COURT OF APPEAL FOR ONTARIO

CITATION: UD Trading Group Holding PTE.
    Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

DATE: 20210428

DOCKET: M52370 (C69265)

Paciocco J.A. (Motion Judge)

BETWEEN

UD Trading Group Holding PTE. Limited,
    UIL Singapore PTE. Limited, UIL Malaysia Limited, UIL Commodities DMCC, Vadox
    Corp. and Prateek Gupta

Plaintiffs/Moving Parties/Responding Parties
    by Cross-Motion
(Appellants/Moving Parties)

and

TransAsia Private Capital
    Limited
,
TA Private Capital Security Agent Ltd.
,
    Rutmet Inc. and Export Development Canada

Defendants/Responding Parties/Moving Parties
    by Cross-Motion
(Respondents/
Responding Parties
)

Michael D. Schafler, Kenneth Kraft, Ara
    Basmadjian, and Rebecca Curcio, for the moving parties

George J. Pollack and Chenyang Li, for
    the responding parties

Heard: April 19, 2021 by video
    conference

ENDORSEMENT

OVERVIEW

[1]

On March 17, 2021, C. Gilmore J. dismissed a
    motion for an anti-suit injunction brought by the moving party plaintiffs, Prateek
    Gupta, UD Trading Group Holding PTE. Limited (UDTG), and several related
    companies, including three subsidiaries of UDTG (the UIL Companies).

[2]

In the same endorsement, the motion judge allowed
    a cross-motion by the responding party defendants, TransAsia Private Capital
    Limited and TA Private Capital Security Agent Ltd. (collectively referred to as
    TAP) to permanently stay the underlying action initiated by the moving
    parties in Ontario (the Underlying Action) on the basis of
forum non
    conveniens
and forum selection clauses. The moving parties have appealed
    this aspect of the motion judges order.

[3]

By endorsement dated April 20, 2021, I dismissed
    the moving parties request for a stay pending appeal and/or an order
    expediting the appeal, for reasons to follow. These are those reasons.

MATERIAL FACTS

[4]

The Underlying Action arises from a series of
    complex international commercial transactions involving the moving parties, the
    responding parties, and other corporate parties.

The key
    players

[5]

Before unfolding the agreements and transactions
    that matter to the motion before me, it is helpful to begin with a brief outline
    of the key players:

·

Rutmet Inc. (Rutmet) is an Ontario-based metal
    trading company operating in Ontario.

·

Export Development Canada (EDC) is a Canadian Crown
    corporation and insurance provider operating in Ontario and throughout Canada.

·

TransAsia Private Capital Limited, one of the
    TAP companies, is an asset management company incorporated and headquartered in
    Hong Kong, with offices in Singapore. It does not carry on business in Ontario
    or Canada.

·

TA Private Capital Security Agent Ltd., the
    other TAP company, is incorporated and headquartered in the British Virgin
    Islands. It operates as an affiliate of TransAsia Private Capital Limited and does
    not carry on business in Ontario or Canada.

·

UDTG was incorporated in Singapore, where its
    head office is located. Along with its subsidiaries, some of which are set out
    below, UDTG carries on business primarily in Asia and the Middle East and has
    offices in Dubai, United Arab Emirates (UAE). UDTG provides its customers
    with access to metal products and raw materials.

·

Prateek Gupta is a director of UDTG and is
    resident in Dubai.

·

The UIL Companies are three subsidiaries of
    UDTG, incorporated and headquartered in Singapore, Malaysia, and the UAE,
    respectively. The UIL Companies are in the business of metal trading.

·

Vadox Corp. is a subsidiary of UDTGs holding
    company, PPrime Limited. Vadox Corp. is incorporated and headquartered in the
    British Virgin Islands. It has no active operations. Although it is a moving
    party, it is unnecessary to refer to Vadox Corp. to unfold the relevant
    narrative.

The relevant agreements and transactions

[6]

Reduced to the simplest of terms, Rutmet owed
    money to TAP as the result of a May 24, 2019 loan agreement for US$60 million (the
    Rutmet Loan Agreement). In exchange for liquidity, the Rutmet Loan Agreement provided
    TAP with security in the form of Rutmets receivables, which TAP was authorized
    to collect or bill directly from Rutmets customers, along with fees and
    interest. As a condition of the Rutmet Loan Agreement, Rutmet obtained accounts
    receivable insurance from EDC, the benefits of which Rutmet assigned to TAP (the
    EDC Policy).

[7]

Rutmet had accounts receivable from metal sales
    to the UIL Companies. UDTG provided Rutmet with an unlimited corporate
    guarantee for the indebtedness of the UIL Companies (the UDTG Guarantee). Mr.
    Gupta provided Rutmet with an additional US$30 million guarantee for those same
    debts (the Gupta Guarantee).

[8]

By September 2019, Rutmet had defaulted on
    payments it owed to TAP under the Rutmet Loan Agreement. On November 22, 2019, Rutmet
    and TAP executed a forbearance agreement in which TAP agreed to refrain from
    exercising its rights as a creditor against Rutmet until December 13, 2019 (the
    Forbearance Agreement). In return, Rutmet granted TAP a power of attorney to
    make claims on its behalf to enforce the UDTG and Gupta Guarantees. Rutmet also
    executed a power of attorney authorizing TAP to make arrangements to secure the
    proceeds of insurance for unpaid receivables under the EDC Policy.

[9]

The forbearance period under the Forbearance
    Agreement ended on December 13, 2019, with Rutmet having failed to cure its
    defaults before the deadline. TAP then notified Rutmet of TAPs intention to
    enforce its security.

The relevant legal proceedings

[10]

On February 13, 2020, TAP commenced a
    receivership application in Ontario against Rutmet (the Receivership
    Application). That Application led to the compelled disclosure by Rutmet of
    information necessary to permit TAP to submit a claim for coverage under the
    EDC Policy. The Receivership Application was then abandoned.

[11]

TAP then submitted a claim to EDC under the
    Policy, but coverage was denied. On July 22, 2020, TAP brought an application in
    Ontario against EDC for declarations relating to EDCs refusal to provide
    coverage under the Policy (the EDC Application). The EDC Application remains
    outstanding.

[12]

As assignee, TAP also took steps to enforce the UDTG
    Guarantee of the debt owed by the UIL Companies to Rutmet. On July 9, 2020, TAP
    instituted an action in Singapore to enforce the UDTG Guarantee (the Singapore
    Action).

[13]

UDTG secured an order extending the time
    required to file a statement of defence in the Singapore Action until August 18,
    2020. On that date, instead of filing a statement of defence, UDTG applied for
    a stay of the Singapore Action on the basis that Ontario is the most
    appropriate forum (the Singapore Stay Application). The Singapore Stay
    Application has been adjourned multiple times. At the time I heard this motion,
    the Singapore Stay Application was scheduled for April 23, 2021.

[14]

Mr. Gupta resides in Dubai. On August 18, 2020,
    to conform with UAE law, TAP (via Rutmet) served Mr. Gupta with a final demand for
    payment under the Gupta Guarantee. If Mr. Gupta failed to pay, that notice
    permitted TAP to commence an enforcement action in Dubai on August 26, 2020.

[15]

On August 19, 2020, the day after Mr. Gupta was
    notified that the Gupta Guarantee would be enforced, the moving parties notified
    TAP that they had commenced the Underlying Action in Ontario on August 12, 2020.
    The relief sought in the Underlying Action includes declarations that (a) there
    are no outstanding receivables from the UIL Companies, and (b) there are no
    amounts owing under either of the UDTG or Gupta Guarantees.

[16]

In support of their claims, the moving parties
    contend TAP already recouped the funds owed by the UIL Companies to Rutmet (and
    assigned to TAP under the Rutmet Loan Agreement). They maintain this was
    accomplished when receivables owed to UDTG from metal sales were assigned and
    then paid to Triton Metallics Pte. Ltd. (Triton), a company the moving
    parties claim is controlled by TAP.

[17]

The moving parties further allege that, despite
    having been paid in this way, TAP then improperly enforced additional security
    for the Rutmet Loan Agreement. This alleged additional security took the form
    of shares in Gympie Eldorado Mining Pty Limited (GEM) and Hangji Global
    Limited (the GEM and Hangji Security). The moving parties contend that,
    although the relevant agreements indicate that the GEM and Hangji Security relates
    to independent loans TAP made to two of the UIL Companies (the UIL Loan
    Agreements), in fact, the GEM and Hangji Security was provided to secure the
    Rutmet Loan Agreement.

[18]

The moving parties allege the GEM and Hangji
    Security was arranged under the UIL Loan Agreements to hide its true nature from
    EDC (
i.e
.,
as additional security for the Rutmet Loan Agreement),
    so that EDC would not rely on the riskiness of the GEM and Hangji Security to increase
    the deductible component on Rutmets accounts receivable insurance. The moving
    parties claim that this structure effectively increased the value of the EDC Policy
    in favour of TAP by US$30 million.

[19]

The moving parties claim they agreed to this
    arrangement at TAPs insistence, on whom they had become financially dependent.
    They claim TAP was unjustly enriched by realizing on the GEM and Hangji Security
    under the UIL Loan Agreements after already having been made whole through
    Triton for the Rutmet Loan Agreement. In the Underlying Action, the moving
    parties not only seek to prevent TAP from enforcing the UDTG and Gupta Guarantees,
    they also seek damages from TAP for its alleged unjust enrichment.

[20]

On August 26, 2020, having provided the requisite
    five business days notice, TAP (via Rutmet) commenced an action in Dubai to
    enforce the Gupta Guarantee (the UAE Action). Mr. Gupta has filed a
    Statement of Reply, the UAE equivalent of a statement of defence, and the UAE
    Action is currently in the pre-trial phase.

[21]

By notice of motion dated September 3, 2020, the
    moving parties asked the Ontario Superior Court of Justice for interim and anti-suit
    injunctions restraining TAP and Rutmet from continuing the Singapore Action and
    the UAE Action, and for an order consolidating the Underlying Action with the Receivership
    Application and the EDC Application (the Anti-Suit Motion).

