, causation is established if the evidence
    satisfies you that it is more likely than not that Jordan would not have had
    the complications and injuries but for the negligent conduct of or breach of
    the standard of care, [then] you must go on to answer question 2b and provide
    how or in what way the doctors breach of the standard of care caused Jordans
    injuries.

[153]

There were no
    objections to the jury instruction.

(3)

The Jurys Answers

[154]

The competing
    causation theories were put clearly to the jury via the evidence and
    particularly the expert evidence, in jury submissions by the parties, in the
    trial judges expression of the positions of the parties, and in her jury
    instructions. The jurys answers must be assessed in that light. The contending
    positions were sharply differentiated on the evidence.

[155]

In
    this section of the reasons I set out the flow of events in sequence. The
    jurys answers must be measured against the findings requested by trial counsel
    for the appellants. To summarize, the jury found that five of the defendants
    breached the standard of care, but not Dr. Jeffery Singer nor Nurse Pamela
    Raye-Illogu. However, the jury did not find that any of the breaches of the
    standard of care by the defendants caused the injuries for which Mr. Sacks
    claimed compensation.

[156]

The sequence of
    relevant events started with Mr. Sackss surgery on May 13, 2008. Between then
    and early on May 16, 2008, when his condition started to deteriorate, he
    developed an anastomotic leak. The appellants do not allege that there was
    negligence in the surgery or in the fact that the anastomotic leak developed.

[157]

Against this
    backdrop, the first event to be assessed is Mr. Sackss presentation of pain
    and distended abdomen starting at 7:50 a.m. on May 16, when he was under the
    care of Nurse Raye-Ilogu. At 4:30 p.m. she informed Dr. Bendzsak and Dr. Kanji
    about Mr. Sackss pain.

[158]

Concerning this
    event, with respect to Dr. Bendzsak, the jury was asked to find that she:

1.
Fa
i
l
e
d
    to app
r
ec
ia
t
e
a
nd
/
or
c
om
m
unic
a
te the

n
a
ture
a
nd u
r
g
e
n
c
y

of
    t
h
e
c
h
a
n
g
e

in
J
o
r
d
a
n

s
    co
n
di
t
ion as of

16:30 on M
a
y

16,

a
nd
    the
re
sul
t
ing

n
ee
d
    f
o
r
f
ol
l
o
w
-
up

2.
Fa
i
l
e
d
    to ensu
r
e

that the
r
e

w
a
s
    ap
p
rop
r
iate

c
om
m
unic
a
t
i
on
    to
t
he

o
n
-ca
ll

j
unior r
e
sident
    ab
o
ut
J
o
r
d
a
n

s
c
h
a
nge

in condit
i
on
a
nd t
h
e
fac
t
t
h
a
t

a

bloodwo
r
k
o
rd
e
r h
a
d
    b
ee
n ma
d
e.

[159]

The jury found
    that:

·

The new [complete blood count] order on May 16th was to look for
    an infection which required follow up.

·

Dr. Bendzsak failed to adequately hand off the responsibility to
    follow up on the bloodwork, prior to morning rounds.

[160]

With respect to
    Dr. Kanji, the jury was asked to find that she:

1.
Fa
i
l
e
d
    to docum
e
nt

a
n
y

c
l
i
nic
a
l ass
e
ss
m
e
nt
    of
J
o
r
d
a
n
a
t
    16
:
30 on M
a
y

16, the
re
b
y

f
a
i
l
ing

to comm
u
nic
a
te
w
i
t
h the
re
st
    of t
h
e

h
ea
l
t
h
ca
r
e

te
a
m,
i
n
c
lud
i
ng

the on
-ca
ll

te
a
m,
    of t
h
e
c
h
a
n
g
e

in
J
o
r
d
a
n

s co
n
di
t
ion

a
nd his
c
h
a
n
g
e

in
m
a
n
a
g
e
ment;

2.
Fa
i
l
e
d
    to commun
i
ca
te
s
u
f
fi
c
ient
l
y

or
a
t all wi
t
h

h
e
r s
e
nior
r
e
sident,
    D
r
.
B
e
nd
z
s
a
k
a
nd/or

with D
r
. Ro
s
s r
e
g
a
rdi
n
g

the
c
h
a
n
g
e
s in
J
o
r
d
a
n

s co
n
di
t
ion including

the n
e
w
c
omp
l
a
int

of
+
+
+

shoul
d
e
r p
a
in;

3.
Fa
i
l
e
d
    to a
d
e
qu
a
te
l
y

h
a
n
d ov
e
r
re
spons
i
bi
l
i
t
y

f
o
r
f
ol
l
o
w
-
up
    of

the

bloodw
o
rk o
r
d
e
r
e
d
b
y

h
e
r
a
t
    16
:
40
t
o
e
i
t
h
e
r
D
r.

