COURT OF APPEAL FOR ONTARIO

CITATION: Goodwin v. Olupona, 2013 ONCA 259

DATE: 20130425

DOCKET: C53018

Laskin, Blair and Epstein JJ.A.

BETWEEN

Adam Goodwin by his litigation guardian Debra
    Goodwin, Debra Goodwin, Brian Goodwin, Rachel Goodwin by her litigation
    guardian Debra Goodwin, and Jessica Goodwin by her litigation guardian Debra
    Goodwin

Plaintiffs

and

Dr. Samuel Olupona
, Dr. Orest Sochaniwshyj,
    Dr. Edward Cormode, Dr. Jane Doe,
Nurse
Jane Doe I
Sulabha Burhanpurkar
,
Nurse
Jane Doe II
Bernice Thibedeau
, and
Orillia Soldiers Memorial
    Hospital

Defendants/
Appellants
/
Respondent

Steven Stieber and Elizabeth Bowker, for the appellants

Peter W. Kryworuk and Cynthia B. Kuehl, for the
    respondent

Heard: October 2, 2012

On appeal from the judgment of Justice Bruce A. Glass of
    the Superior Court of Justice, sitting with a jury, dated November 5, 2010.

Epstein
    J.A.:

A.

Overview

[1]

On August 22, 2002, Debra Goodwin gave birth to twins. The first,
    Jessica, was delivered vaginally without complications. The second, Adam, was
    delivered by Caesarean section (C-section). Unfortunately, Adam was injured
    prior to birth and, shortly after he was born, was diagnosed with spastic
    quadriplegia. Mr. and Ms. Goodwin, on their own behalf and on behalf of their
    three children, brought a negligence action against the health professionals
    involved in Adams delivery and against the hospital where Adam was born.

[2]

The defendants in that action were:

·

Dr. Samuel Olupona, the physician in charge of the twins delivery;

·

Nurse Sulabha Burhanpurkar, the nurse primarily responsible for Ms.
    Goodwins care until 7:00 p.m., which was a little more than an hour before the
    first baby was born;

·

Nurse Bernice Thibedeau, the nurse who replaced Nurse
    Burhanpurkar, and the nurse primarily responsible for  Ms. Goodwins care
    between 7:00 p.m. and immediately prior to the twins births; and

·

the Orillia Soldiers Memorial Hospital.

[3]

A few days into the trial, the plaintiffs settled with Dr. Olupona. The
    trial therefore proceeded as a cross-claim by Dr. Olupona against the hospital
    and the two nurses.

[4]

After a 32-day jury trial, followed by 8 days of deliberations, the jury
    returned a verdict finding Nurse Burhanpurkar 75 per cent liable and the
    hospital 25 per cent liable for Adams injuries. The jury found no negligence
    on the part of Dr. Olupona or Nurse Thibedeau and the claims against them were
    therefore dismissed.

[5]

Nurse Burhanpurkar and the
    hospital
appeal.
[1]

[6]

The first main ground of appeal is that the jury returned an
    unreasonable verdict. While, in different respects, both appellants challenge the
    findings of negligence, the real focus is causation. The appellants submit
that
the jurys verdicts were unreasonable as
    there was insufficient evidence to establish that any established negligence on
    their part caused Adams injuries.

[7]

As a second main ground of appeal, the appellants submit that the charge
    to the jury contained reversible errors.

[8]

For the reasons that follow, I would dismiss the appeal. In my view,
    there was sufficient evidence to support the jurys conclusions that both Nurse
    Burhanpurkar and the hospital failed to meet the requisite standard of care, and
    that their negligence caused Adams injuries. The verdict in these respects cannot
    be said to be unreasonable. Further, I find no error in the charge to the jury.

B.

BACKGROUND

[9]

At 2:00 p.m. on August 22, 2002, Ms. Goodwin checked into the hospital
    for an elective induction to give birth to twins. There was no indication at
    that point that the babies were other than healthy. At approximately 4:30 p.m.,
    Dr. Olupona performed an ultrasound. The first twin, Jessica, was in the proper
    vertex (head-down) position. However, the second twin, Adam, was in a footling breech
    position, meaning that with a vaginal delivery one or both feet would come out
    first. The doctor did not notify anyone about the twins presentation or his
    birth plan. Nurse Burhanpurkar, the nurse primarily in charge of Ms. Goodwins
    care at that time, was present during the ultrasound and had access to Dr. Oluponas
    recorded findings in the chart.