[22]

On September 8, 2020, Conway J. dismissed the
    moving parties request for an interim injunction. On September 16, 2020,
    Conway J. set a date of November 10, 2020 for a hearing on the merits of the Anti-Suit
    Motion. In the meantime, she urged the parties not to take steps in the Singapore
    Action or the UAE Action that would render the Anti-Suit Motion moot. The
    parties negotiated a stand-still arrangement, including relating to the
    Singapore Stay Application.

[23]

By notice of cross-motion, dated September 22,
    2020, TAP sought orders from the Superior Court, including a permanent stay of
    the Underlying Action on the basis that the Ontario courts lack jurisdiction due
    to
forum non conveniens
(the Permanent Stay Motion).

[24]

TAP denies the allegations made in the
    Underlying Action, including the claim that they have been paid through Triton,
    and contends that the Underlying Action is a pretense intended to delay and
    frustrate TAPs legitimate enforcement actions abroad.

The decision under appeal

[25]

The Anti-Suit Motion and the Permanent Stay Motion
    were heard together on January 19, 2021 before the motion judge, C. Gilmore J. On
    March 17, 2021, the motion judge issued her decision dismissing the moving
    parties Anti-Suit Motion and granting the responding parties Permanent Stay
    Motion with respect to the Underlying Action.

[26]

On April 6, 2021, the moving parties filed a notice
    of appeal of the motion judges decision in this court. Although the moving
    parties allege the motion judge made a number of errors in dismissing the
    Anti-Suit Motion, they concede it was open to her to deny an anti-suit
    injunction because there was evidence before her that there were numerous potential
    alternative jurisdictions.

[27]

Therefore, the moving parties appeal only the
    motion judges order granting the Permanent Stay Motion. They say she
    erroneously concluded that, having denied the anti-suit injunction, a permanent
    stay on the basis of
forum non conveniens
should automatically issue
    on the same grounds.

THE ISSUES

[28]

The issues on this motion can be stated simply:

(1)     Should a stay pending appeal be granted with respect to the motion
    judges March 17, 2021 order imposing a permanent stay of the Underlying
    Action?

(2)     Should
    the appeal be expedited?

ANALYSIS

1.       The Stay MOtion

[29]

Where a party seeks a stay pending appeal, the
    overarching consideration is whether the interests of justice call for a stay:
BTR
    Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust
, 2011
    ONCA 620, 283 O.A.C. 321, at para. 16;
2257573
Ontario Inc. v. Furney
,
    2020 ONCA 742, at para. 20. This determination is informed by the three factors
    described in
RJR-MacDonald Inc. v. Canada (Attorney General)
,
[1994]
    1 S.C.R. 311, at p. 334:

(a)     A preliminary assessment must be made of the merits of the
    case to ensure there is a serious question to be determined on the appeal;

(b)     It must be determined whether the moving party would suffer
    irreparable harm if the stay were refused; and

(c)     An assessment must be made as to which of the parties would
    suffer greater harm from the granting or refusal of the stay pending a decision
    on the merits.

[30]

As Laskin J.A. noted in
Circuit World Corp.
    v. Lesperance

(1997), 33 O.R. (3d) 674, at p. 677, these three criteria
    are not watertight compartments and the strength of one may compensate for
    the weakness of another.

[31]

As I will explain, having undertaken this
    assessment, I am not satisfied that it is in the interests of justice to order
    a stay pending appeal.

(a)     A Serious Issue to be Determined on Appeal

[32]

Jamal J.A. recently described the pertinent
    inquiry in
Furney
, at para. 22:

The threshold to establish a serious question
    on the appeal is low. The court must make a preliminary assessment of the
    merits of the case and determine whether the issue on appeal is neither
    frivolous nor vexatious. [Citations omitted.]

[33]

An appeal is frivolous when it is devoid of
    merit or with little prospect of success:
Heidari v. Naghshbandi
, 2020
    ONCA 757, 153 O.R. (3d) 756, at para. 10. It is vexatious if taken to annoy
    or embarrass the respondent or conducted in a vexatious manner, including an
    oblique motive for launching the appeal:
Heidari
, at para. 10.

The appeal is neither
    frivolous nor vexatious

[34]

In my view, this appeal is not frivolous.
    Sopinka J. made clear in
Amchem Products Incorporated v. British Columbia
    (Workers Compensation Board)
, [1993] 1 S.C.R. 897, at p. 913, that there
    is a fundamental difference between a domestic court issuing an anti-suit injunction,
    which in effect determines matters for a foreign court, and a domestic court
    staying a proceeding before itself. The former raises issues of international
    comity, but the latter does not. The inquiries into the suitability of forum
    therefore differ.

[35]

Most notably, in determining whether to grant an
    anti-suit injunction, the inquiry is based on the foreign courts perspective.
    The domestic judge considering whether to issue an anti-suit injunction is to
    ask whether, applying Ontarios principles of
forum non conveniens
, the
    court where the action sought to be restrained was commenced could reasonably
    have concluded there was no alternative forum that was clearly more
    appropriate. If the answer is yes, the decision of the foreign court to assume
    jurisdiction should not be interfered with:
Amchem
, at pp. 931-32.

[36]

By contrast, in determining whether a domestic
    action should be stayed, the domestic court must determine for itself whether
    there is another forum that is clearly more appropriate [than the domestic
    court] for disposing of the litigation and thus ensuring fairness to the
    parties and a more efficient process for resolving their dispute. A stay is
    appropriate only if this is so:
Club Resorts Ltd. v. Van Breda
, 2012
    SCC 17, [2012] 1 S.C.R. 572, at paras. 108-109.

[37]

These inquiries can result in an anti-suit
    injunction being denied without the parallel domestic action being stayed, unlike
    the outcome arrived at by the motion judge. This will occur, for example, if
    both the domestic and foreign forums are equally appropriate. In such
    circumstances, a foreign court could reasonably conclude there is no
    alternative forum that is clearly more appropriate, thereby warranting denial
    of an anti-suit injunction. But a domestic court would not necessarily stay the
    parallel domestic action since the domestic court would be equally appropriate;
    in other words, the foreign forum would not be clearly more appropriate.

[38]

The moving parties have identified features of
    the decision under appeal that lend some support to the suggestion that the
    motion judge may have erroneously elided the two tests. Therefore, the appeal
    is not frivolous.

[39]

Nor am I persuaded that the appeal was launched
    to annoy or embarrass the respondents or that it is being conducted in a
    vexatious manner. I am not prepared to find on the record before me that this appeal
    was brought with an oblique motive, for instance to delay or frustrate the
    enforcement of the Guarantees, which would be improper.

The seriousness of the issue in this case does not overcome
    weaknesses in the other
RJR-MacDonald
factors

[40]

During oral submissions before me, the moving
    parties placed great emphasis on the strength of their appeal. They suggested the
    case law appears to reflect the proposition that stays pending appeal tend to
    be granted where the strength of the appeal to be determined exceeds the low
    threshold of a serious question.

[41]

I do not want to be taken as endorsing this as a
    principled basis for resolving stay pending appeal motions. I will say,
    however, that where a preliminary assessment of the merits of the appeal shows it
    to be strong, this is a proper consideration in deciding whether to grant the
    stay, given the repeated recognition in this court that the strength of one
RJR-MacDonald

factor may compensate for the weakness of others.

[42]

Based on their submissions before me, I
    understand the moving parties to be emphasizing the strength of their appeal in
    support of this stay motion. However, in my view, this is not a case where the
    strength of the appeal compensates for the weakness in the other factors that I
    identify below.

[43]

First, a key feature of the moving parties
    argument on appeal is the claim that the motion judge failed to undertake a
    proper
forum non conveniens

analysis as set out in the leading
    case of
Van Breda
. However, the Underlying Action that is the subject
    of the appeal advances claims which are fundamentally contractual in nature. In
Van Breda
,

Lebel J. repeatedly confined the principles he
    developed to the assumption of jurisdiction in tort actions:
Van Breda
,
    at paras. 68, 80 and 85.

[44]

Recently, in
Forbes Energy Group Inc. v.
    Parsian Energy Rad Gas
, 2019 ONCA 372, 93 B.L.R. (5th) 169, at paras. 7-8,
    in resolving a
forum non conveniens

issue in a contract case, this
    court applied the factors Laskin J.A. identified in a pre-
Van Breda
contractual
    decision called
Young v. Tyco International of Canada Ltd.
, 2008 ONCA
    709, 300 D.L.R. (4th) 384, at para. 26.

[45]

I am not suggesting that general guidance cannot
    be taken from the
Van Breda
principles in resolving
forum non
    conveniens

issues in contract cases. That is commonly done: see
    e.g.,
Patterson v. EM Technologies, Inc
, 2013 ONSC 5849, at para. 17;
Wilson
    c. Fernand Campeau & Fils Inc.
, 2020 ONCA 384, at paras. 9-12;
Osman
    v. Markplan Inc.
, 2018 ABCA 215, [2018] A.W.L.D. 2510, at para. 8. The
    point is that the absence of an express reference by the motion judge to the
Van
    Breda

decision may not have the stark significance the moving
    parties ascribe to it, and an appeal panel may ultimately be persuaded that in
    the course of her decision, in substance, the motion judge consulted the
    correct considerations.

[46]

Second, forum selection clauses, namely those in
    the Guarantees assigned to TAP through the Forbearance Agreement, and in agreements
    relating to the GEM and Hangji Security, specifically authorized TAP to
    commence actions outside of Ontario. Relying on the decisions in
Douez v.
    Facebook, Inc.
, 2017 SCC 33, [2017] 1 S.C.R. 751 and
ECS Educational
    Consulting Services Canada Ltd. v. Al Nahyan

(2000), 44 C.P.C.
    (4th) 111, the motion judge concluded that the moving parties should be held to
    those forum selection clauses. The forum selection clauses stand as a material
    impediment to the moving parties claim that the motion judge erred in permanently
    staying the Underlying Action.

