COURT OF APPEAL FOR ONTARIO

CITATION: Ranieri  (Re), 2015 ONCA 444

DATE: 20150618

DOCKET: C59183

Weiler, Tulloch and van Rensburg JJ.A.

IN THE MATTER OF: Mary Ranieri

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mary Ranieri, appellant, acting in person

Anita Szigeti,
Amicus Curiae

Amy B. Rose, for the respondent Attorney General of
    Ontario

Janice Blackburn, for the respondent Person in Charge of
    St. Josephs Healthcare Hamilton

Heard: June 1, 2015

On appeal against the disposition of the Ontario Review
    Board dated July 30, 2014.

van Rensburg J.A.:

[1]

The appellant appeals the initial disposition of the Ontario Review
    Board (the Board) after she was found not criminally responsible on account
    of mental disorder (NCR) on charges of uttering threats to cause death or
    bodily harm and assaulting a peace officer with intent to resist arrest.

[2]

The index offences occurred on March 12, 2014. The appellant, reacting to
    noise in an apartment above her own, made repeated threats to kill the
    superintendent of her building and two contractors. She repeated her threats to
    the investigating police officers, saying that one of the victims should be
    concerned if it gets any worse. Dont worry about what Im going to do. If I do
    something itll be with merit. The officers told the appellant she was under
    arrest. In response to their attempt to take physical control of her, the
    appellant pulled away and made a swatting motion, causing her glasses to fall
    off and break and leaving small scratches on her. While on the ground she
    kicked an officer in the leg.

[3]

In its disposition of July 30, 2014, the Board concluded that the
    appellant posed a significant threat to public safety for two reasons: she had
    committed and threatened acts of physical violence; and she continued to have active,
    untreated persecutory delusions. The Board accepted evidence from forensic
    psychiatrist Dr. Nagari, that the appellants symptoms affect her behaviour and
    require her to be detained in the Secure Forensic Unit. The Board noted that
    the appellants own testimony at the hearing revealed the scope and intensity
    of her delusions.

[4]

The Board determined that a conditional discharge was not appropriate
    because of the clear risks involved in discharging someone with the appellants
    symptoms. The appellant had recently been declared NCR and had not been
    treated.

[5]

The Board held that detention of the appellant on the Secure Forensic
    Unit at the time of her initial disposition was necessary and appropriate
    because of her active untreated symptoms. At the time of the hearing before the
    Board, the appellant had refused treatment because she did not believe she was
    ill, and was challenging a determination that she was not capable of consenting
    to treatment.

[6]

Recognizing, however, that the appellants condition might well improve with
    treatment, the Board made a hybrid order that the appellant be detained on the
    Secure Forensic Unit until the Hospital concludes that her condition has
    improved so as to warrant a transfer to the General Forensic Unit. The order  allowed
    for privileges up to and including access to hospital grounds under indirect
    supervision and access to the community in the company of staff or an approved
    person.

[7]

The appellant contests the Boards finding that she posed a
    significant risk to public safety, and argues that the Board failed to impose
    the least onerous and least restrictive disposition. The appellant asserts
    that, in arriving at the determination of significant risk and its disposition,
    the Board relied on inadmissible hearsay.
Amicus
joins in these
    arguments and makes two further submissions. She contends that the Board, instead
    of determining the disposition that was least onerous and least restrictive, erroneously
    applied a lower standard based on recent amendments to the
Criminal Code
,
    R.S.C., 1985, c. C-46, and that the Board failed to give meaningful
    consideration to a conditional discharge for the appellant.

[8]

I would not give effect to any of the grounds of appeal.

[9]

The Boards conclusion that the appellant posed a significant threat to
    public safety was reasonable and supported by the evidence. The Board emphasized
    the importance of the evidence that the appellant had committed and threatened
    acts of physical violence and that she suffers from active persecutory
    delusions that remain untreated.

[10]

There
    were two reports in evidence at the hearing: the Hospital report co-authored by
    Dr. Ferencz, the appellants attending psychiatrist, as well as the initial
    assessment report leading to the NCR finding, which was authored by Dr. Ferencz
    and clinical fellow Dr. Nagari.

[11]

In
    conducting the initial assessment, the psychiatrists interviewed the appellant
    on two occasions, as well as her mother, her sister and the victim of the index
    offences. The psychiatrists diagnosed the appellant with Delusional Disorder, Persecutory
    type, and observed that, as a result of her condition, she suffers from delusional
    thinking about various agencies and believes that for years she has been the
    victim of various injustices. They also observed that the appellants delusions
    had expanded while in the Hospital: she claimed that the superintendent she
    threatened in the index offences had influence over people in the Hospital as
    well as the judge who determined she was NCR.

[12]

The
    psychiatrists also noted that the appellants behaviour is irate and agitated,
    and that without treatment  which the appellant continues to refuse  there is
    an ongoing risk of violence. The index offences involved violence, and the
    appellant continues to justify her actions on the basis of perceived threats. There
    have also been subsequent threats of violence by the appellant, including,
    according to her sister, a threat to her mother that she would get her when
    released from the Hospital (this was noted as having been denied by the
    appellant). Dr. Nagari noted that the appellant had more than once told him
    that she would do anything to defend herself when threatened by others. The
    appellant repeated this assertion in her evidence at the hearing.

[13]

The appellant and
amicus
assert that the Board
    proceeded on inadmissible hearsay when Dr. Nagari, and then the Board, relied
    on police occurrence reports that contained unproven allegations of previous criminal
    conduct that did not result in convictions. Despite a number of interactions
    with police and the criminal justice system, the appellant has no prior
    convictions: some interactions did not result in charges, some charges were
    withdrawn, she was acquitted on one charge, and another is noted as pending.
    In his testimony, Dr. Nagari based his assessment that the appellant, while
    untreated, posed an unpredictable risk of harm, in part on what he understood
    was a previous assault that had been resolved by way of a peace bond.

[14]

Amicus
relies on this courts decision in
R. v.
    Runnalls
, 2009 ONCA 504, as authority that criminal charges that do not
    result in a conviction are inadmissible in a Board hearing, except to the
    extent that they form part of an actuarial instrument of risk assessment. In
    the present case no actuarial instrument of risk assessment was compiled or
    tendered in respect of the appellant.
Amicus
acknowledges that
Re
    Palmer
, 2013 ONCA 475, at paras. 32 and 33, recognizes that information
    from a criminal charge not resulting in a conviction may be considered, but asserts
    that such information is admissible only where it is undisputed, and that,
    because the appellant disputed the prior incidents resulting in criminal
    charges, information about these incidents was inadmissible and ought not to
    have been considered by the Board.

[15]

I
    agree with the Crown and the Hospital that
amicus
advocates an overly
    restrictive approach to the evidence a review board may consider that is not
    mandated by the case law. In
Re Palmer
, Rosenberg J.A. concluded that
    the Board was entitled to use facts surrounding a sexual assault allegation in
    determining the least onerous and least restrictive disposition for the
    accused, notwithstanding that the appellant had been acquitted of the criminal
    charge. While the information about the offence circumstances was in fact
    undisputed in that case, I do not read the decision as saying that
only
undisputed information about prior criminal conduct may be considered by a review
    board.