B
e
nd
z
s
a
k
a
n
d/or
D
r.
    Sin
g
e
r.

[161]

The jury found
    only that: Dr. Kanji failed to document a complete assessment in the chart to
    assist in the communication of the patients ongoing care.

[162]

The second event
    was that at 5:08 p.m. on May 16, at the direction of Dr. Kanji, Nurse
    Raye-Ilogu entered a bloodwork order in the hospital computer. She went off
    duty at 7:50 p.m. With respect to Nurse Raye-Ilogu, the jury was asked to find that
    she:

1.
Fa
i
l
e
d
    to c
h
ec
k
    the l
a
b
o
r
a
to
r
y

r
e
sul
t
s be
f
o
re

the

e
nd
    of

h
e
r shi
f
t

2.
Fa
i
l
e
d
    to con
f
i
rm the

status of
t
he

labo
ra
to
r
y

r
e
su
l
ts and to
e
nsure

pro
p
e
r
    h
a
ndov
e
r

However, the jury made no adverse findings against
    Nurse Raye-Ilogu.

[163]

The third event
    is that the results of the bloodwork were entered into the hospitals computer
    system at 9:51 p.m. The jury was asked to find that Sunnybrook:

1.
Fa
i
l
e
d
    to pe
r
fo
r
m
S
TAT

blood
t
e
st
i
n
    a

t
i
me
l
y

w
a
y;

2.
Fa
i
l
e
d
    to follow its own

pol
ic
y

re
g
a
rdi
n
g

tur
n
-a
r
o
und
    t
i
me
f
or

S
TAT

blood
t
e
sts;

3.
Fa
i
l
e
d
    to
c
a
ll

the
f
loor
    or

the o
r
d
e
ri
n
g

p
h
y
sici
a
n to

a
dvise th
a
t
t
he
re
sul
t
s of

the stat blood test would be d
e
l
a
y
e
d
a
nd to

a
dvise
w
h
e
n the
re
sul
t
s would b
ec
o
me
a
v
a
i
l
a
ble.

[164]

The jury found
    the following deficiencies respecting Sunnybrook:

·

The true collect time of the blood was not entered into the
    system by Sunnybrook Health Sciences Centre.

·

The hospital did not follow its own turnaround time policy when
    it failed to contact the floor/requester to advise that results will be
    delayed.

[165]

The fourth event
    is that on the evening of May 16, Mrs. Sacks called Dr. Ross at home and expressed
    concern about Mr. Sackss condition. Dr. Ross visited Mr. Sacks between 7:30
    and 8:00 p.m. that evening. The jury was asked to find that he:

1.
Fa
i
l
e
d
    to do a

c
omp
l
e
te
a
ssessment
    of

J
o
r
d
a
n
    wh
e
n he

saw

h
im

on
    the
e
v
e
n
ing

of M
a
y

16;

2.
Fa
i
l
e
d
    to
i
nv
e
st
i
g
a
te
J
o
r
d
a
n

s ch
a
n
ge

in
    condit
i
on on the
e
v
e
ni
n
g

of
    M
a
y

1
6;

3.
Fa
i
l
e
d
    to c
h
a
rt
a
n
y

a
s
s
e
ss
m
e
nt
    of
J
o
r
d
a
n;

4.
Fa
i
l
e
d
    to r
e
v
i
e
w the

med
i
ca
l ch
a
rt
a
nd f
o
l
l
ow up
o
n st
a
t
    b
l
ood
re
sul
t
s

[166]

However, with
    respect to this event, the jury found only that: Dr. Ross did not communicate
    appropriately with his team when he failed to document, in the chart, his
    evening assessment on May 16
th
.