[10]

At
    about 4:45 p.m., Dr. Olupona examined Ms. Goodwin and found her to be four
    centimetres dilated. He broke her water to induce labour, a process known as
    Artificial Rupture of the Membrane (ARM). Shortly after administering the
    ARM, Dr. Olupona notified the anaesthetist and the paediatrician of the
    impending delivery, and ordered blood work. He made a further order, noted on Ms.
    Goodwins chart, for an Epidural PRN. This order directs the nurses to provide
    an epidural if needed or if requested by the patient. The administration of an
    epidural is a two-step process. First, the nurse establishes a mainline intravenous
    with saline solution. Second, an anaesthetist inserts a tube into the patients
    lower back through which the pain-relieving substances are delivered. After
    writing his orders, Dr. Olupona returned to his office, a three-minute walk
    from the hospital.

[11]

Ms.
    Goodwin began to have contractions at about 5:00 p.m. These contractions,
    together with the extent of her dilation, meant that sometime after that point,
    and by 6:00 p.m. at the latest, Ms. Goodwin was in active labour.

[12]

Mr. and
Ms. Goodwin
s uncontradicted evidence is that
she asked an
    unidentified nurse for an epidural at 6:00 p.m., and once again between 6:30
    p.m. and 6:45 p.m
.
She was not given one.
Nurse Burhanpurkar
testified that she was not
    aware of the requests or that Ms. Goodwin was even in labour
.

[13]

While Nurse Burhanpurkar was responsible for Ms. Goodwins care,
    the twins heart rates were not monitored continuously
using an electronic foetal heart rate monitor.
Rather, they were
    checked only twice  at 4:45 p.m. and 6:00 p.m. using a portable doctone, a
    device that measures the heart rate at a point in time. The results of the FHR
are an indication of the health of the foetus.

[14]

At 7:00 p.m. Nurse Thibedeau took over from Nurse
    Burhanpurkar and assumed care of
Ms. Goodwin.  Nurse Thibedeau was incorrectly
    advised that both twins were in the vertex (head first) position. She moved Ms.
    Goodwin into the labour and delivery area. N
o
    one there was aware
that the second twin was in
footling breech position. Nurse Thibedeau checked the FHRs with a
    doctone sometime between 7:00 p.m. and 7:30 p.m. The rates were within the
    acceptable range.

[15]

Nurse Thibedeau inserted
an
    intravenous line in preparation for an epidural. Dr. Rosati, the
anaesthetist on call,
had been advised of the
    need to provide Ms. Goodwin with an epidural. However, he
was busy in
the
O.R.
with another patient and indicated he could not attend to Ms. Goodwins needs
    until the completion of the surgery in which he was involved.

[16]

Dr.
    Orest Sochaniwskyj, who was filling in for Ms. Goodwins regular family doctor,
    contacted the hospital shortly before 7:30 p.m. to inquire after Ms. Goodwin. Nurse
    Linda Veitch advised him that Ms. Goodwin had requested an epidural. Dr.
    Sochaniwskyj told the nurse to immediately contact Dr. Olupona. He then left
    for the hospital. Nurse Thibedeau commenced electronic FHR monitoring at 7:56
    p.m., and normal heart rates were registered.

[17]

When
    Dr. Sochaniwskyj arrived at the hospital, Ms. Goodwin had been transferred from
    the labour and delivery room to case room two, and delivery was imminent. Dr. Olupona,
    who was not contacted until 8:00 p.m., arrived at the hospital at 8:11 p.m.,
    just in time to supervise Dr. Sochaniwskyjs vaginal delivery of Jessica at
    8:24 p.m. An epidural had not been administered.

[18]

Following
    the Jessicas delivery, Ms. Goodwin advised Dr. Olupona that she had been
    asking for an epidural since 6:00 p.m. Nurse Thibedeau testified that Dr. Olupona
    was shocked and angry that his order for an epidural had not been followed.