[47]

I have considered the counterarguments the
    moving parties made before me. Nevertheless, on a preliminary examination, I do
    not find those arguments sustain the view that the serious issue criterion is
    strong enough to overcome any weaknesses there may be in the other
RJR-MacDonald

factors.

(b)     Irreparable Harm

[48]

The moving parties urge that the failure to
    grant a stay pending appeal will cause them irreparable harm by: (i) creating a
    litigation disadvantage; (ii) putting them at risk of insolvency; and (iii)
    prejudicing them in the Singapore and UAE Actions by leaving in place the
    factual findings made by the motion judge pending appeal.

[49]

As I will explain, I do not accept any of these
    arguments.

(i)    A
    litigation disadvantage has not been established

[50]

The moving parties submit a litigation
    disadvantage will occur if a stay pending appeal is not ordered while the
    Singapore and UAE Actions proceed. If decisions are rendered by the Asian
    courts, the moving parties point out that the Underlying Action will be
    rendered moot. They will thereby lose the opportunity to have the merits of the
    decision determined in Ontario and they will be forced to litigate in multiple
    jurisdictions.

[51]

One problem with this submission is that there
    is no legal order in place preventing the responding parties from moving
    forward with the Singapore Action or the UAE Action. That will not change,
    whether I grant the stay or not. However, based on their submissions, the
    parties appear to agree that if I order a stay pending appeal, it may delay the
    responding parties foreign enforcement efforts pending the Ontario appeal. I will
    therefore proceed on that basis. Even so, I do not accept that the loss of
    litigation advantage alleged by the moving parties constitutes irreparable
    harm.

[52]

It is important to appreciate that the moving
    parties have no right to have the matters in dispute litigated only in Ontario.
    Their request for an anti-suit injunction failed; they have not appealed that
    decision.

[53]

Nor do the moving parties have any legal or
    normative claim of right to have the issues disposed of in Ontario before the
    Singapore or UAE Actions are resolved. The Singapore Action preceded the
    Underlying Action. The responding parties had already given notice that the UAE
    Action would be commenced before they were served with the moving parties
    statement of claim in the Underlying Action. The moving parties can have no
    reasonable expectation that the Ontario proceedings should take precedence.

[54]

Moreover, even if the moving parties appeal
    succeeds in showing the Underlying Action in Ontario should not have been permanently
    stayed, the risk remains that matters will be resolved by the Singapore Action and/or
    the UAE Action before any decision on the merits in Ontario. As the moving
    parties pointed out in argument, citing
Amchem
, at p. 914, where no
    one forum is clearly more appropriate than another and parallel litigation occurs,
    it is anticipated and acceptable that the first decision rendered will resolve
    the matter.

[55]

Nor do I have any basis on which to conclude
    that the quality of equity or justice will be compromised if the matters in
    issue are determined in the Singapore or UAE Actions, rather than in Ontario.
    There is no evidence before me to suggest the moving parties will be unable to raise
    their position that TAP has already been paid as a defence in those Actions, or
    that the foreign proceedings will otherwise be unfair. It is therefore
    difficult to accept that irreparable harm arises from the risk that the Singapore
    Action and/or the UAE Action could proceed before this appeal.

[56]

I turn now to the moving parties objection to being
    required to litigate in multiple jurisdictions. In my view, there is weight to
    the responding parties position and the motion judges observation that the
    moving parties have themselves compounded the multiplicity of proceedings by
    initiating the Underlying Action in Ontario. The moving parties objection does
    not resonate with me given that they are asking this court in their appeal to
    re-add the Underlying Action to the ongoing litigation mix.

[57]

Accordingly, I can find no irreparable harm
    arising from any litigation disadvantage if the stay pending appeal is refused.

(ii)   The
    risk of insolvency is not supported by the evidence

[58]

I agree with the responding parties that the
    moving parties did not adequately explain how my refusal to stay the motion
    judges permanent stay of the Underlying Action pending appeal could threaten
    their solvency. There is no evidence to support a finding that the litigation
    costs could cripple them if the motion judges stay is not lifted pending appeal,
    if that indeed is their concern.

[59]

In his affidavit filed in support of this motion,
    Mr. Gupta appears to suggest that the spectre of insolvency arises in part from
    the risk that his assets will be exposed to attachment orders in the UAE. That
    outcome depends on the responding parties successfully prosecuting the UAE Action
    on the merits. On the evidence before me, I cannot find irreparable harm based
    on the financial implications of presumptively fair legal determinations made
    in other jurisdictions.

[60]

In any event, even if the moving parties had
    established a basis on which to conclude that they could be put at risk of
    insolvency if a stay pending appeal is not ordered, this consideration would
    cut both ways. The responding parties could rely on the moving parties risk of
    insolvency to argue that the balance of convenience favours denying the stay,
    since any knock-on delay in enforcement in Asia could compromise the responding
    parties ability to recover funds from parties in supposedly dire financial
    straits.

(iii)  The
    findings made by the motion judge will not cause irreparable harm

[61]

In addition, the moving parties rely on findings
    made by the motion judge which they say amount to summary judgment against them
    undermining their position regarding the alleged Triton payments and the GEM
    and Hangji Security. They say these findings will irreparably prejudice them in
    the Asian proceedings if a stay pending appeal is not granted. I am not
    persuaded that these or any other findings made by the motion judge would cause
    irreparable harm if her decision is not stayed pending appeal.

[62]

First, I do not read the motion judge as having made
    any findings against the moving parties contention that TAP was already paid
    for the debts it is attempting to enforce in Singapore and the UAE.

[63]

The impugned passages must be read in context. When
    she made those findings, the motion judge was addressing the moving parties submission
    that the litigation is presumptively linked to Ontario because TAPs claim
    against UDTG arose from the Rutmet Loan Agreement, making Rutmet the material
    debtor. In my view, the motion judge was doing no more than rejecting this argument
    by noting that the outstanding material issue in the litigation is whether
    certain debts have been paid and the collateral validly enforced under the UIL
    Loan Agreements. Her point was that the UIL Loan Agreements cannot be conflated
    with the Rutmet Loan Agreement for the purpose of identifying the appropriate
    forum for the litigation. As the motion judge noted earlier in summarizing the
    arguments of the parties, neither the UIL Loan Agreements, nor the alleged
    transactions with Triton that led to TAPs alleged repayment under the Rutmet
    Loan Agreement, are linked to Ontario. Hence her finding that the moving
    parties failed to demonstrate a presumptive connecting factor to Ontario.

[64]

Moreover, even if the motion judges factual
    findings do somehow lend support to arguments the responding parties will
    advance in the Singapore Action and/or the UAE Action, the moving parties cannot
    be heard to complain. They initiated the Anti-Suit Motion and, in doing so, advanced
    factual claims to support their position. The findings the motion judge made were
    in large measure responsive to those claims. A partys decision to voluntarily
    assume litigation risk does not qualify as irreparable harm:
M & M
    Homes Inc. v. 2088556 Ontario Inc.
, 2020 ONCA 134, 51 C.P.C. (8th) 253, at
    paras. 39-40. Put simply the moving parties created the risk of the outcome
    they now seek to identify as irremediable harm.

[65]

Accordingly, I am not persuaded that the moving
    parties would suffer irreparable harm if a stay pending appeal is denied.

(c)     The Balance
    of Convenience

[66]

I have already addressed the potential harm the
    moving parties rely upon. I have found none that would be irreparable.

[67]

I accept the moving parties representations
    that they took steps to ameliorate potential harm to the responding parties
    flowing from a stay, such as agreeing to post security for costs and moving to
    expedite the appeal.

[68]

However, these initiatives do not account for
    the most material inconvenience a stay would visit on the responding parties. Both
    the Singapore Action and the UAE Action have already been delayed for many
    months. As noted, granting the stay would likely cause further delay. Delay
    works against the responding parties financial interests. As I have indicated,
    there is no basis before me on which to apprehend that the respective foreign courts
    will proceed unfairly in adjudicating the Singapore and UAE Actions.

[69]

In my view, the balance of convenience favours
    the responding parties.

(d)     Other Considerations

[70]

The moving parties also argued before me that
    the responding parties attorned to the jurisdiction of Ontario by initiating
    the Receivership Application and the EDC Application in Ontario, and by serving
    a notice of motion for security for costs of this appeal. I am not persuaded
    that attornment considerations play any role in this motion for a stay pending
    appeal.

[71]

The moving parties did not have standing in the
    Receivership Application or the EDC Application, and both proceedings were brought
    against parties carrying on business in Ontario. I fail to see how TAPs decision
    to institute those proceedings can fairly be interpreted as an attornment to
    Ontario in the Underlying Action, which was predicated upon offshore agreements
    and transactions involving foreign corporations.

[72]

Nor does the responding parties decision to
    bring a security for costs motion in this appeal assist the moving parties. Attornment
    occurs where a party takes steps suggesting they have accepted jurisdiction, which
    typically are steps to defend the merits of a proceeding: Gerard J. Kennedy,
    Jurisdiction Motions and Access to Justice: An Ontario Tale (2018) 55 Osgoode
    Hall L.J. 79, at p. 103. Attornment does not occur where a party merely
    contests the jurisdiction of the court:
Lilydale Cooperative Ltd. v. Meyn
    Canada Inc.
, 2019 ONCA 761, 439 D.L.R. (4th) 385, at para. 52. Nor does it
    occur where a party takes procedural steps that deal solely with the procedural
    mechanics of the jurisdiction hearing:
Fraser v. 4358376 Canada Inc.
, 2014
    ONCA 553, 324 O.A.C. 68, at para. 15.

[73]

In my view, the responding parties motion for
    security for costs in this jurisdiction appeal is a procedural step related to
    the resolution of the jurisdictional dispute the appeal addresses. It cannot be
    taken as an act of attornment.

[74]

The decisions relied upon by the moving parties
    do not hold otherwise. In
T Films S.A. v. Cinemavault Releasing
    International Inc.
, 2014 ONSC 4138, the motion by the respondents for
    security for costs constituted attornment because it related to the costs of the
    underlying proceeding.