[16]

It
    is true that information from a police occurrence report is a form of hearsay
    evidence. However, as this court observed in
R. v
.
Vancurenko
,
    [2006] O.J. No. 2569, at para. 2, a review board enjoys a wide latitude to
    receive hearsay evidence because of its inquisitorial rather than adversarial
    process. In
Vancurenko
, the court held that the Board was entitled to
    receive and consider a police summary of prior criminal activity. It was for
    the Board to evaluate the hearsay evidence, while aware of the dangers inherent
    in evidence of this type. See also
R. v. Wodajio
, 2005 ABCA 45, 194
    C.C.C. (3d) 133, at para. 33, where the Alberta Court of Appeal observed that,
    having regard to the nature of the proceedings and the review boards broad
    mandate to consider all relevant, reliable evidence concerning an accuseds
    mental condition and a possible nexus between that condition and the threat (in
    that case, of sexual assault), the review board was entitled to consider
    evidence of an accuseds ongoing pattern of conduct, which included complaints
    of alleged sexual assaults during his detention.

[17]

While
    the fact that an accused person has been charged with an offence not resulting
    in a conviction, without more, would be of limited assistance to the Board in
    arriving at a disposition, information about prior behaviour that led to police
    involvement can be useful in assessing whether an accused poses a significant
    threat to the safety of the public and in determining the appropriate
    disposition. Such information is hearsay and must be evaluated having regard to
    such matters as its source and context, and any contradictory information,
    including any account or explanation provided by the accused.

[18]

In
    this case, the Hospital, and in turn the Board, did not simply rely on the fact
    that the appellant had been charged criminally on prior occasions. Nor is there
    any indication that the Board accepted without question all of the facts
    alleged in the occurrence reports. The relevant facts concerning the
    appellants pattern of conduct and behaviour were not really at issue, having
    been largely confirmed by the appellant, her mother and sister, and the
    complainant in the index offences, who had observed the appellants behaviour
    leading to some of the other incidents when the police attended. Importantly, the
    appellant did not deny her pattern of aggressive conduct. Rather, she offered a
    justification, rooted in her mental illness, that she was responding to threats
    and persecution.

[19]

With
    respect to disposition,
amicus
argues that the Board failed to
    determine the least onerous and least restrictive disposition, and erroneously
    interpreted the amended language in s. 672.54 of the
Criminal Code
as
    importing a lower threshold. While previously the section directed a review
    board to make a disposition that is the least onerous and least restrictive to
    the accused, the section now refers to a disposition that is necessary and
    appropriate in the circumstances.

[20]

This
    court noted in
Re Osawe
, 2015 ONCA 280, at para. 45, FN 3, that since
    the amendment, the Board has held that the necessary and appropriate
    disposition is also the least onerous and least restrictive disposition
    (citing
Re Ahmed-Hirse
, [2014] O.R.B.D. No. 1876, at para. 36). Indeed,
    in her factum, the Attorney General, referring to the legislative history of
    Bill C-14,
[1]
acknowledges that the amendments to s. 672.54, as well as related amendments,
    are clarifications as opposed to modifications of the law, and that the
    prevailing jurisprudence still applies.

[21]

In
    our view, the Board, in referring to the necessary and appropriate
    disposition, simply tracked the language of the amended provision, and there is
    no reason to believe that a lesser standard was applied.

[22]

The
    Boards hybrid disposition was reasonable and represented the least onerous and
    least restrictive option for the appellant at the time of her initial
    disposition. The Board ruled out a conditional discharge because of the clear
    risks involved in discharging an individual with [the appellants] symptoms
    into the community. There was ample evidence before the Board that a detention
    order was necessary in circumstances where the appellant lacked insight into
    her illness and was refusing treatment. The hybrid disposition  involving
    detention in the Secure Forensic Unit, where her privileges would be limited to,
    at most, indirectly supervised access to the hospital and grounds and
    accompanied access to the community, with the discretion of the Hospital to
    move her to a less secure unit  was supported by the evidence. Dr. Nagari
    testified that the appellant posed some elopement risk and that there was
    some concern that an incident might occur in a General Unit where there is less
    supervision.

[23]

Finally,
    there is no merit to the argument that the Board failed to give meaningful
    consideration to the option of a conditional discharge.
Amicus
argues
    that the Board relied on the fact that the appellant had only recently been
    found NCR and unreasonably failed to consider that a no-contact provision would
    have been sufficient to protect public safety. I disagree. At the time of the
    Boards initial disposition, the appellant denied her mental illness, was
    refusing treatment, suffered from active and expanding persecutory delusions,
    and continued to believe that her aggressive responses to perceived threats
    were justified. In these circumstances, there was no air of reality to the
    appropriateness of a conditional discharge.

[24]

For
    these reasons, I conclude that the Boards finding that the appellant poses a
    significant risk to public safety and its disposition by way of hybrid order
    were reasonable. I would accordingly dismiss the appeal.

Released: K.M.W.  June 18, 2015

K. van Rensburg
    J.A.

I agree K.M. Weiler
    J.A.

I agree M. Tulloch
    J.A.

[1]
Referring to the phrase necessary and appropriate in the circumstances, the
    Honourable Peter McKay, Minister of Justice and Attorney General of Canada,
    stated that the amendment is not intended to eliminate the requirement that a
    disposition be the least onerous and least restrictive, but rather to make
    the concept easier to understand:
Standing Senate Committee on Legal and
    Constitutional Affairs
, Proceedings, 41
st
Parl., 2
nd
Sess., No. 3 (27 February 2014), at pp. 32-33.


COURT OF APPEAL FOR ONTARIO

CITATION: Roberts v. Roberts, 2015 ONCA 450

DATE: 20150619

DOCKET: C59616

Feldman, Hourigan and Benotto JJ.A.

BETWEEN

Mable Frances Roberts

Applicant (Respondent)

and

Orin Lennox Roberts
,
    2052544 Ontario Inc., Romek Investments Inc., Marsdale Manor Limited, 2287599
    Ontario Inc.1771726 Ontario Limited, 1701875 Ontario Inc., 2229428 Ontario Inc.
    and PJR Group Inc.

Respondents (Appellant)

Richard R. Housen, for the appellant

Brian Sherman, for the respondent

Heard: June 4, 2015

On appeal from the order of Justice Mary E. Vallee of the
    Superior Court of Justice, dated October 16, 2014.

Benotto J.A.:

[1]

This appeal involves the importance of disclosure in a family law
    proceeding. The appellants pleadings were struck by the motion judge for
    failure to comply with orders requiring him to disclose financial information.
    He seeks to have the order overturned.

Facts

[2]

The parties were married in 2001 and separated in 2012.  Together they
    owned and operated five nursing homes.  They have no children.

[3]

The respondent commenced an application for divorce and equalization in
    January 2013.  She alleged in part that the appellant was using his companies
    to hide funds. The appellant in turn filed an Answer claiming, among other
    things, a deduction for property owned at the date of marriage, an equitable
    interest in property owned by the respondent and spousal support for himself.
    It is clear from the pleadings that the claims and cross-claims would require
    extensive documentary disclosure.

[4]

On April 22, 2013, a few weeks after the exchange of pleadings, the
    respondent brought a motion for disclosure.  Justice McGee ordered that the
    parties exchange requests for disclosure within 20 days and that the requested
    disclosure be produced within 60 days thereafter. The parties consented to this
    order.

[5]

The order was not complied with. The respondent brought another motion,
    this one heard by Justice Mullins.  She ordered, again on consent, that the
    timeline for disclosure be amended, that the parties exchange requests for
    disclosure by February 28, 2014 and that the requested disclosure be produced
    no later than March 31, 2014.