[19]

Dr.
    Olupona examined Ms. Goodwin and conducted an ultrasound. The second twin
    remained in breech position. Dr. Olupona had no choice but to deliver the
    second baby by C-section in the O.R.; he could not deliver a breech baby
    vaginally unless the mother had an epidural. He also could not perform a
    C-section in case room two as it was poorly lit and the anaesthesia machine was
    not functioning well. Dr. Olupona ordered the O.R. to be made ready quickly.

[20]

Nurse
    Thibedeau monitored the FHR of the second baby at 8:35 p.m. and observed a
    deceleration from the normal range. She turned Ms. Goodwin on her side, the
    standard practice under such circumstances, and the heart rate returned to
    normal. The heart rate was monitored once again at 8:45 p.m., and the results
    were normal.

[21]

At
    8:57 p.m., Ms. Goodwin was moved into the O.R., and Adam was delivered at 9:24
    p.m. by C-section. He was flat, and required resuscitation. He was
    subsequently diagnosed with spastic quadriplegia.

C.

ISSUES

[22]

The
    appellants advance two main grounds of appeal:

1)

The jurys verdict was
    unreasonable and unsupported by the evidence with respect to its conclusions that:

a.

having accountable
    supervision of nursing staff and providing adequate resources in case room two
    was part of a hospitals standard of care;

b.

Nurse
    Burhanpurkars negligence in failing to properly monitor the FHR, and the
    hospitals negligence in failing to supervise and provide adequate facilities, caused
    Adams injury; and

c.

having a plan of
    care was part of a nurses duty of care, and Nurse Burhanpurkars negligence in
    failing to prepare one and her failure to administer an epidural in a timely
    manner caused Adams injury.

2)

The jury charge was
    deficient in that the trial judge failed to:

a.

properly explain
    the legal test for causation;

b. mention certain material facts; and

c. set out the standard of care of nurses.

D.

ANALYSIS

1)

Unreasonable verdict

[23]

It
    is well-established that a jury verdict will be set aside only if it is so
    plainly unreasonable and unjust as to satisfy the court that no jury reviewing
    the evidence as a whole and acting judicially could have reached it:

McCannell
    v. McLean
, [1937] S.C.R. 341, at p. 343. Further, [w]here there is
    some evidence to support the verdict, a jury will be accorded a high degree of
    deference:
Gutbir (Litigation guardian of) v. University Health Network
,
    2012 ONCA 66, 287 O.A.C. 223, at para. 5.

[24]

At
    the beginning of oral argument, the appellants conceded that there was sufficient
    evidence upon which the jury could find that Dr. Olupona met the standard of
    care. Nevertheless, in order to provide context for the causation analysis
    central to this appeal, I will here set out some of the evidence that supported
    this verdict.

[25]

Dr.
    Andrew Browning, qualified as an expert in obstetrics, gave evidence on behalf
    of Dr. Olupona. Dr. Browning testified that an elective primary C-section was
    much less common in 2002 when Adam was born. In his opinion Dr. Oluponas plan
    to deliver the twins vaginally and only resort to a C-section if necessary was therefore
    reasonable. The fact that the second twin was in breech position did not, in
    Dr. Brownings view, change the appropriateness of Dr. Oluponas birth plan, since
    he had experience in, and felt comfortable with, performing vaginal breech
    extractions.

[26]

Dr.
    Browning further opined that Dr. Oluponas order of an epidural PRN was also
    standard protocol. In fact, he said that an order that one be placed immediately
    or at a specified time would not have been reasonable, as the timing of giving
    the mother an epidural depended on the onset of labour.

[27]

Dr.
    Browning also supported Dr. Oluponas actions after being summoned to the
    hospital. He agreed that when Dr. Olupona became aware that his order for an
    epidural had not been complied with, the only reasonable option for Adams
    delivery was to perform a C-section in the O.R.  Dr. Olupona did what he could
    to hasten the delivery of the second twin.