[75]

Nor is there help to be found in the endorsement
    in
1092072 Ontario Inc. (Elfe Juvenile Products) v. GCan Insurance Co.
,
    2008 CanLII 51922 (Ont. S.C.). McWatt J.s
obiter dictum

observation,
    at para. 15, that a security for costs motion would be an act of attornment concerned
    a hypothetical motion related to the substantive underlying action. Indeed,
    McWatt J. later held, at para. 18, that a party who disputes jurisdiction without
    engaging in the merits of the case will not generally be found to attorn.

(e)     Conclusion on the Stay Motion

[76]

It is not in the interests of justice to stay pending
    appeal the motion judges order to permanently stay the Underlying Action. I am
    not persuaded that the moving parties will be irrevocably harmed if the
    requested stay pending appeal is denied, and I am persuaded that the balance of
    convenience favours the responding parties. Although the issues to be adjudicated
    on the appeal are not frivolous or vexatious, the grounds of appeal are not so
    strong as to compensate for the weaknesses I have identified in the other
RJR-MacDonald

factors.

[77]

I would therefore deny the motion for a stay
    pending appeal.

2.       THe Motion to expedite the appeal

[78]

Appeals of this kind are to be expedited only
    where the motion judge is satisfied the urgency of the matter requires an
    earlier hearing date: Practice Direction Concerning Civil Appeals at the Court
    of Appeal for Ontario, (March 1, 2017), at 12
.
1(4).

[79]

I see no urgency in having this appeal heard. The
    moving parties request for an expedited appeal was presented, at least in
    part, as a concession to reduce the harm a stay pending appeal would cause to
    the responding parties. No stay pending appeal is being ordered, and the responding
    parties oppose expedition.

[80]

I would therefore deny the request to expedite
    the appeal.

DISPOSTION

[81]

The motion for a stay pending appeal is
    dismissed, as is the motion for an expedited appeal.

[82]

As agreed by the parties, costs in this motion are
    set at $10,000, inclusive of HST and disbursements, to be allocated by the
    panel hearing the appeal.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: United Mexican States v. Burr,
    2021 ONCA 64

DATE: 20210202

DOCKET: M51771 (C68571)

Lauwers, Miller and Nordheimer JJ.A.

BETWEEN

The
    United Mexican States

Applicant
    (Appellant/Responding Party)

and

Gordon
    G. Burr, Erin J. Burr, John Conley, Neil Ayervais, Deana Anthone, Douglas
    Black, Howard Burns, Mark Burr, David Figueiredo, Louis Fohn, Deborah Lombardi,
    P. Scott Lowery, Thomas Malley, Ralph Pittman, Daniel Rudden, Marjorie Peg
    Rudden, Robert E. Sawdon, Randall Taylor, James H. Watson Jr., B-Mex, LLC,
    B-Mex II, LLC, Oaxaca Investments, LLC, Palmas South, LLC, B-Cabo, LLC,
    Colorado Cancun, LLC, Sante Fe Mexico Investments, LLC, Caddis Capital, LLC,
    Diamond Financial Group, Inc., J. Paul Consulting, LAS KDL, LLC, Mathis Family
    Partners, Ltd., Palmas Holdings, Inc., Trude Fund II, LLC, Trude Fund III, LLC,
    Victory Fund, LLC

Respondents
    (Respondents/Moving Parties)

and

United
    States of America and Attorney General of Canada

Interveners

John Terry and Hannah Allen, for the
    moving parties

Robert J.C. Deane, Hugh Meighen and
    Ashley Thomassen, for the responding party

Heard: November 30, 2020 by video conference

On appeal from the judgment of Justice Bernadette
    Dietrich of the Superior Court of Justice, dated July 20, 2020 with reasons
    reported at 2020 ONSC 2376.

Lauwers J.A.:

[1]

The application judge dismissed the application
    by the United Mexican States (Mexico) to set aside an arbitral tribunals Partial
    Award. Mexico appealed. The moving parties, who were the respondents in the
    application below, move to quash Mexicos appeal. For the reasons that follow,
    I would quash the appeal.

A.

Background

[2]

The North American Free Trade Agreement gives
investors the right to seek damages for the failure of a party
    (Canada, Mexico, or the United States of America) to honour a treaty commitment.
    The moving parties are thirty-nine USA nationals who brought claims
    individually and on behalf of seven Mexican companies totalling some USD$100
    million to compensate for losses allegedly caused by Mexicos closure of the
    casinos they had been operating in that country.

[3]

The arbitral tribunal was constituted under c.
    11 of NAFTA on February 14, 2017. On April 4, 2017 the tribunal bifurcated the
    proceedings into a jurisdiction phase and a merits and damages phase. The
    jurisdiction phase was heard over five days in May 2018.

[4]

A majority of the tribunal determined that the
    tribunal had jurisdiction over all but one of the moving parties claims.
    Mexico applied to the Superior Court of Justice to set aside the tribunals
    decision under s. 11 of the
International Commercial Arbitration Act
,
2017
,
    S.O. 2017, c. 2, Sch. 5 (ICAA) and arts. 16 and 34 of the
UNCITRAL Model
    Law on International Commercial Arbitration
, adopted by the United Nations
    Commission on International Trade Law on June 21, 1985, as amended on July
    7, 2006 (the Model Law). The Model Law has the force of law in Ontario under
    s. 5 of the ICAA, subject to any modifications set out in the Act. The
    legislation specified that the Ontario Superior Court of Justice is the court
    with jurisdiction to review the decision of the arbitral tribunal.

[5]

The application judge dismissed the application,
    holding that Mexico had not discharged its burden of proof of establishing
    that the Tribunal was incorrect in its conclusion that it had jurisdiction over
    all but one of the claims before it.

B.

The Issue

[6]

The issue before this panel is whether the
    application judges ruling can be appealed to this court.

[7]

Whether the appeal should be quashed depends
    upon whether Mexicos application is governed only by art. 16(3) of the Model
    Law, which would prohibit an appeal of the application judges decision, or if
    it is also governed by art. 34 of the Model Law, which would permit an appeal.

C.

Analysis

[8]

The focal point of the analysis in this case is
    art. 16 of the Model Law. Article 16(1) gives arbitral tribunals the competence
    to rule on their own jurisdiction, as the tribunal did in this case. Article
    16(2) specifies when a party must raise a plea that the arbitral tribunal does
    not have jurisdiction. Article 16(3) specifies how the tribunal may proceed
    when its jurisdiction is challenged. It also gives a role to the Ontario
    Superior Court of Justice and prohibits certain appeals.

[9]

The text of art. 16(3) makes a clear distinction
    between a jurisdictional plea that is pursued as a preliminary question and a
    jurisdictional plea that is pursued in an award on the merits. Article 16(3)
    provides:

(3) The arbitral tribunal may rule on a plea
    referred to in paragraph (2) of this article
either as a
    preliminary question or in an award on the merits
.
If
the arbitral tribunal rules as a
preliminary question
that it has jurisdiction, any party
    may request, within thirty days after having received notice of that ruling, [the
    Ontario Superior Court of Justice] to decide the matter,
which
    decision shall be subject to no appeal
; while such a request is pending,
    the arbitral tribunal may continue the arbitral proceedings and make an award.
    [Emphasis added.]

[10]

The text of art. 16(3) requires this court to
    consider whether the tribunals ruling was on a preliminary question of
    jurisdiction. If it was, then the application judges ruling cannot be appealed
    to this court; in the language of art. 16(3), the application judges ruling is
    subject to no appeal.

[11]

By contrast, art. 34 of the Model Law also provides
    for a right of [r]ecourse to a court against an
arbitral
    award
 (emphasis added), but this language arguably contemplates only the
    recourses available against an award on the merits rather than on a preliminary
    question of jurisdiction. In an application under art. 34, the Model Law places
    no limits on the parties ability to appeal from the decision of the Superior
    Court.

[12]

In this case, I conclude that the arbitral
    tribunals ruling was on a preliminary question of jurisdiction under art. 16(3)
    so that a further appeal does not lie to this court. I reach this conclusion
    for four reasons.

(1)

The arbitral tribunals view of what it was
    doing

[13]

First, the arbitral tribunal saw itself as
    addressing jurisdiction as a preliminary question. In its Partial Award, dated
    July 19, 2019 the tribunal noted that from 21 May 2018 to 25 May 2018, the
    Tribunal held a
hearing on jurisdiction
in
    Washington, D.C. (emphasis added): at para. 22. The tribunal specified: In
    this
first phase
the Tribunal shall decide
three preliminary issues
 (emphasis added): at para. 41.
    Based on its interpretation of various provisions of NAFTA, the tribunal dismissed
    most of Mexicos objections, decided that it had jurisdiction over certain
    claims and, in its final paragraph: directs the Parties to confer regarding a
    procedural timetable for
the merits phase

    (emphasis added): at para. 273.

(2)

The arbitral tribunal has embarked on the merits
    phase

[14]

Second, the arbitral tribunals decision did not
    address the substantive merits of the dispute, and the merits phase of the
    dispute is now proceeding despite Mexicos effort to appeal the application
    judges ruling. As noted, this sequence of proceedings is contemplated and
    expressly permitted by art. 16(3): while such a request [to the Superior
    Court] is pending, the arbitral tribunal may continue the arbitral proceedings
    and make an award.

(3)

The argument before the application judge did
    not address art. 34 of the Model Law

[15]

Third, Mexico did not focus on art. 34 in its
    application to the Superior Court. Mexico cited art. 34 only in the title of its
    notice of application, and in the introductory paragraph of its factum. Its
    factum contained only two other references to art. 34:

23. The application to set aside the Partial
    Award is governed by Article 34 of the
Model Law
. Article 34(2)(a)
    provides that an arbitral award may be set aside if the award deals with a
    dispute [] not falling within the terms of the submission to arbitration or
    if the composition of the arbitral tribunal or the arbitral procedure was not
    in accordance with the agreement of the parties. (Citing Model Law, Art.
    34(2)(a)(iii) and (iv).)