[6]

The respondent served the request for disclosure as required.  It was
    not complied with.  Several requested items were not produced. The respondent
    brought a motion to strike the appellants pleadings.  This motion came before
    Justice Howden on June 11, 2014.  Instead of striking the pleading, he granted
    the appellant a further extension to July 20, 2014. The order provided that
    failure by the appellant to answer all requests for disclosure by this deadline
    would entitle the respondent to renew her motion to strike the appellants
    pleading.

[7]

The appellant did not answer all the requests for disclosure.  The
    respondent renewed her motion to strike the pleadings.

[8]

On September 24, 2014, the respondent moved before Justice Vallee to
    strike out the appellants pleadings for persistent and ongoing failure to
    provide court ordered disclosure.  The order was granted.

Reasons of the Motion Judge

[9]

The motion judge reviewed the history, the court orders and the
    production provided by the appellant.   She noted:

On June 11, 2014, the [appellant] assured the court that he
    would produce the outstanding items by July 20, 2014.  He was granted this
    extension. A further two months have passed and the various items remain
    outstanding.  A further order granting another extension will likely have the
    same result and is not appropriate in the circumstances.

[10]

The
    respondent was granted leave to file a motion for an uncontested trial.

Analysis

[11]

The
    most basic obligation in family law is the duty to disclose financial
    information.   This requirement is immediate and ongoing.

[12]

Failure
    to abide by this fundamental principle impedes the progress of the action,
    causes delay and generally acts to the disadvantage of the opposite party.  It
    also impacts the administration of justice.  Unnecessary judicial time is spent
    and the final adjudication is stalled.

[13]

Financial
    disclosure is automatic.  It should not require court orders  let alone three
    - to obtain production.

[14]

Rule
    1(8) of the Family Rules provides:

If a person fails to obey an order
    in a case or a related case, the court may deal with the failure by making any
    order that it considers necessary for a just determination of the matter,
    including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer,
    notice of motion, motion to change, response to motion to change, financial
    statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that
    was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an
    order that the party is not entitled to any further order from the court unless
    the court orders otherwise;

(f) an order postponing the trial or any other
    step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13,
    s. 1.

[15]

The
    power to strike out the pleadings is to be used sparingly and only in
    exceptional cases. This is such a case.  The appellants conduct in ignoring
    court orders and failing to follow the basic principles of family law
    litigation put him in the exceptional category of cases where the judges
    discretion to strike his pleadings was reasonably exercised.

[16]

There
    are no children and thus no childrens issues here.

[17]

I
    would dismiss the appeal with costs fixed at $10,000.00 inclusive of
    disbursements and HST.

Released: K.F.  June 19, 2015

Mary Lou Benotto
    J.A.

I agree K. Feldman
    J.A.

I agree C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rojas v. Unilever Canada Inc., 2015 ONCA 428

DATE: 20150611

DOCKET: C59892

Juriansz, Rouleau and Lauwers
    JJ.A.

BETWEEN

Antonio Rojas

Plaintiff/Appellant

and

Unilever Canada Inc.

Proposed Defendant/Respondent

Christian J.
Guerette
and Jay
Rajagopalan
, for the appellant

Alexi Wood, for the respondent

Heard and released orally: June 5, 2015

On appeal from the order of Justice F.L.
    Myers of the Superior Court of Justice, dated December 15, 2014.

ENDORSEMENT

[1]

The narrow issue before us is whether the
    respondent should be added as a defendant to the action.

[2]

We find it unnecessary to resolve the parties disputes
    regarding which of the two collective agreements applies, whether which
    agreement applies is an issue for the arbitrator, and the responsibility for
    the inadequacy of the record. In our view, the motion judge reached the proper
    conclusion that the respondent should not be added as a party.

[3]

If the respondent has any liability for the
    unpaid benefits, it is because its obligation to pay those benefits stems from a
    collective agreement, and would be
arbitrable
.
    Whether liable for the benefits or not, the respondent is not a proper party to
    the action.

[4]

The appeal is dismissed. Costs will be fixed in
    the amount of $7,426.94 inclusive of disbursements and taxes.

R.G. Juriansz J.A.

Paul Rouleau J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Shantry v. Warbeck, 2015 ONCA 395

DATE: 20150604

DOCKET: C58247

Cronk, Pepall and Benotto JJ.A.

BETWEEN

Melissa Anne Shantry and Taylor Anne Miller, a
    minor by her Litigation Guardian, Melissa Anne Shantry

Plaintiffs (Appellants)

and

Paul Warbeck

Defendant (Respondent)

AND BETWEEN

David Blake, Donna Miller, Harold Miller, Denise
    Post-Blake, Burkley Blake and David Blake Jr.

Plaintiffs (Appellants)

and

Paul Warbeck

Defendant (Respondent)

Paul Pape and Joanna Nairn, for the appellants

Michael Royce and Dena Varah, for the respondent

Heard: February 18, 2015

On appeal from the judgment of
    Justice Terrence A. Platana of the Superior Court of Justice, dated December
    20, 2013, with reasons reported at 2013 ONSC 7805.

Benotto J.A.:

[1]

A 22-year-old man arrived at a hospital emergency room in the early
    evening, presenting with severe back pain. Intravenous morphine throughout the
    night had little effect. In the morning, he came under the care of the
    respondent, who continued the morphine. There was still no relief. At around 5
    p.m. the respondent switched the medication to Dilaudid, a stronger opioid. By
    3 a.m. the following morning, the young man finally said he had no pain. At
    4:30 a.m., hospital staff found him not breathing. He was pronounced dead at
    5:09 a.m., less than 35 hours after he arrived at the hospital. The coroners
    investigation concluded that the cause of death was mixed-drug overdose.

[2]

The mans family brought an action in negligence alleging that the
    respondent ordered an excessive dose of Dilaudid and this caused the mans death.

[3]

The trial judge determined that the dose was appropriate in the
    circumstances and that the respondents conduct did not fall below the standard
    of care. The trial judge also rejected the coroners finding as to cause of
    death.

[4]

The family members appeal. They submit that the trial judges approach
    to liability was flawed because he addressed the standard of care before
    causation, and then wrongly rejected the coroners conclusion as to the cause
    of death. This error, they allege, led him into further error with respect to
    the standard of care.

[5]

I have concluded that the trial judge did not err in his approach to
    liability.  Nor did he err in his findings with respect to the standard of care
    and causation.  Accordingly, I would dismiss the appeal.

FACTS

[6]

On Wednesday, July 11, 2007, Shane Miller  a 22-year-old man living
    with his common-law partner Melissa Anne Shantry and their young daughter
    slipped on a pinecone in a parking lot and fell onto his back. He lay on the
    ground for a few minutes, but then got up and went shopping with his family.
    The following Saturday, July 14, Mr. Miller did not wake up until around 5 p.m.
    Ms. Shantry testified that, he seemed out of it. He, he was mumbling about
    some dreams that he had had. Mr. Miller was lying on the couch but would jump
    up from the couch with little convulsions and jerking movements that were
    not normal. He was complaining about his back hurting and going on about ...
    his dreams. Ms. Shantry summoned Mr. Millers father to take him to the
    hospital. According to his father, Mr. Miller seemed to be in a lot of pain.

[7]

Mr. Miller arrived at the Thunder Bay Regional Health Sciences Centre at
    6:19 p.m. on Saturday, July 14, complaining of intense pain in his upper back.
    He described it as both aching and sharp between his shoulder blades and
    sometimes radiating to his lower back. He had a fever and a rapid pulse.

[8]

Mr. Miller was examined in the emergency department and administered a
    single dose of 5 milligrams (mg) of morphine intravenously at 6:50 p.m. It
    did not alleviate his pain. Mr. Miller received three more doses of morphine
    between 7:40 p.m. and 9 p.m. The total for the evening was 19-20 mg. His pain
    continued unabated.