[167]

The fifth event
    occurred at 8:00 p.m. on May 16 when Nurse Li first examined Mr. Sacks, and
    continued throughout her shift. With respect to Nurse Li, the jury was asked to
    find that she:

1.    Fa
i
l
e
d
    to c
h
ec
k
    labo
r
a
to
r
y

r
e
sul
t
s;

2.
Fa
i
l
e
d
    to do complete

c
o
mpr
e
h
e
nsive
c
h
a
rt
a
p
p
r
o
p
r
iate
a
ssessments of
J
o
r
d
a
n
    throu
g
hout h
e
r shi
f
t;

3.
Fa
i
l
e
d
    to docum
e
nt

a
nd
c
h
a
rt
a
ppro
p
r
i
a
te
l
y;

4.
Fa
i
l
e
d
    to r
e
spond to

c
h
a
n
g
e
s
    in
J
o
r
d
a
n

s co
n
di
t
ion

a
t 20
:
00
a
nd to c
a
ll

a p
h
y
sician
    to as
s
e
ss
J
o
r
d
a
n;

5.
Fa
i
l
e
d
    to r
e
spond to the

c
h
a
ng
e
s
    in
J
o
r
d
a
n

s co
n
di
t
ion
t
h
r
ou
g
hout
    her

shift

a
nd to
ca
ll

a

p
h
y
sici
a
n
    to ass
e
ss

those
c
h
a
n
g
e
s.

[168]

The jury found
    only that: Nurse Lee [
sic
] failed to complete documentation with a
    specific failure to record pain scales before administering medication and a
    failure to record accurate locations of pain.

[169]

The sixth event
    was Dr. Singers assessment of Mr. Sacks in the early morning hours of May 17.
    The jury was asked to find that he:

1.
Fa
i
l
e
d
    to do a

c
omp
l
e
te
a
ssessment
    of

J
o
r
d
a
n

2.
Fa
i
l
e
d
    to r
e
v
i
e
w the

lab
o
r
a
to
r
y

re
sul
t
s as
p
a
rt of

h
is ass
e
ss
m
e
nt of
J
o
r
d
a
n

The jury made no adverse findings respecting Dr.
    Singer.

[170]

The seventh
    event occurred at 9:00 a.m. on May 17, when Dr. Ross resumed Mr. Sackss care.
    He ordered immediate bloodwork, then a CT scan. Trial counsel requested the
    jury to find
that Dr. Ross fa
i
l
e
d
    to sta
r
t antib
i
ot
i
c
s

in
    a ti
m
e
l
y

w
a
y.
    The jury found that: Dr. Ross failed to begin antibiotics within the first
    hour of recognizing severe sepsis.

[171]

Crucially,
    the jury did not find that any of the breaches of the standard of care by the
    defendants caused the injuries for which Mr. Sacks claimed compensation.  Given
    the clarity and vigour of the positions considered by the jury, this is
    dispositive.

[172]

As
    I read the jurys answers, the appellants case foundered at the first logical question
    in the causal reasoning process: have the plaintiffs proven, on a balance of
    probabilities, that a delay in treatment led to Jordan Sackss injuries,
    considering only what he needed by way of timely diagnosis and treatment in
    order to avoid the injuries? Although this was not a formal jury question, it
    tracks the trial judges instructions, to repeat:

In an action alleging delay in diagnosis and treatment, such as
    this one, the plaintiff must establish on a balance of probabilities that the
    failure to diagnose the anastomotic leak in a timely fashion was a necessary
    cause of the unfavourable outcome for Jordan.

[173]

The jurys answer to that question was plainly No. Had it been
    Yes, then the delays mentioned in the jurys answers would have resulted in
    positive findings of causation.

[174]

The
    jury rejected the appellants causation theory, on the evidence, and accepted
    the respondents
 theory. Not even perfect jury questions and
    instructions would have changed the verdict.

H.

Disposition

[175]

I would dismiss the appeal, with costs, if demanded. The parties
    have agreed that if the respondents were successful, as they have been, then
    the appellants would pay $40,000 in costs to the doctors and $30,000 to the
    hospital defendants, both figures inclusive of disbursements and applicable
    taxes.

Released:

OCT -5 2017                                    P.
    Lauwers J.A.

PL                                                   I
    agree C.W. Hourigan J.A.