76. The failure to comply with Articles 1119
    and 1121 meant that Mexicos consent to arbitration was not engaged, and the
    Tribunal was deprived of jurisdiction. The Partial Award holding the contrary
    must therefore be set aside, in whole or in part, pursuant to Article 34(2)(a)(iii)
    and (iv) of the
Model Law
.

[16]

It is difficult to reconcile these positions
    with Mexicos statement at para. 22 of its factum before the application judge
    that: The Partial Award,
issued pursuant to Article
    16(2) of the Model Law
, is a final decision by the Tribunal in respect
    of its jurisdiction (emphasis added). As noted above, a final decision on
    jurisdiction may still be dealt with as a preliminary question within the
    meaning of art. 16.

[17]

Similarly, Mexicos counsel did not address the
    substance of art. 34 in oral argument before the application judge. The context
    was set in oral argument before the application judge by counsel for the NAFTA
    claimants, who are the moving parties before this court. Counsel focused on s.
    11(1) of the ICAA and on art. 16 and steered the application judge away from
    art. 34. He said, speaking for himself and counsel for Mexico:
[W]e agree  that there is no appeal from your decision in this
    case
. And this  thats an unusual circumstance obviously (emphasis
    added). Counsel then provided an explanation to the application judge:

[T]here are two ways in which  in which a
    party under the
International Commercial Arbitration Act
here in
    Ontario can bring forward an application to this court to set aside a decision.
    One way is the Article 34 route, this is article 34 of the Model Law. And you
    can bring forward a decision and
quite often thats done
    in a case where the Tribunal has reached a final award
, and youre
    seeking to set aside that for exceeding jurisdiction or some other issue.
    Sometimes that can be done also if there is a jurisdictional award. Under that
     under that it would follow the normal process, youd make your decision and
    then there would be, you know, the normal rights of appeal. Under this
    particular provision, and Mr. Deane took you to the particular provision
    under s. 11 of the
International Commercial Arbitration Act
which
    replicates which  whats in
Article 16 of the Model Law.
    Its designed to be an expedited process where a party can seek recourse to a
    judge, the judge makes the determination, and thats the end of it, theres no
    appeal
. So, for better or for worse, thats the  that is the statutory
    framework under which were operating here. [Emphasis added.]

[18]

Mexicos counsel did not object to these statements
    before the application judge. For his part, Mexicos counsel made scant
    reference to art. 34. At the outset he noted that this was an application under
    s. 11(1) of the ICAA, and arts. 16 and 34 of the Model Law. However, most
    of his oral submissions focused on s. 11(1) of the ICAA and art. 16 of the
    Model Law, not art. 34. The references to art. 34 came only in his reading of lengthy
    quotations from this courts decision in
United Mexican States v. Cargill,
    Inc.
, 2011 ONCA 622, 107 O.R. (3d) 528, on the standard of review applicable
    to a decision of an arbitral tribunal.

[19]

In his submissions to the application judge, Mexicos
    counsel also invoked the decision of Penny J. in
The

Russia Federation
    v. Luxtona Limited
,

2019 ONSC 7558. That ruling concerned
    the admissibility of fresh evidence in an application under art. 16 of the
    Model Law. Penny J. cited art. 34 in his discussion of the standard of review
    set out in
Cargill
. Although he referred incidentally to both arts. 16
    and 34, he did not explain the connection between the two articles or explicate
    art. 34.

[20]

Cargill
does
    not assist Mexico. In that case, the arbitral tribunal made an award on the
    merits of the dispute that gave the claimant
Cargill
damages against
    Mexico for protectionist measures it enacted in favour of its sugar industry. During
    the proceedings, an objection was raised as to whether the tribunal could award
    upstream damages for losses
Cargill
suffered in the United States as
    well as downstream losses it suffered in Mexico. Mexico framed this as a
    question of the tribunals jurisdiction. In its final award, however, the
    tribunal ruled that the damages issue was not a jurisdictional question and
    that NAFTA permitted
Cargill
to recover upstream losses. Mexico
    applied to the Superior Court to decide the matter and set aside the award.

[21]

The application judge in
Cargill
dismissed the application on the basis that the arbitral tribunals decision
    hinged on factual findings to which deference was owed: 2010 ONSC 4656. Because
    the tribunals ruling was not on a preliminary question but an award on the
    merits, the art. 16(3) prohibition on an appeal from the Superior Courts ruling
    did not apply. Mexico appealed the Superior Courts ruling to this court, as it
    was entitled to do. This court dismissed the appeal in a decision that largely
    focussed on the interpretation of art. 34 and, as noted, set the standard of
    review.

(4)

The application judges ruling did not turn on
    the substance of art. 34

[22]

Fourth, the application judges ruling,
    consistent with the arguments she heard, did not turn on the substance of art.
    34. She noted, at para. 37, that Mexico was applying under s. 11(1) of the ICAA
    and art. 34 of the Model Law. She then stated, at para. 38, effectively quoting
    counsel:

The
ICAA
applies because ICSID chose
    the City of Toronto as the seat of the arbitration. Section 11(1) of the
ICAA
provides that where the majority of the arbitration tribunal determines it has
    jurisdiction, any party may apply to the Superior Court of Justice to decide
    the matter. The decision of the Superior Court of Justice is subject to no
    appeal:
Model Law
, Article 16(3).

[23]

The application judge quoted art. 34 at para. 39
    and did not refer to it again until para. 155 in her discussion of the standard
    of review emerging from
Cargill
. The substance of art. 34 played no
    role in her decision, just as it did not in the argument of the parties before
    her.

[24]

Perhaps Mexicos occasional references to art.
    34 were intended to assist the application judge in understanding her function
    under art. 16. Perhaps Mexico was seeking to preserve plausible
    arguability under art. 34 in the event that the application did not go
    well for it. Regardless, it is clear that there was no substantive argument on
    how art. 34 applied on the facts of this case before the application judge. Mexicos
    argument that art. 34 of the Model Law applies to this appeal, along with art. 16(3),
    does not bear scrutiny.

[25]

There is also no basis for concluding, as Mexico
    argues, that the label of Partial Award, which the arbitral tribunal attached
    to its ruling, is a sufficient hook with which to snag art. 34(1). I would
    reject this argument. This was not an award on the merits, as the tribunal
    itself noted.

D.

Additional Observations

[26]

Counsel agreed that there is no right of appeal
    from the decision of an application judge under art. 16 and that there is a right
    of appeal from the decision of an application judge under art. 34. I would
    agree but on a more nuanced basis. The text of art. 16(3) prohibits an appeal
    from the ruling of a Superior Court judge on the correctness of an arbitral tribunals
    ruling on a jurisdictional plea that is pursued as a preliminary question. The
    text of art. 34(1) provides that a party may seek [r]ecourse to a court against
    an arbitral award only by an application for setting aside, where the tribunals
    ruling on a jurisdictional plea was contained in an award on the merits, in
    the words of art. 16(3).

[27]

Counsel for both parties asserted that it is
    possible for a party to rely on both art. 16 and art. 34 in challenging the
    ruling of an arbitral tribunal, in other words, to ride both horses, which
    was the metaphor put to counsel and adopted by them in argument. However, I
    would observe that the position that an appeal is prohibited where a ruling is
    pursued as a preliminary question under art. 16(3) has the benefits of
    clarity, simplicity and expediency for which international commercial
    arbitration is touted.

[28]

This question of whether both horses can be
    ridden might need to be resolved but it would be unwise for this court to
    undertake an interpretation of art. 34 and its interaction with art. 16
    beyond what is required to dispose of this motion in the absence of full
    argument by parties committed to opposite perspectives in the court below. Mexico
    argues that it proceeded under both articles before the application judge but,
    as I have explained, it did not.

E.

Disposition

[29]

To summarize, I would quash the appeal to this
    court because the argument before the application judge proceeded substantially
    under art. 16. While there were several references to art. 34 in the pleadings,
    in the material, and in argument, they were scant. Neither the substantive issues
    before the application judge nor her decision turned on art. 34. Accordingly, I
    would give effect to the language in art. 16(3) of the Model Law that prohibits
    an appeal from the ruling of the application judge on the arbitral tribunals
    ruling on a preliminary question of jurisdiction.

[30]

The moving parties are entitled to costs in the
    all-inclusive amount of $9,000, as agreed.

Released: P.L. February 2, 2021

P.
    Lauwers J.A.

I
    agree. B.W. Miller J.A.

I
    agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Uribe v. Tsandelis, 2021 ONCA 377

DATE: 20210603

DOCKET: C68163

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

Maria Angelica E. Uribe, Ricardo
    Adolfo Uribe, Elijah Richardo Uribe, a minor, by his litigation guardian, Maria
    Angelica E. Uribe

Plaintiffs (Respondents)

and

Grand River Hospital,
Dr. Nickoli Tsandelis,
S. Niyssonen, R. Brzorowski, M. Godwin,
    and Jane Doe

Defendant (Appellant)

Darryl Cruz and Christine Wadsworth,
    for the appellant

Daniel Fife and Maple Anne Cameron, for
    the respondent

Heard: April 23, 2021 by video conference

On appeal from the judgment of Justice James
    R.H. Turnbull of the Superior Court of Justice, dated December 6, 2019.

Benotto J.A.:

OVERVIEW

[1]

The appellant
Dr. Nickoli Tsandelis
is an obstetrician who treated Ms. Uribe during her pregnancy and
    delivered her baby. A jury concluded that his negligence caused brain damage to
    the baby.

[2]

Ms. Uribes pregnancy was uneventful until the babys heart rate decelerated
    52 minutes before delivery. The obstetrical nurse applied standard procedures
    and the heart rate stabilized. She telephoned the appellant who was in his
    office about five minutes away. He told her to let him know if the heart rate
    dropped again. He did not immediately return to the hospital.