[9]

The emergency department personnel could not determine the cause of Mr.
    Millers pain. Shortly after midnight, he was admitted to the medical ward for
    investigation. The pain and fever did not subside. He received additional doses
    of morphine throughout the night and was also started on an antibiotic. By
    morning, he was still in pain. At 8:30 a.m. on the morning of Sunday, July 15, a
    nurse assessed him and found him to be experiencing throbbing and radiating back
    pain, which he rated as 10 on a scale of 10, as well as a fever and headache.
    He was itching, vomiting, moaning, crying and restless. He was screaming in
    pain.

[10]

Through
    the morning and afternoon of Sunday, July 15, Mr. Miller continued to receive
    doses of morphine. At trial, the attending day nurse was asked to describe Mr.
    Millers pain levels:

A. He was, he was in horrible, terrible pain.

Q. Do you have a specific recollection of this patient?

A. Yeah. Like I work on [an] oncology patient clinic and I do
    see people with lots of pain and this young gentleman, he sticks with me
    because of his pain level and the young age.

Q. Okay.

A. He was in horrible pain.

[11]

Mr.
    Millers family members also testified that he was in pain that Sunday morning
    and afternoon. At 5:09 p.m., Mr. Miller said he was still in pain. He described
    throbbing in his back and rated it as an 8 on a scale of 10. The day nurse did
    not consider this to be an improvement in pain level; he was still moaning,
    crying and suffering.

Involvement of the Respondent

[12]

The
    respondent is a physician who was working as a hospitalist at the Health
    Sciences Centre. In his trial testimony, he described a hospitalists role as providing
    general medical care, guiding investigations and requesting consultations for
    patients without a family physician able to care for them in hospital.

[13]

The
    respondent first saw Mr. Miller between 9:00 a.m. and 9:30 a.m. on the morning
    of Sunday, July 15. He reviewed notes from Mr. Millers attending physicians
    and nurses, issued orders for laboratory tests and noted that Mr. Miller had a pustular
    rash, a significant fever and severe back pain. He believed that Mr. Miller had
    a serious viral infection, possibly shingles, in the discs of his backbone.

[14]

At
    around 5 p.m. that day, the day nurse told the respondent that Mr. Miller had
    received 20 mg of morphine over a four-hour period. Mr. Miller was
    clear-headed, but still in pain. The respondent changed his medication to 5-10
    mg of Dilaudid (hydromorphone) every four hours. Dilaudid is an opioid that,
    according to the appellants expert witness Dr. Alan Drummond, is 3-8 times
    more potent than morphine.

[15]

At
    5:30 p.m. Mr. Miller received his first 5 mg dose of Dilaudid. The day nurse
    recorded in her Shift Summary that, after the new drug was administered, Mr.
    Miller was in less pain. The respondent left the hospital at 9 p.m.

Mr. Millers Death

[16]

At
    9:30 p.m., Mr. Miller received another 5 mg dose of Dilaudid. The following
    morning, at 2:00 a.m., the attending night nurse found him in his room awake,
    standing and urinating on the side of his bed and the floor. He was very
    angry that he had not been administered more Dilaudid while he was sleeping so
    that he would not have to wake up in pain. He was yelling and screaming that he
    was in a lot of pain. The night nurse, along with two other nurses, changed the
    sheets and assisted Mr. Miller back into bed. The night nurse administered
    another 5 mg dose of Dilaudid at 2:30 a.m. Within 15 minutes, Mr. Miller was
    calm.

[17]

At
    around 3:00 a.m., Mr. Miller rang for the night nurse. He apologized for
    urinating on the floor and asked her to turn off the television and the lights.
    For the first time since his arrival at the hospital, he said he had no pain.

[18]

Mr.
    Miller was not seen again by the night nurse until 4:30 a.m., when he was found
    not breathing. A Code Blue was called, but Mr. Miller could not be
    resuscitated. He was pronounced dead at 5:09 am.

Summary of the Opioids

[19]

Mr.
    Miller received the following doses of morphine and Dilaudid:

·

July

14
:

·

6:50 p.m. : 5 mg morphine

·

7:40 p.m. : 2 or 3 mg morphine

·

7:50 p.m. : 2 mg morphine

·

9:00 p.m. : 10 mg morphine

·

July

15
:

·

1:00 a.m. : 10 mg morphine

·

3:00 a.m. : 5 mg morphine

·

8:20 a.m. : 5 mg morphine

·

11:30 a.m. : 5 mg morphine

·

12:25 p.m. : 5 mg morphine

·

3:40 p.m. : 10 mg morphine

·

5:30 p.m. : 5 mg Dilaudid

·

9:30 p.m. : 5 mg Dilaudid

·

July

16
:

·

2:30 a.m. : 5 mg Dilaudid

The Coroners Report

[20]

The
    tragic circumstances led to an extensive coroners investigation. In the
    Medical Certificate of Death, the investigating coroner cited mixed drug
    overdose as the immediate cause of death, more particularly unexpected
    toxicity from potent opiates/other medications. (The words opiate and
    opioid are synonymous.)

[21]

A
    forensic pathologist provided a second opinion as to the cause of death. She
    concluded that the source of Mr. Millers pain and fever was likely a viral
    infection, but that the cause of death was acute mixed hydromorphone and
    morphine intoxication. These conclusions were again confirmed by another
    pathologist. The continuing investigation was overseen by the Regional
    Supervising Coroner. In all, at least eight diagnostic or analytical reports
    were written regarding the cause of Mr. Millers death.

THE TRIAL

[22]

At
    trial, the appellants argued that the respondent failed to meet the standard of
    care in two respects: by prescribing an excessive dosage of Dilaudid and by
    failing to attend personally to Mr. Miller more than once on Sunday, July 15,
    2007, relying instead on the observations of nurses. Only the first issue, the
    dosage of Dilaudid, is raised in this appeal.

[23]

The
    correct dosage of an opioid is informed by the patients status as either opioid
    naïve or opioid tolerant. Patients who are opioid tolerant can tolerate
    higher dosages because their bodies have become used to the drugs. Patients who
    are opioid naïve generally cannot tolerate higher dosages. The experts agreed
    that opioid tolerance generally develops after at least a week of regular
    doses.

[24]

Whether
    Mr. Miller was opioid tolerant or opioid naïve was the subject of extensive
    expert evidence. The appellants led expert evidence that he was opioid naïve
    and the dosage of Dilaudid was consequently too high. The respondent led expert
    evidence that, given the ineffectiveness of morphine on Mr. Millers pain, the
    dosage of Dilaudid that the respondent ordered was appropriate. The respondents
    experts testified that although Mr. Miller did not meet the strict definition
    of opioid tolerant  in that it was unlikely that he could have become tolerant
    in the span of a day or so  he nevertheless exhibited resistance to morphine
    such that the Dilaudid dosage was justified.

[25]

The
    experts also disagreed as to the cause of death. While the appellants experts
    agreed with the coroners conclusion, the respondents did not. The latter
    testified that, had Mr. Millers death been caused by an overdose of opioids,
    he would have exhibited symptoms of such an overdose before he was last
    observed alive by the night nurse at 3:00 a.m. on the night of his death.

[26]

The
    trial judge accepted the evidence of the respondents experts on both the
    dosage issue and the cause of death. With respect to the dosage of Dilaudid,
    the trial judge wrote:

All medical witnesses agreed that the proper dose is one which
    relieves pain. That being so, recognizing that the initial, and subsequent, 5
    mg dose of Dilaudid did not relieve Mr. Millers pain, and there were no
    adverse side effects observed, it is difficult for me to find that it was other
    than a proper dose.