I
    agree M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: September Seventh Entertainment Limited v. The
    Feldman Agency, 2017 ONCA 815

DATE: 20171024

DOCKET: C63432

Doherty, LaForme and Paciocco JJ.A.

BETWEEN

September Seventh Entertainment Limited

Appellant (Plaintiff)

and

The Feldman Agency, Jann Arden, J.A. Tours Inc.,
    Bruce Allen Talent, Johnny Reid, Johnny Mac Entertainment Inc. and Walkin the
    Dog Ltd. f.s.o. Cowboy Junkies

Respondents (Defendants)

Kevin Fernandes, for the appellant

Brian Shiller and Annamaria Enenajor, for the
    respondents

Heard and released orally:  October 19, 2017

On appeal from the judgment of Justice Alan Whitten of
    the Superior Court of Justice, dated January 24, 2017, granting summary
    judgment in favour of Jann Arden, J.A. Tours Inc., and The Feldman Agency, and
    granting partial summary judgment in favour of the remaining defendants.

REASONS FOR DECISION

[1]

Counsel for the appellant submits that two comments made by the motion
    judge, one in argument and one in his reasons, created a reasonable
    apprehension of bias in that the trial judges comments denigrated Mr.
    Gauthiers indigenous culture, beliefs and values.  Mr. Gauthier is the
    president of the appellant company and represented the appellant on the
    motion.

[2]

In our view, this argument is specious.

[3]

Neither comment referred to by counsel could be understood by any
    reasonable observer as having anything to do with Mr. Gauthiers indigenous
    culture, beliefs or values.  Rather, the comments, clearly somewhat sarcastic,
    were addressed to the nature of the public policy claim Mr. Gauthier advanced
    in his affidavit in support of his contention that certain provisions in the
    contracts were unconscionable and should not be enforced against the
    appellant.

[4]

The relevant part of the affidavit reads:

In the alternative, the clauses should not be enforced
    because of an overriding public policy against these particular contract
    breaches because of their impact on music fans, event producers, local
    musicians, music industry, suppliers, local business, farmers, non-profit
    groups, conservation lands, aboriginal groups, music venues and other related
    individuals and organizations.

[5]

The trial judge addressed the public policy argument at paras. 28 and 29
    of his reasons:

[28] If the exclusion clause is held to be valid and
    applicable, the court can still consider whether or not the exclusion clause
    should be enforced because of the existence of an overriding public policy.
    The burden of proof for the existence of such a phenomenon is upon he or she
    who seeks to avoid enforcement.  That proof must be of sufficient magnitude to
    outweigh the very strong public interest in the enforcement of contracts.

[29] Although the plaintiff pleads that numerous local entities
    (it is amazing that he did not include the animal life) will be affected by the
    actions of the defendants, there is no proof of such an impact, just bold
    assertions.  In reality, the future of the Harvest Festival is more likely to
    be affected by the plaintiff launching this suit and not paying the artist
    completely.  What artist would sign on for these problems?

[6]

While sarcasm is best avoided in judgment writing, the trial judges
    comments clearly targeted the extravagant and unsupported public policy claim
    advanced by Mr. Gauthier in his affidavit.  The remark spoke to the merits of
    that argument and no reasonable person could interpret the comment as casting
    aspersions on Mr. Gauthiers indigenous culture and beliefs.  The other comment
    made in argument is equally incapable of being understood as derogatory toward
    indigenous people.  We need not refer to it.

[7]

Counsel must fearlessly advance legitimate arguments on behalf of their
    clients.  However, it is unfortunate that counsels zeal sometimes leads to
    baseless arguments that undermine the integrity of others involved in the
    justice process and trivialize legitimate issues faced by indigenous people in
    our community.

[8]

The other issues raised by the appellant all relate to the motion
    judges interpretation of the exclusion clause and the limitation of liability
    clause in the various contracts.  We agree with the motion judges conclusions.
    On their language, the provisions clearly applied to alleged breaches of the
    radius clauses.  The unconscionability argument advanced before the motion
    judge and renewed in this court was properly rejected for the reasons given by
    the motion judge.

[9]

The appeal is dismissed.

[10]

Counsel
    have agreed that the respondents should have its costs in the amount of $8,500,
    inclusive of disbursement and relevant taxes.

Doherty J.A.

H.S. LaForme J.A.

David M. Paciocco J.A.