[3]

About fifteen minutes later, the heart rate decelerated again and soon
    thereafter there were additional signs of fetal distress. The appellant was in
    his car on the way to the hospital when the nurse called him again advising him
    about the second deceleration.

[4]

The baby had to be delivered immediately through a cesarean section.
    However, the operating room had already been prepared for an elective
    operation. The other patient had to be moved, the room sterilized, and Ms.
    Uribe anaesthetized and prepared for surgery. By the time the baby was
    delivered, he had endured too long without oxygen and suffered serious brain
    damage.

[5]

Ms. Uribe, together with her husband and as litigation guardian for her
    child, brought an action against Dr. Tsandelis alleging that he was negligent
    by not returning to the hospital or preparing for a caesarean section
    immediately after the first phone call from the nurse.

[6]

A jury found that the appellant had breached the standard of care and
    that this caused the damage. The jury attributed 32% responsibility to the
    appellant and the rest to the hospital and other defendants. (The hospital and
    other defendants had previously settled pursuant to a Pierringer Agreement.)

[7]

Dr. Tsandelis appeals on the basis that the jury erred with respect to
    causation because they failed to apply the but for test and that there was no
    evidence that the baby would have been delivered in time to avoid the brain
    damage. He further submits that the trial judge unfairly intervened in the
    questioning of witnesses.

[8]

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

FACTS

[9]

Maria Angelica Uribe was referred to Dr. Tsandelis by her family
    physician. Dr. Tsandelis, an experienced obstetrician and gynecologist, had an
    office five minutes away from the Grand River Hospital where he had privileges.

[10]

Ms.
    Uribes pregnancy was considered low risk. It proceeded uneventfully. She was
    admitted to the hospital on April 28, 2010 and given Cervidil to induce labour.
    She returned to the hospital early the following morning in labour. She was
    admitted to the hospital and assigned a room on the delivery floor. Saara
    Nyyssonen took over as her dedicated obstetrical nurse.

[11]

By
    9:00 a.m. labour had stopped progressing. The cervix was not dilating further.
    Dr. Tsandelis saw her and had no concerns but explained that a caesarian
    section would most likely be necessary. He returned to his office. There were
    two other obstetricians in the hospital that morning, including one who was
    on-call. By 9:30 a.m., labour had not progressed despite Ms. Uribe being given
    oxytocin to assist in cervical dilation.

[12]

At
    9:57 a.m. the babys heart rate decelerated. The nurse increased the
    inter-venous fluid, turned Ms. Uribe and watched the fetal heart rate. It
    stabilized at around 10:02 a.m. The nurse telephoned Dr. Tsandelis. He told her
    to call him if there was another deceleration. He remained at his office and
    saw one or two more patients.

[13]

Between
    10:17 a.m. and 10:18 a.m., the fetal heart rate again decelerated. At 10:20 am,
    the baby restabilized and the nurse examined Ms. Uribe vaginally and found no
    evidence of meconium, which would indicate fetal distress. At 10:25 a.m., there
    was a total occlusion of the umbilical cord, cutting off blood and oxygen
    supply to the baby. The nurse examined Ms. Uribe again and found meconium. At
    10:27 am, the nurse called Dr. Tsandelis, who was in his car and on the way to
    the hospital.

[14]

Meanwhile,
    another patient had been taken into the operating room at 10:20 a.m. for a
    pre-arranged elective caesarian section booked for 10:30 a.m. The one other
    operating room had not yet been cleaned from a prior procedure.

[15]

Ms.
    Uribe was in the operating room at 10:35 a.m. The appellant arrived at 10:40 a.m.
The other members of the birthing team were not ready to
    perform the surgery. The anesthetist only started anesthesia at 10:40 a.m. The
operation began at 10:48 a.m. One minute later, the baby was delivered. He
    suffers from severe cerebral palsy and other serious medical conditions.

THE SOGC GUIDELINES

[16]

The
    Society of Obstetricians and Gynecologists of Canada (SOGC)
[1]
provide guidelines which address
    the response when the fetal heart rate drops to the levels observed here. When
    a deceleration occurs of more than 3 and less than 10 minutes, the doctor must
    promptly prepare for delivery.

[17]

The
    respondents experts testified that the appellant should have returned to the hospital
    immediately upon receiving the first call from the nurse. The appellants
    experts testified that he did not breach the standard of care by remaining in
    his office.

[18]

It
    was generally agreed that brain injury would have occurred quickly after the
    10:25 occlusion. One expert said the window for delivery was 8 to 12 minutes;
    another said 8 to 15 minutes. Either way, the timing was critical. It was
    agreed by the experts that if the baby had been delivered within the window, or
    before the occlusion, the severe damage would not have occurred.

THE JURY VERDICT

[19]

The
    jurys task was to determine whether the appellant had breached the standard of
    care, and to determine causation. Because the other defendants had settled, the
    jury was to then assess whether the hospital and/or nurses breached the
    standard of care and, if so, whether causation with respect to them had been
    proved. Finally, the jury was to apportion liability as between Dr. Tsandelis
    and the hospital/nurses.

[20]

The
    jury considered first the questions related to Dr. Tsandelis, then the hospital
    and/or nurses and finally the apportionment of damages.

[21]

With
    respect to Dr. Tsandelis, the jury was asked the following questions and gave
    the following answers.

Standard of Care

1.   (a) Have the plaintiffs proven on a balance of
    probabilities that Dr. Tsandelis breached the standard of care of a reasonable
    prudent obstetrician on Ontario?

Yes

(b)  If your answer to question 1(a) is yes, how did Dr.
    Tsandelis breach the standard of care? Please provide clear and specific
    answers:

At the time of the first phone call from
    Nurse Nyyssanen the Guidelines of SOGC were not followed by Dr. Tsandelis to
    prepare for delivery. The SOCG Guidelines state that when there is a single
    abnormal intrapartum electronic fetal monitor tracing of (more than 3 less than
    10) minutes, health professionals must prepare for delivery (Exhibit 4, pg.
    S37/38)

Causation

2.   (a) If your answer to 1(a) is yes, you must answer the
    following question. Have the plaintiffs proven on the balance of probabilities
    that but for the breach(es) of the standard of care by Dr. Tsandelis, [the
    baby] would not have suffered brain damage?

Yes

(b)  If your answer to question 2(a) is yes, how did Dr.
    Tsandelis breach(es) of the standard of care cause [the babys] brain damage?
    Please provide specific answers:

The fact that
    Dr. Tsandelis didnt follow the SOGC Guideline, prepare for delivery,
    contributed to [the babys] eventual brain damage. For example, Dr. Tsandelis
    didnt initiate the birthing team &/or the O.R. at the critical time of the
    1st deceleration, valuable time elapsed. If Dr. Tsandelis would have secured
    the O.R. prior to the elective c-section patient being moved in at 10:20, the
    O.R. would have been ready for Maria and [the baby] would have been delivered
    sooner avoiding the asphyxia altogether. The c-section could have been
    performed right away & there would be no need to wait on necessary support
    personnel because at the time of the 1st deceleration it wasnt an urgent
    matter yet. The rest of the birthing team that were already booked for the
    elective c-section at 10:30 could have been used by any O.B. performing the
    c-section of Maria.

[22]

With
    respect to the hospital/nurses, the jury found that Dr. Tsandelis had
    established both a breach of standard of care (question 3(a)) and causation
    (question 4(a)).

[23]

With
    respect to allocation of damages, the jury was asked the following question and
    gave the following answer:

Allocation

5.       If you have answered yes to questions 1(a), 2(a), 3(a)
    and 4(a), you must answer the following question. If you find that Dr.
    Tsandelis and the Hospital/nurses breached the standard of care and that those
    breaches were causative of [the babys] brain damage, please state what
    percentage of liability is allocated to each of the defendants below.

The sum of the stated percentages must total 100%.

Dr. Tsandelis                                     32%

Grand River Hospital/Nurses              68%

Total                                                  100%

MOTION UNDER R. 52.08(1)

[24]

After the jurys verdict, the appellant brought
    a motion under r. 52.08(1) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, requesting that the trial judge not enter the judgment and
    either dismiss the action or order a new trial. The trial judge dismissed the
    motion and ordered judgment to be entered in accordance with the jury verdict.

[25]

I discuss this in more detail below.

ISSUES ON APPEAL

[26]

Dr. Tsandelis appeals the judgment alleging that
    the trial judge erred by (i) failing to dismiss the action or order a new trial
    pursuant to r. 52.08(1); and (ii) by improperly questioning witnesses during
    the trial.

ANALYSIS

[27]

The appellant frames the issues as an appeal
    from the trial judges dismissal of the r. 52.08 motion. However, the two
    grounds for the motion are the primary issues in this appeal. Both relate to
    causation: (i) that the jury did not apply the but for test for causation;
    and (ii) the jury verdict was unreasonable because there was no evidence that
    the baby would have been delivered early enough to avoid the damage.

[28]

I therefore address the issues as follows:

1.

Did the jury apply the but for test for
    causation?

2.

Was the jury verdict unreasonable?

3.

Did the trial judge err by dismissing the r. 52.08(1)
    motion?

4.

Were the trial judges questions improper?

The but for test

[29]

Once it is established that the defendant has
    breached the duty of care, the trier of fact moves to consider causation. The but
    for test for causation was set out in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181,
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 defendants negligent act, the injury would
    not have occurred. Inherent in the phrase but for is the requirement that the
    defendants negligence was
necessary
to bring about the injury
    ― in other words that the injury would not have occurred without the
    defendants 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 in original.]

[30]

The appellant argues that the jury did not apply
    this test, but rather applied the material contribution test, which the jury
    was not charged on. The parties on appeal agree that the but for test was the
    correct test to charge the jury on and that the material contribution test did
    not apply to these facts. The appellant points to the jurys answer to question
    2(b):

The fact that Dr. Tsandelis didnt
    follow the SOGC Guideline, prepare for delivery,
contributed to
[the babys] eventual
    brain damage. [Emphasis added.]