[27]

With
    respect to causation, the trial judge rejected both the evidence of the
    appellants experts and the conclusions stated in the coroners report that a
    mixed drug overdose caused Mr. Millers death. Rather, he stated:

I consider that there is no reason for me not to accept that if
    toxicity caused the event, then it should certainly have occurred before 03:00,
    based on the clinical history of Mr. Miller from 17:30 to 03:00. I therefore
    accept [the respondents experts] evidence that it is highly improbable that
    the spectrum [of symptoms of opioid toxicity] could have occurred between 03:00
    and 4:30.

THE ISSUES ON APPEAL

[28]

The
    appellants submit that the trial judges errors began when he addressed the
    standard of care before causation. They submit that he erred in law and fact
    when he rejected the appellants evidence as to the cause of death. This error
    as to causation, they allege, led him to err in determining the standard of
    care with respect to the appropriate dosage of Dilaudid.

ANALYSIS

[29]

I
    begin by addressing the appellants submission that the trial judge erred by
    deciding the standard of care before causation. It is submitted that a finding
    that the cause of death was mixed drug toxicity  as determined by the coroner -
    would have impacted the trial judges finding on standard of care. The trial
    judge, they argue, treated causation as a throw away and then made mistakes that
    infected his determination of negligence.

[30]

The
    appellants rely on
Meringolo v. Oshawa General Hospital
(1991), 46
    O.A.C. 260 (C.A.), leave to appeal refused, 50 O.A.C. 159 (S.C.C.), to support
    the position that causation must be determined before duty of care. In that decision,
    Osborne J.A. wrote, at para. 56:

The [cause of the brain damage] is, in my view, preliminary
    to the traditional negligence causation question, that is, whether it has been
    established that a tortfeasors conduct (breach of duty) caused a plaintiffs
    injury.
In this case, before the breach of duty issue can be appropriately
    addressed, what happened in the operating room ... must be determined in order
    to provide an answer to the question, what caused the appellants brain damage,
    or, to put it more broadly, how did the appellant sustain brain damage. It is
    only after that issue is examined that the issue of the respondents alleged
    negligence should be considered. [Emphasis added.]

[31]

In
    a later case,
Grass v. Women's College Hospital
(2001), 144 O.A.C. 298
    (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 372, this court applied
Meringolo
,
    with Catzman J.A. writing, at para. 12:

[T]he trial judge in the present case disposed of the action by
    finding that the appellants had failed to establish negligence on the part of
    Dr. Weisberg
and thereby finding it unnecessary to assess the conflicting
    theories relating to causation.
In doing so, he fell into the error
    articulated in
Meringolo
. The resolution of the question of causation
    might have led to different findings of fact with respect to what transpired in
    the labour room and to a different conclusion with respect to negligence. As in
Meringolo
, the appellants were entitled to the benefit of the trial
    judge's findings with respect to causation or to his determination, on the
    basis of a consideration of all of the evidence that such findings could not be
    made, before he came to address the issue of negligence. [Emphasis added.]

[32]

In
    both
Meringolo
and
Grass
,

the trial judge had not
    resolved the factual disputes surrounding causation, and this court held that
    findings of fact about causation, had they been made, could have influenced the
    determination of whether the standard of care had been breached.

[33]

The
    concerns expressed in
Meringolo
and
Grass
are fact-specific
    and, in any event, are not at issue in this case. In each of those cases, the
    plaintiffs theory of causation was a crucial component to a determination of
    the standard of care.  In each of those cases, the trial judge, having first
    considered the standard of care, failed to address or make findings on
    causation.  This is not such a case. The trial judge here considered causation
    and rejected the appellants theory in relation to it.

[34]

That
    the trial judge addressed causation after the standard of care is not an error.
    The Supreme Court has established that there are requirements that must be met
    to establish negligence. The requirements are sequential and separate. The
    plaintiff must demonstrate that:

1.

the defendant
    owed a duty of care;

2.

the defendants
    behaviour breached the standard of care;

3.

the plaintiff
    sustained damage; and

4.

the damage was
    caused, in fact and in law, by the defendants breach.

(See:
Cleveland
    v. Whelan
, 2011 ONCA 244, 277 O.A.C. 178, at paras. 32-33, citing
Mustapha
    v. Culligan of Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3).

[35]

The
    trial judges analysis targeted each of these requirements in sequence. I
    therefore do not agree that he erred in his approach to the standard of care
    and causation issues. He considered the standard of care first, then causation.
    I will do the same.

Standard of Care

[36]

Four
    physicians testified as expert witnesses. The experts agreed that the switch
    from morphine to Dilaudid at 5 p.m. on July 15 was appropriate. They agreed
    that Dilaudid is a more powerful opioid than morphine and that the conversion
    factor between the two is generally accepted to be 1:5. They disagreed about
    the appropriateness of the dosage of Dilaudid prescribed to Mr. Miller. The
    appellants witnesses said that Mr. Miller was opioid naïve and therefore
    should have been started at a lower dose. The respondents witnesses said that
    the dose was appropriate because Mr. Miller had not responded to increasing
    doses of morphine and this had to be taken into account in determining the
    starting dose of Dilaudid.

[37]

Dr.
    Brian Goldman and Dr. Alan Drummond testified for the appellants. Dr. David Juurlink
    and Dr. Gerald Rowland testified for the respondent.

Appellants

Expert

Evidence

[38]

Dr.
    Goldman was qualified as an expert to give an opinion with respect to the
    dosages of morphine and Dilaudid to be used. He has practised in the area of
    chronic pain management for about 10 years and has prescribed morphine and
    Dilaudid intravenously many thousands of times.

[39]

Dr.
    Goldman explained the practice of titration, by which physicians slowly
    increase opioid dosage while monitoring the patient in order to find the
    optimum dose for that particular patient. He testified that, in switching a
    patient from morphine to Dilaudid, the appropriate clinical practice is to
    start at a low dose and titrate upwards. Dr. Goldman opined that it is not safe
    to assume that, because a patient has not had an adverse reaction to morphine,
    they will not have one to Dilaudid  they are different opioids and work in
    different ways on the human body. In establishing the starting dose of
    Dilaudid, the physician should consider only the last dose of morphine, not the
    amount administered over the last four hours. In Dr. Goldmans opinion, it was
    not possible for Mr. Miller to have become tolerant to the analgesic effects of
    opioids during the less than 35 hours that he was hospitalized.

[40]

Dr.
    Goldman opined that the 5 mg dose of Dilaudid given to Mr. Miller was an
    egregiously excessive dose of  Dilaudid compared to usual practice. As Mr.
    Millers last dose of morphine was 10 mg, the respondent should have started
    him on 1-2 mg of Dilaudid every three hours and titrated upward from there. Dr.
    Goldmans opinion was that the respondent failed to meet the standard of care
    by prescribing the 5-10 mg dose of Dilaudid every 4 hours. According to Dr.
    Goldman, the respondent did this because he mischaracterized Mr. Miller as
    being opioid tolerant when he was in fact opioid naïve.

[41]

Dr.
    Drummond was qualified as an expert in general family medicine and the dosing
    of Dilaudid. Dr. Drummond, a family physician, has a certification in emergency
    medicine, experience as an anaesthetist and 20 years service as a coroner. He
    has prescribed intravenous morphine or Dilaudid on thousands of occasions.