[31]

I do not agree that the
jurys words
    contributed to mean that the material contribution test was applied. The
    words responded to the questions asked and  as jurisprudence demonstrates
    are consistent with the but for test.

[32]

The jury was asked to determine causation and
    then to determine allocation. Note the jury instructions:

[C]ausation is established if the evidence
    satisfies you that it is more likely than not that [the baby] would not have
    suffered brain damage but for the negligent conduct or breach of the standard
    of care by Dr. Tsandelis. In other words, although
you do not have to find that it was the
    sole cause
, does the evidence prove that the
    negligent conduct...was necessary to bring about [the babys] brain damage. [Emphasis
    added.]

And further:

[T]he defendants
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. The plaintiffs
    must show on a balance of probabilities that the injury would not have occurred
    without the defendants negligence. Depending on your answers to some of the
    questions, you will be asked to determine the issue of causation with respect
    to Dr. Tsandelis and the nurses and Grand River Hospital. If you find that the
    acts or omissions of both Dr. Tsandelis and/or the nurses and/or the Grand
    River Hospital caused [the baby]s brain damage, then as I pointed out to you earlier,
    youll be required to apportion a degree of responsibility of each party as I
    pointed out in reviewing the question. [Emphasis added.]

[33]

It is not surprising that, when there is more than one potential
    tortfeasor, language relating to contribution would arise. This is particularly
    so when the jury is also required to apportion damages. This was addressed in
Clements
at para. 12:

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.

[34]

When the jury is asked to consider contributory negligence, it is
    understandable that it would use the language of contributed to. It does not
    mean that the instructions with respect to the but for test or causation were
    not followed, or that the jury applied the material contribution test. The jury
    response continued to state that, if Dr. Tsandelis had met his duty by
    preparing for delivery after the first deceleration, the O.R. would have been
    ready for Maria & [the baby] would have been delivered sooner avoiding the
    asphyxia altogether. This response indicates that the jury concluded that, but
    for the appellants failure to meet the standard of care, the brain damage
    would not have happened.

[35]

As this court recently said in
Donleavy v.
    Ultramar Ltd.
, 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at
    para. 72:

Even in the but
    for context, there are situations involving multiple defendants where courts
    have used contribution language to recognize that a defendants negligence is
    a cause of the plaintiffs injury. This is a potential source of confusion.
    The phrase caused or contributed is used in the
Negligence Act
,
    R.S.O. 1990, c. N.1, s. 1. As Lauwers J.A. observed in
Sacks v. Ross
, 2017
    ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused [2017] S.C.C.A. No.
    491, at para. 117, this is the way the causation test has been described in
    several cases in the Supreme Court (including as I noted earlier in
Athey
),
    and in this court; see also
White v. St. Josephs Hospital (Hamilton)
,
2019 ONCA 312
, at para. 25. Causation is made out under the but for test
    if the negligence of a defendant caused the whole of the plaintiffs injury, or
    contributed, in some not insubstantial or immaterial way, to the injury that
    the plaintiff sustained. Causation requires a substantial connection between
    the injury and the defendants conduct:
Resurfice
, at para.
    23,
Clements
, at paras. 20-21, 28. As Paciocco J.A. noted
    in
Smith v. Safranyos
, 2018 ONCA 760, at para. 128,
    McLachlin C.J.C.s reference to a robust and common sense application of the
    but for test of causation is a manifestation of this limit. Used in this
    way, the conclusion that one or more defendants materially contributed to a
    plaintiffs injury or loss simply recognizes that the defendants negligence
    was not the only cause.

[36]

Likewise, here. The jurys statement that the
    appellants conduct contributed to the damage merely recognizes that there was
    more than one cause. Note that in
Donleavy
, this court was considering
    the words of a trial judge, not a jury comprised of lay persons.

[37]

When there is more than one tortfeasor, contributory language might
    arise. It does not mean the wrong causation test was used. It is clear from the
    jury
s answer
that the proper test
    was used.

Unreasonable verdict

[38]

The appellant submits that there was no evidence
    from which the jury could conclude that the damage would not have occurred if
    the appellant had not been negligent. In other words, there is no evidence that
    the baby would have been delivered earlier and therefore the verdict is
    unreasonable.

[39]

A jury is entitled to draw reasonable inferences
    from accepted evidence. In
Stilwell v. World Kitchens
, 2014 ONCA 770,
    327 O.A.C. 146, this court said, at paras. 32-34:

[I]t is important to have regard to two
    well-developed and long-standing principles of law related to civil jury
    trials.

First, the standard of review of civil jury
    verdicts is exceptionally high. A civil jurys verdict should be set aside only
    where it is so plainly unreasonable and unjust that no jury reviewing the
    evidence as a whole and acting judicially could have arrived at the verdict.

Second, a jurys verdict is entitled to a fair
    and liberal interpretation in light of the evidence and of the circumstances.
    Answers by a jury should be given the fullest possible effect and supported, if
    possible, by any reasonable construction. A new trial should be ordered only
    where the jury seems to have confused  the issues at trial, it is doubtful
    whether the jury paid attention to the real point in issue, and the questions
    answered or unanswered leave the real issue in doubt and ambiguity. [Citations
    omitted.]

[40]

The appellant submits that there was no evidence
    from which the jury could come to a conclusion that, had the appellant met the
    standard of care, the baby would have been delivered before the damage
    occurred. He submits that general statements that the baby could have been
    delivered earlier do not satisfy the causation requirement.

[41]

The appellant relies on
Salter
v. Hirst
, 2011 ONCA 609, 341 D.L.R. (4th) 231. In
Salter
, this
    court concluded that, while the doctor was negligent in not transferring the
    patient to another hospital for further testing, there was no expert evidence
    to support the conclusion that the delay caused or contributed to the patients
    paraplegia. That is not the case here.

[42]

Here there was direct evidence from which the
    jury could conclude that, had the appellant not breached the standard of care,
    the caesarian section would have been done before the damage occurred. The jury
    found that the appellant breached the standard of care because he did not
    prepare for delivery after the first deceleration. Had he done so he would have
    secured the operating room. The operating room would have been ready for Ms.
    Uribe and the baby would have been delivered before the damage. The jury said
    this:

If Dr.
    Tsandelis would have secured the O.R. prior to the elective c-section patient
    being moved in at 10:20, the O.R. would have been ready for Maria and [the baby]
    would have been delivered sooner avoiding the asphyxia altogether.  The rest
    of the birthing team that were already booked for the elective c-section at
    10:30 could have been used by any O.B. performing the c-section of Maria.

[43]

This was a logical and available conclusion from the evidence
    that he should have returned to the hospital.
Dr. Barrett and
    Dr. Farine testified that the appellant should have gone to the hospital
    immediately after the first call from the nurse to assess the situation
    directly. Dr. Farine testified that if the appellant had been present at the
    hospital after the first phone call, the delivery would have occurred very
    quickly. Dr. Barrett testified:

[T]his is the time

to do a caesarian section and get a good outcome. It is absolutely
    indicated here. Again, my point is, even if you dont do it there, you come to
    the hospital. You be there if you start the oxytocin. You are not in your
    office waiting for the disaster to happen. [Emphasis added.]

Dr. Barrett also said that:

[A]t this time I believe there was an anesthesia,
    I believe there was an operating room. The patient they could have easily just
    moved her and done a caesarian section.

[44]

Recall the timing. The first phone call was at 10:02. Dr. Tsandelis
    was five minutes away and could have been at the hospital by 10:07 at which
    point he would have seen the fetal heart rate tracing, examined Ms. Uribe and
    called for an immediate caesarian section. At the very least, she would have
    been in the operating room by 10:25 when the total occlusion occurred. Even if
    he had not returned to the hospital, had he instructed staff to prepare for
    delivery, there were two other obstetricians there to conduct the surgery.

[45]

Consequently, the jury had the evidence to
    conclude that the caesarian section would have been done in time to avoid the
    brain damage. It was open to the jury to accept the evidence of Dr. Barrett and
    Dr. Farine and conclude that the caesarian section would have been done within
    8-15 minutes of the total occlusion, which would have avoided brain damage. The
    conclusion was not unreasonable.

Rule 52.08 motion

[46]

After the jury was discharged, the appellant
    moved under r. 52.08 on the basis that the jury failed to apply the but for
    test and that there was no evidence of causation. The appellant asked the trial
    judge to either dismiss the action or direct that it be retried with another
    jury.

[47]

The rule provides:

DISAGREEMENT OF THE JURY

52.08
(1)
    Where the jury,

(a)  disagrees;

(b)  makes no finding on which
    judgment can be granted; or

(c)
    answers some but not all of the questions directed to it or gives conflicting
    answers, so that judgment cannot be granted on its findings,

the
    trial judge may direct that the action be retried with another jury at the same
    or any subsequent sitting, but where there is no evidence on which a judgment
    for the plaintiff could be based or where for any other reason the plaintiff is
    not entitled to judgment, the judge shall dismiss the action.

[48]

Here the jury did not disagree. Nor did the jury
    fail to answer all of the questions. In my view the jury did not fail to make
    findings on which judgment could be granted.

[49]

Nonetheless, the trial judge thoroughly and
    correctly addressed the appellants submissions. He examined the evidence in
    detail to conclude that there was evidence to support the jury verdict and used
    the proper foundation for reaching the verdict.

[50]

For the same reasons that I have set out above,
    the trial judge correctly determined that the motion should be dismissed.

Trial judges questions

[51]

The appellant submits that the trial judge
    improperly questioned witnesses by introducing a new theory of liability
    supporting the respondents case. He submits that the theory on which the jury
    found liability was a failure to prepare for delivery after the first phone
    call from the nurse.

[52]

The appellant points to sections of the evidence
    of Nurse Nyyssonen, Dr. Dan Farine (the respondents expert) and Dr. John Smith
    (the appellants expert). In each case, the trial judge posed the questions at
    the conclusion of the witnesss evidence and then asked counsel if there were
    any questions arising from his. The relevant portions of the transcript are as
    follows.

Saara Nyyssonen

THE COURT:  I just have one or two questions
    for you. At or about 10:20, you indicated you understood the baby was in
    distress?