[42]

Dr.
    Drummonds evidence was that, in switching a patient from morphine to Dilaudid,
    the physician should start with a lower dose of Dilaudid and titrate up (or
    down) to achieve pain relief. He shared Dr. Goldmans view that it was not
    appropriate, in determining the starting dose of Dilaudid, to consider the
    amount of morphine given in the previous four hours and that a patients lack
    of response to morphine cannot justify a higher starting dose of Diluadid
    they are two distinctly different medications.

[43]

Dr.
    Drummonds opinion was that Mr. Miller was opioid naïve and the dosage of 5-10
    mg of Dilaudid was shocking and not in accordance with the appropriate
    standard of care, which would have been to give Mr. Miller a 1-2 mg starting
    dose of Dilaudid.

Respondents

Expert

Evidence

[44]

Dr.
    Juurlink is the Director of Clinical Pharmacology and Toxicology at the
    University of Torontos Faculty of Medicine. He is board certified in both
    medical toxicology and internal medicine. He was qualified as an expert in the
    administration and the effect of opioids, in particular morphine and Dilaudid.

[45]

Dr.
    Juurlink disagreed with the appellants experts on the issue of opioid
    tolerance. Although he agreed that it is unlikely a person would become opioid
    tolerant in the span of a day or two, he stated that a person who has received
    multiple doses of morphine cannot be considered opioid naïve in the true sense.
    He said:

[W]here someone has received a drug for a day or so, you
    couldnt rightly call them naïve because you have some sense of how they have
    responded to the drug in positive or negative ways.

[46]

Dr.
    Juurlink explained that the term opioid naïve can be used in different ways.
    On the one hand, a patient who has not previously received the drug and
    therefore might experience a more dramatic effect would be considered naïve. On
    the other hand, the description naïve is not entirely accurate when a patient
    has been receiving opioids, albeit for a shorter time than that required to
    become opioid tolerant. With respect to Mr. Miller, Dr. Juurlink stated that it
    was not correct to say he was opioid naïve because he had received morphine and
    there had been no overt signs of toxicity, and minimal benefit.

[47]

Dr.
    Juurlinks testified that the morphine given to a patient before the switch to
    Dilaudid must inform the proper starting dosage of Dilaudid. He opined that, in
    this case, 5 mg of Dilaudid was a perfectly appropriate starting dose because
    Mr. Miller had received about 20 mg of morphine in the five to six hours prior
    to the switch, which had not afforded him much pain relief. He therefore
    disagreed with the appellants experts that the starting dose of Dilaudid
    should be calculated based on the last individual dose of morphine. He did
    agree that administering 10 mg would have been excessive. However, it would
    have been inappropriate and would have caused undue suffering to have
    switched Mr. Miller to an inadequate dose of 1-2 mg Dilaudid. In his view,
    the change from morphine to Dilaudid was itself an act of titration.

[48]

Dr.
    Rowland was qualified as an expert with respect to the standard of care of a
    general practitioner. He has been a general practitioner in Tillsonburg,
    Ontario since 1979, and has been on the active staff of the Tillsonburg
    District Memorial Hospital since 1980. He has treated patients with morphine
    and Dilaudid on several occasions, most recently three weeks before he
    testified. He has held a number of roles with the College of Physicians and
    Surgeons of Ontario pertaining to physician oversight and discipline, including
    having served as President of the College.

[49]

Dr.
    Rowland testified that the respondent met the standard of care. He opined that
    it would not be appropriate to determine the correct dosage of Dilaudid without
    regard to the quantities of morphine that had been administered without effect.
    That would be akin to treating the patient as though he had just come in off
    the street. The physician should give enough of the medication to relieve the patients
    pain.

[50]

Dr.
    Rowlands opinion was that the respondents order of 5 mg of Dilaudid as the
    starting dose met the standard of care and was in keeping with the principles
    of pain management with opioids. He called it a wise thing to do.

[51]

Dr.
    Rowland agreed with Dr. Juurlink that the 20 mg of morphine administered in the
    four hours prior to the first dose of Dilaudid was the appropriate amount upon
    which to base the conversion to Dilaudid. He stated:

[O]ver the previous four hours he had 20 milligrams of
    morphine. By all of the clinical experience that I have had, that is the
    appropriate figure to use when calculating a conversion, not the 10 milligrams
    given an hour and a half before or whatever. So  the equivalent dose would be
    4 milligrams, it wasnt effective, it wasnt showing adverse effect[s], it was
    reasonable to increase the dosage [to 5 mg] at that point in time.

[52]

Although
    Dr. Rowland described Mr. Miller as opioid tolerant in his report, he
    testified that he was using this phrase in a clinical, rather than
    pharmacological sense:

What I was attempting to do  was to indicate what was
    happening clinically rather than strictly physiologically or pharmacologically
    to Mr. Miller.... [W]hat was happening was that he was resistant to the pain
    relieving effects of the morphine that he was originally administered and that
    was what I was intending to imply. I was not intending to imply that he had
    developed opioid-tolerance for whatever reason previous to his arrival at the
    hospital.

[53]

Dr.
    Rowland said that Mr. Miller demonstrated resistance to morphine. He was not
    receiving effective pain relief and he was not showing any of the adverse side
    effects of opioid over-dosage, such as sedation or the loss of sensorium.

Trial

Judges

Conclusions

[54]

The
    trial judge accepted the respondents expert evidence. He concluded that the
    respondent had met the standard of care and that the dosage of Dilaudid was
    appropriate.

[55]

The
    appellants submit that the trial judge found that Mr. Miller was opioid
    tolerant and that this was an error. They point to this statement in the
    reasons: I accept Dr. Juurlinks evidence that an inference can be drawn that Mr.
    Miller was opioid tolerant.

[56]

When
    the trial judges reasons are read in their entirety, it is clear that he was
    using the term not in the strict definition but in accordance with the
    qualifications explained by Drs. Juurlink and Rowland. He recognized that a
    person cannot become opioid tolerant in the amount of time that Mr. Miller had received
    morphine. However, he also accepted the respondents expert evidence that the prior
    doses of morphine should inform the starting dose of Dilaudid. In doing so, the
    trial judge was not, as the appellant submits, making a finding that Mr. Miller
    was opioid tolerant. Rather, he was speaking in a different sense, as is
    evident when the sentence the appellants seize upon is set out in its full
    context. The trial judge wrote:

I find it reasonable to find that Mr. Miller was not
    necessarily, in the
strict definition
, opioid naïve at the time Dilaudid
    was administered, and therefore, as the evidence of Drs. Goldman and Drummond
    is based on him being naïve, their evidence should be given less weight than
    that of Drs. Rowland and Juurlink. I accept Dr. Juurlinks evidence that an
    inference can be drawn that Mr. Miller was opioid tolerant. [Emphasis added.]

[57]

To
    further demonstrate this point, the trial judge acknowledged later in his
    reasons that Mr. Miller was not technically opioid tolerant:

Regardless of the
strict definition
, I can only find
    that with no reaction of pain relief from the morphine, it is clear that it was
    having no effect on Mr. Miller. From a non-medical perspective, that suggests
    to me that his body was, in fact, tolerant to the morphine and he could not be
    considered opioid naïve when the Dilaudid was administered. [Emphasis added.]

[58]

The
    appellants argue that the above statements by the trial judge show that he
    erroneously conflated opioid tolerance with analgesic effect. Yet, it clearly was
    open to the trial judge to accept the evidence of Dr. Juurlink and Dr. Rowland
    that the dosages of morphine and their lack of effect on Mr. Miller properly
    informed the starting dosage of Dilaudid. The fact that Mr. Miller had been
    receiving morphine and that it had not been effective in relieving his pain was
    information that the respondent properly could use in establishing the starting
    dose of Dilaudid. The appellants and respondents witnesses specifically spoke
    to the need to treat the individual. As the trial judge wrote:

What is apparent from the evidence, and as acknowledged by all
    of the medical witnesses, is that treatment involving the use of opiates is
    highly individualized. It is a matter of clinical judgment and physicians can
    differ in clinical judgment.

[59]

All
    the medical witnesses agreed that the proper opioid dose is one which relieves
    pain.

[60]

The
    appellants submit that [t]he threshold standard of care issue in this case was
    whether [Mr. Miller] was opiate naïve or whether he was opiate tolerant. This,
    they submit, determines the appropriate dosage of Dilaudid.

[61]

I
    disagree. By framing the issue in this way, the appellants ignore the evidence,
    accepted by the trial judge that Mr. Miller was treated as opioid naïve on his
    admission and that, by 5 p.m. on the following day, there was additional
    information upon which to base the dosage. That is, whether one characterizes
    Mr. Millers clinical response to morphine as tolerant or resistant, it is
    undisputed that morphine was having little to no analgesic effect. The trial
    judge accepted the evidence of two highly qualified expert witnesses that,
    based on Mr. Millers lack of response to morphine, including no symptoms of
    respiratory depression, the respondents prescription for a starting dose of 5
    mg of Dilaudid met the standard of care. This finding was open to the trial
    judge and, in my view, does not evince any palpable and overriding error.

[62]

In
    summary, the trial judge clearly understood the divergence in the medical
    evidence and accepted the opinions of Dr. Juurlink and Dr. Rowland in concluding
    that the respondents Dilaudid prescription did not fall outside the reasonable
    range of judgment calls that would be made by a prudent and diligent
    hospitalist in similar circumstances. I see no basis on which to interfere with
    this determination.

Causation

[63]

The
    appellants submit that the trial judge erred in law and made factual errors
    when he rejected the coroners determination as to Mr. Millers cause of death.
    The appellants theory of causation was that a mixed overdose of morphine and
    Dilaudid led to respiratory depression and death.

[64]

The
    appellants submit that, because they put forth extensive evidence to support their
    theory and the respondent did not lead sufficient evidence to support an
    alternative, the trial judge was required to accept the appellants theory of
    causation. By rejecting their theory, the appellants argue, the trial judge
    erred in law. They rely on
Ediger v. Johnston
, 2013 SCC 18, [2013] 2
    S.C.R. 98, to support the following submission in their factum:

If the experts for [the] plaintiff and the defendant have
    conflicting theories [of causation], the court must consider if the defendant
    has introduced sufficient evidence to displace the plaintiffs theory of
    causation  not just another theory but evidence in support of that theory.

[65]

I
    do not read
Ediger
to support the appellants submission. The Supreme
    Court of Canadas decision in that case makes it clear that the drawing of
    inferences against a defendant is permissive, not mandatory. As Rothstein and
    Moldaver JJ. wrote for the court, at para. 36:

The trier of fact
may
, upon weighing the evidence, draw
    an inference against a defendant who does not introduce sufficient evidence
    contrary to that which supports the plaintiffs theory of causation. [Emphasis
    added.]

[66]

The
    burden nonetheless remains with the plaintiff, as stated at para. 39:

Faced with  conflicting expert testimony on the feasibility of
    [the plaintiffs theory of causation] and evidence of other potential causes,
    it was incumbent upon [the trial judge] to weigh the evidence before her and
    determine
whether [the plaintiff] had proven causation on a balance of the
    probabilities
. [Emphasis added.]

[67]

Dr.
    Juurlink testified about the cause of death and disagreed with the coroners
    conclusion that a mixed opioid overdose was the cause. He described the
    spectrum of predictable features that a person exhibits before dying of an
    opioid overdose:

[T]he person would initially become sleepy. They would then
    and might be rousable, but they would then effectively be asleep and then
    unrousable. In conjunction with that their breathing would slow. It might
    still be a deep breath, but it would tend to slow, 10, 8, 6 breaths per minute.
    And these things happen invariably before someone dies of opioid toxicity. And
    so the primary reason why I disagree  with the coroner and the others  is
    that it seems very clear to me from reviewing the record that [Mr. Miller] did
    not exhibit those features. I cannot envision  any way in which someone dies
    of an opioid overdose without exhibiting those features.

[68]

Dr.
    Juurlink later stated:

Even 30 minutes after he is given his final dose of opioid, [Mr.
    Miller] is communicative. He is apologetic. He seems rational. People who are
    about to die of opioids cannot be roused. They cannot be awakened. And so the
    picture [of Mr. Miller] is vastly different from the picture of a patient who
    is about to succumb to the accumulative effects of opioids administered in the
    hours beforehand.

[69]

Dr.
    Juurlink rejected the suggestion that Mr. Miller could have progressed through
    the full spectrum of symptoms of an opioid overdose in the time in which he was
    unobserved, between 3:00 a.m. and 4:30 a.m., on the day of his death. In his
    opinion, had Mr. Miller died of an opioid overdose from the Dilaudid
    administration, some of the toxicity symptoms would have manifested themselves
    earlier that night. He said:

[N]ot only would he have been expected to die fairly soon, at
    least some of the signs of toxicity would manifest before that and as far as I
    can tell they didnt.

[70]

Dr.
    Juurlink also opined that the post-mortem levels of Dilaudid in Mr. Millers
    blood were too low to suggest an overdose.

[71]

Dr.
    Rowland testified that, in his experience, adverse effects from intravenous
    opioids are usually seen within 20 minutes after administration. His view was
    that monitoring a patient 15-30 minutes after administration of Dilaudid for
    signs of over-sedation, such as loss of alertness or breathing difficulties,
    was a completely reasonable approach as adverse side effects would be
    detectable in this time period.

[72]

This
    evidence provided an adequate basis for the trial judge to conclude that the
    appellants had failed to prove causation on a balance of the probabilities. Although
    this was contrary to the conclusion of the coroner, I note that the coroners
    conclusions were also based on a balance of probabilities and not a higher
    standard of proof. The trial judge clearly preferred the evidence of the
    respondents experts on causation and rejected the appellants theory on that
    basis. In my view, it was open to him to do so.

[73]

In
    this case, most of the facts underlying the respondents attack on the
    appellants theory of causation were not in dispute: (i) Mr. Miller presented
    with excruciating pain and fever before a single opioid had been administered;
    (ii) the pain continued unabated until shortly before his death; and (iii) Mr.
    Miller was never observed with symptoms of respiratory depression after two 5
    mg doses of Dilaudid, nor in the 30 minutes after the third, tragically final,
    dose. In my view, it was open to the trial judge on these undisputed facts, given
    the respondents expert evidence, to reject the appellants theory of
    causation.

[74]

The
    appellants argue that the trial judge made two factual errors that undermine
    his findings on causation. First, the trial judge wrote that Mr. Miller came
    into the hospital after 2 days of acute pain. The appellants correctly point
    out that Ms. Shantrys evidence was that Mr. Miller was in acute pain for less
    than 2 hours on July 14, 2007 before arriving at the emergency room. The
    appellants argue that the trial judges factual error underlay his inference
    that Mr. Miller died from a significant pre-existing medical issue.