A. Yes.

THE COURT:  And you realized that a C-section
    was going to have to be performed?

A. Yes.

THE COURT: You realized Dr. Tsandelis had to
    be notified right away?

A. Yes, I believe, or was he already notified.
    I'm not sure. 10:25 he was.

THE COURT:  Right.

A. According to this, yes.

THE COURT: And do you recall if it was you who
    contacted Dr. Tsandelis or was it someone else?

A. I believe  this, again, I can't say a
    hundred percent, but I believe it was me who talked to him, but whether I
    initiated  whether somebody else initiated the call.

THE COURT:  And you'd have expressed to him
    the urgency of the situation?

A. Yes.

THE COURT:  At any time did he direct you to
    have the on-call obstetrician to immediately perform the C-section?

A. No, I don't recall that at all.

THE COURT:  And if he had, would you have
    noted it?

A. Yes.

THE COURT:  And had the on-call...

A. As it was related to me.

THE COURT:  Right.

A. That knowledge. If it had been related to
    me, I would have charted it.

THE COURT:  And as the most responsible
    doctor, was it he who would have to give that direction, in your practice?

A. Yes.

Dr. Dan Farine

THE COURT:  I just might have a question or
    two. Doctor, I, I just have one question. Doctor Tsandelis got the phone call
    around 10:25. Whats the, what's the practice, what  I guess the question is
    could he at that stage have directed that the crash C-section be performed by
    the on-call obstetrician?

A. Absolutely.

THE COURT:  All right.

A. He, he should have asked, "Is somebody
    there that can do it?"  And, and he should say, "I'm on my way, I'll
    be there as fast as I can, but somebody else can start it."

THE COURT:  Okay, thank you. Any questions
    from mine?

MR. BENNETT:  No, Your Honour.

THE COURT:  Mr. Cruz?

MR. CRUZ:  Dr. Farine, His Honour's question
    was about the phone call at 10:25, you have nothing in your reports about that
    issue, right?

A. Right.

MR. CRUZ:  Thank you,

Dr. John Smith

COURT: [Referring to exhibit 4] So my question
    is, when the document, the ALARM document says prepare for discovery[sic]  or
    delivery, and the SOGC document says, start making arrangements for delivery,
    notify all the services. From your review of the record, is there any reason
    why that couldnt have taken place immediately after the phone call?

A. It could have taken place then, yes, but
    you mean at about 10:10, or 10:12?

THE COURT:  But  right. Just....

A. Yes, you could have done that. Again, doing
    a caesarean section at that point wouldnt be unreasonable, but also since the
    baby looked very well, carrying on  and again, recalling that....

THE COURT:  I'm more, I'm more interested in
    just putting  getting the pediatric people, anesthetic people on standby...

A. Yeah, well, they're....

THE COURT:  ...and going to the hospital. Is
    that....

A. Well she's at the hospital, and those....

THE COURT:  No, I'm talking about the doctor.

A. Oh, for Dr. Tsandelis, you wonder if it's
    possible?

THE COURT:  Getting the process going in case
    a C-section is necessary.

A. Yes, that could be done.

THE COURT:  All right. Okay. And that would be
    within the, the ambit envisaged in both documents?

A. Yes, but again, this is a team document, so
    prepare for delivery doesn't mean that the obstetrician has to be there. The,
    the delivery can be prepared...

THE COURT:  Of course, you can phone....

A. ...for, for  like...

THE COURT:  At 10:10.

A. ...by the team, right.

THE COURT:  Exactly.

A. And they are....

THE COURT:  The doctors are out?

A. Well, yes, or
    for the doctor that's there.

[53]

These questions were not improper.

[54]

A trial judge is entitled to question witnesses
    for clarification by intervening in the testimony of witnesses. In
Chippewas
    of Mnjikaning First Nation v. Ontario
, 2010 ONCA 47, 265 O.A.C. 247, at
    paras. 231, 238 and 243, leave to appeal refused, [2010] S.C.C.A. No. 91, this
    court considered questioning by a trial judge:

An examination of whether a trial judge has
    unduly intervened in a trial must begin with the recognition that there are
    many proper reasons why a trial judge may intervene by making comments, giving
    directions or asking questions during the course of a trial. A trial judge has
    an inherent authority to control the court's process and, in exercising that
    authority, a trial judge will often be required to intervene in the
    proceedings.

On occasion, trial judges may be required to
    play a more active role in asking witnesses questions. However, when they do,
    it is important that they use care and not create an impression through the
    questioning process of having adopted a position on the facts, issues or
    credibility.

All of that said,
    appellate courts are reluctant to intervene on the basis that a trial judge
    "entered the arena" and improperly intervened in a trial. There is a
    strong presumption that judges have conducted themselves fairly and
    impartially.  In the end, an appellate court should only intervene if
    satisfied that the trial judge's interventions, considered in the context of
    the entire trial, created a reasonable apprehension that the trial judge was
    biased.

[55]

The trial judge here followed the protocol
    referred to by this court said in
R. v. Danial
, 2016 ONCA 822, at
    para. 5:

A trial judge is
    entitled to ask questions for clarification. The trial judge here followed the
    long standing protocol articulated in
R. v. Stuckey
, 2009 ONCA 151 at para 64. He waited until the conclusion of the
    witness testimony, asked questions for clarification on a narrow issue, and
    allowed further re-examination. That some of the questions towards the end of
    the series of questions may have been leading would not lead a reasonable
    observer being apprised of all the facts to conclude that the trial judge was
    not impartial.

[56]

Questions by a trial judge may be problematic when they either
    disclose bias or lead to trial unfairness. There is a presumption of
    impartiality on the part of a trial judge and the trial judges questions do
    not disclose bias.
Apprehension of bias was not alleged by
    the appellant.

[57]

Instead, the appellant alleges that the trial judge introduced a new
    theory of liability and this was unfair. The new theory alleged is that the
    appellant failed to prepare for delivery after the first phone call. I do not
    agree that this was a new theory. Nor do I agree that it was introduced by the
    trial judge.

[58]

The fact that the appellant did not immediately
    prepare for delivery at 10:02 a.m. was squarely at issue throughout the trial.
    Exhibit 4 was the SOGC Fetal Health Surveillance Guideline. At pp. S37-38 of
    the Guideline, fetal heart rate deceleration is discussed:

Abnormal Intrapartum
    Electronic Fetal Monitoring Tracing

In the presence of an abnormal fetal heart rate
    pattern, usually operative delivery should be undertaken promptly unless (1)
    there is clear indication of normal fetal oxygenation by means of scalp pH
    assessment or (2) spontaneous delivery is imminent. Scalp sampling should not
    be considered in the case of prolonged deceleration of greater than three
    minutes. Usual action in the presence of an abnormal tracing includes preparing
    for operative delivery (operative vaginal delivery or Caesarean section) and
    notifying pediatric and anaesthetic services.

[59]

This was discussed during the evidence of experts for the respondents
    and the appellant.  Dr. Barrett, the expert for the respondents, was referred to
    the fetal heart-rate tracing and the SOGC guidelines. He testified as follows:

And you can see in the abnormal tracing, we
    have a single prolonged deceleration, more than three minutes, but less than 10
    minutes places it into the abnormal category.

So usually if you
    have an abnormal pattern, you've got to deliver this baby, unless you can be
    sure that the baby is fine. And they mention how you can be sure. It's an extra
    test that you have to do. The scalp stimulation is an examination of the mom,
    and what we do is we stimulate the baby's scalp to get a clear reaction of the
    baby. You get an acceleration. That's one way of assessing that the baby is okay,
    you can do that, or you actually measure by doing the PH, then it might be
    okay. But you've got to be there to do this. You've got to attend the patient.
    And, you know, in this case, even, even if you could assume that the baby was fine,
    which you can't do until you're there, you've still got to be there to see what
    happens again when you restart the Oxytocin. Just to stay at home and to ask
    the nurses is, is in my - after this abnormal deceleration, is, in my opinion, against
    the guidelines and against the standard of care.

[60]

During the cross-examination of Dr. Bernstein, the appellants expert,
    he was asked the following questions and gave the following answers:

Q. And turning to the Exhibit 4, page S37, which
    is the chart, the table, we've agreed that when we're plugging in the facts of
    our case, it fits squarely in this part of the chart here. The five-minute
    prolonged deceleration is longer than three and less than ten minutes. It is a
    single prolonged deceleration, right?

A. Correct.

Q. And then if we go down to action required, we
    can agree that the standard sets out that the obstetrician is to review overall
    clinical situation, obtain scalp pH if appropriate, and
prepare for delivery
. Agreed?

A. That's what it says.

Q. That is the standard?

A. Yes.

Q. And you agree that usually operative delivery
    should be undertaken promptly, right:  Thats what it says?

A. Thats what it says.

Q. So the only, the only potential exception to
    this guideline is if delivery is imminent, and its not, right?

A. Yes.

Q. And, of course, vaginal delivery is not really
    an option in this case because of the presentation of the patient?
[2]

A. Correct.

Q. So that means
prepare promptly for C-section
. Do you
    agree thats what it says?

A. That's what it says.

Q. It also says not only is the
obstetrician to prepare promptly for caesarian
    section, but he's to notify pediatric and anaesthetic services
, right?

A. Correct. [Emphasis
    added.]

[61]

This was not a theory introduced by the trial judge. It was clearly in
    issue and there is nothing unfair or improper about the questions. (While not
    determinative of the issue, I note that experienced trial counsel raised no
    concern when the questions were asked.)

CONCLUSION

[62]

I would dismiss the appeal with costs to the
    respondents fixed in the agreed upon amount of $20,000 inclusive of
    disbursements and HST.

Released: June 3, 2021 M.L.B.

M.L. Benotto J.A.

I agree B.W. Miller J.A.

I agree Gary Trotter J.A.

[1]
Exhibit 4

[2]
It was agreed that vaginal delivery was not possible because
    cervical dilation had stopped progressing.