[75]

I
    would reject this submission. When Mr. Miller arrived at hospital, and
    throughout his time there, it was clear that he was very ill, possibly with a
    viral infection. He was in excruciating pain and had a fever. The trial judges
    rejection of the appellants theory as to cause of death does not depend upon
    Mr. Miller being in pain for two days. The respondents theory of causation
    an unidentified condition, possibly a viral infection  was in no way dependent
    on a finding that he was in pain for days prior to his arrival at the hospital.

[76]

The
    second factual error alleged was that the trial judge wrote that Mr. Millers clinical
    presentation did not accord with death by overdose, as there were no symptoms
    of overdose up until 3 a.m. on the night of his death. This statement, it is
    argued, ignores the evidence that an adverse reaction to Dilaudid could occur 20
    minutes to 3.5 hours after a dose. Mr. Miller was last observed alive by the
    night nurse about 30 minutes after his third dose of Dilaudid, meaning that his
    death occurred squarely within the time range indicated in the medical
    evidence. The appellants submit that, by making his impugned comment, the trial
    judge ignored or forgot about the last dose of Dilaudid.

[77]

I
    would reject this submission. The trial judges statement is supported by the
    evidence of Dr. Juurlink, who rejected the suggestion that an adverse reaction
    to Dilaudid could have taken place after 3 a.m. Dr. Juurlink said this:

Its extraordinarily improbable because it presupposes that all
    of his toxicity manifested, all of the harmful effects that Ive described to
    you earlier manifested after a delay not just following the final dose of
    [Dilaudid], but after an even more considerable delay after the first and
    second doses. So it would  be tantamount to suggesting that all of the
    toxicity of all of the opioids he had received in the 12 to 24 hours before he
    died was somehow brought to bear on him in this period after the delay that
    youve just outlined and that is very difficult for me to accept.

[78]

This
    evidence supports the trial judges implicit conclusion that the effects of an
    overdose would have manifested by 3 a.m. on the day of Mr. Millers death.

[79]

I
    conclude that the trial judge did not err in his finding on causation.

DISPOSITION

[80]

I
    do not agree that the trial judges approach to liability was flawed. Nor do I
    accept that he erred in his determinations of the standard of care and
    causation.

[81]

I
    would dismiss the appeal. The parties advised the court that they would resolve
    costs on their own.

Released: S.E.P.  June 4, 2015

M.L. Benotto J.A.

I agree E.A. Cronk
    J.A.

I agree S.E. Pepall
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Skypower CL 1 LP v. Ontario Power Authority, 2015
    ONCA 427

DATE: 20150611

DOCKET: C59869

Juriansz, Rouleau and Lauwers JJ.A.

BETWEEN

Skypower CL 1 LP, Sunspark LP,
    Greengiant LP, Luminescent LP, Brilliance LP, Shinylight LP, Clearlight LP,
    Centerlight LP, Panelight LP, Avidlight LP, Starlight LP, Winterlight LP,
    Springlight LP, Autumnlight Lp, Stagelight Lp, Sunnypark Lp, Brightpark Lp,
    Oxford Solar Park Lp, Crystallight LP, Novapark LP, Stanford LP, Surelight LP,
    Solarcells LP, Absolutelight LP, Astrallight LP, Blazinglight LP, Eastlight LP,
    Glowinglight LP, Houselight LP, Radiantlight LP, Realsunny LP, Shimmerlight LP,
    Twinklelight LP, Maxlight LP, Keylight LP, Maglight LP, Horizonlight LP,
    Globallight LP, Westernlight LP, Southlight LP, Stormlight LP, Astrolight LP,
    Superlight LP, Spotlight Solar Park LP, Sparklight LP, Sagelight LP, Reallight
    Solar Park LP, Orangelight LP, Onelight Solar Park LP, Glowlight LP, Firelight
    LP, Finitelight LP, Everlight Solar Park LP, Copperlight LP, Brightlight Solar
    Park LP, Bluelight Solar Park LP, Photonlight LP, Cleanlight LP, Smartlight
    Solar Park LP, Emittinglight LP, Purelight LP, Newlight Solar Park LP, Siliconlight
    LP, Mainlight LP, Brilliantlight Solar Park LP, Extralight LP, Shiningstar
    Solar Park LP, Infinitelight Solar Park LP, Directlight Solar Park LP,
    Forwardlight LP, Progressivelight LP, Advancelight LP, Nextlight LP, Dawnlight
    LP, Futurelight LP, Zoomlight LP, Yellowlight LP, Royallight LP, Midlight LP,
    Kinglight Lp, Sollight Solar Park Lp, Hubblelight Lp, Galaxylight Lp,
    Laserlight Solar Park LP, Atomlight LP, Joylight LP, Alphalight LP, Betalight
    Solar Park LP, Gammalight LP, Omegalight LP, Prismlight LP, Aqualight Solar
    Park LP, Sigmalight LP, Rollinglight LP, Rainbowlight Solar Park LP,
    Distinctlight LP, Mistlight LP, Glitterlight LP, Sapphirelight LP, Rubylight
    LP, Magnificentlight LP, Flarelight LP, Sheerlight LP, Vividlight LP, Fulllight
    LP, Majesticlight LP, Orientlight LP, Ancientlight LP, Regallight LP,
    Extravagantlight LP, Illustriouslight LP, Violetlight LP, Eveninglight LP,
    Bloomlight Solar Park LP, Sunnydaylight LP, Calmlight LP, Classiclight Solar
    Park LP, And Flashlight LP

Plaintiffs (Appellants)

and

Ontario Power Authority and Her
    Majesty The Queen In Right Of Ontario

Defendants (Respondents)

Timothy H. Gilbert, Matthew Diskin and Andrew Moser, for
    the appellants

Lise Favreau, Amy Leamen, Howard B. Borlack and David
    Elmaleh, for the respondents

Heard and released orally: June 5, 2015

On appeal from the order of Justice Victoria R.
    Chiappetta of the Superior Court of Justice, dated December 15, 2014.

ENDORSEMENT

[1]

The appeal must be dismissed.

[2]

As the motion judge found, the appellants could have raised in the
    judicial review applicationin which they attacked the lawfulness of the Ministers
    direction to the OPA, and the resulting changes to the FIT programthe
    allegation that they were specifically targeted. As this court said in
Aba-Alkail
    v University of Ottawa
, 2013 ONCA 633 at para. 12:

the abuse of process doctrine can apply not only to bar
    re-litigation of issues that were actually determined in the administrative
    process, but also to issues that could have been determined (
Ontario v.
    Lipsitz,
2011 ONCA 466 at para. 88). This gives further incentive to raise
    all issues at the administrative proceeding and to participate "with full
    vigour".

[3]

The motion judge was correct in deciding that the appellants failure to
    raise the targeting allegation in the judicial review proceedings was
    sufficient for the abuse of process doctrine to apply.

[4]

The issue then, is whether the motion judge erred in deciding not to
    exercise her discretion to permit the action to proceed nevertheless. She found
    the appellants had a good opportunity to put their position forward in the
    judicial review proceedings, and the respondents refusal to produce certain documents
    in those proceedings did not result in any unfairness. Her conclusion that not
    applying the doctrine of abuse of process in this case would offend the
    principle of finality and undermine the credibility of the judicial process is
    deserving of deference.

[5]

We need not deal with the appellants other arguments, as the finding of
    abuse of process forecloses their equitable as well as their legal claims.

[6]

As there is no error of principle in her exercise of that discretion, the
    appeal is dismissed. Each of the respondents is entitled to costs of $10,000,
    inclusive of disbursements and taxes.

R.G. Juriansz J.A.

Paul Rouleau J.A.

P. Lauwers J.A.