[28]

The
    appropriateness of Dr. Oluponas response to the urgency of the situation was
    also supported by Nurse Thibedeau, who testified that Dr. Olupona not only ordered
    the O.R. to be prepared quickly but also actually assisted the nurses in preparing
    the O.R.

[29]

In
    sum, the evidence indicated that Dr. Olupona decided upon a reasonable birth
    plan, gave reasonable directions to the nursing staff, and reasonably expected
    the nurses to follow his orders and otherwise carry out their nursing duties in
    accordance with the standard of care expected of them.

a.

Did the
    jury err in finding negligence on the part of the hospital given the lack of
    evidence as to the hospitals standard of care?

[30]

The
    hospital submits that since Dr. Olupona called no expert evidence on the
    hospitals standard of care, the jury had no basis to conclude that the
    hospital was negligent.

[31]

In
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674, the Supreme Court opened the
    door for a jury to decide upon a standard of care without the assistance of
    expert evidence. The court held that a jury was free to find that standard
    practice in the medical industry violated the standard of care, and
    consequently, the jury could decide for itself what constitutes the standard of
    care even where expert evidence says otherwise.

[32]

Whether
    expert evidence is required turns on whether the nature of the issue can be
    decided on the basis of the ordinary knowledge possessed by the jury or, on the
    contrary, the matter requires expert evidence because it is beyond the ken of
    the average juror:
ter Neuzen
, at para. 55. See also Ellen I. Picard
    and Gerald B. Robertson,
Legal Liability of Doctors and Hospitals in Canada
,
    4th ed. (Toronto, Ont.: Thomson Carswell, 2007), at p. 460.

[33]

Here
    the jury identified the hospitals breach of the standard of care as being its
    failure to provide appropriately trained nursing staff and ensure that they
    were sufficiently supervised, and its failure to provide adequate equipment and
    resources in its labour and delivery facility.

[34]

Identifying
    these fundamental obligations  that a hospital must provide staff and
    facilities capable of meeting the basic needs of patients  is well within the
    ken of the average juror. These responsibilities form the very foundation of
    a hospitals duties to its patients.

[35]

I
    note that while not dispositive, during pre-charge discussions, appellants
    trial counsel made no objection to the charge on the hospitals standard of
    care and in fact resisted efforts to make changes. Nevertheless, I see no error
    as, in my view, the evidence of the two doctors, combined with the conventional
    knowledge of the jurors, was sufficient to equip the jury with the information
    necessary to determine the hospitals standard of care in these areas.

[36]

The
    jurys findings that the hospital did not meet its standard of care were also borne
    out by the evidence.

[37]

In
    terms of the hospitals obligation to ensure proper training and supervision of
    its nurses, the jury had to look no further than Nurse Burhanpurkar herself who
    admitted that she had limited experience caring for a woman pregnant with
    twins. It was open for the jury to find that Nurse Burhanpurkar was not
    sufficiently competent to care for Ms. Goodwin, and attribute part of this lack
    of competence to the hospitals failure to train and supervise its nurses.

[38]

In
    terms of the hospitals obligation to maintain and equip its facilities to the
    point that they were functional and safe, as I mentioned above, the jury heard
    from Dr. Robinson and Dr. Olupona to the effect that they would not operate in
    case room two as the lighting was bad and the anaesthetic equipment was
    unreliable. Again, maintaining the physical plant and equipment at a level
    capable of meeting the patients needs is the hospitals responsibility.

[39]

In
    my view, the jurys verdict concerning the hospitals negligence was supported
    by the evidence and is reasonable.

b.

Was the jurys finding
    that the appellants negligence caused Adams injuries unreasonable?

[40]

Nurse
    Burhanpurkar concedes that she fell below the standard of care in failing to continuously
    monitor the FHRs after Ms. Goodwin entered labour; Guidelines from the Society
    of Obstetricians and Gynaecologists of Canada indicate that with the
    commencement of labour the FHR should be continuously monitored. Additional evidence
    concerning this obligation was provided by Nurse Kathryn Doren, who gave expert
    testimony that as soon as regular contractions began, a nurse in Nurse
    Burhanpurkars circumstances should have commenced continuous FHR monitoring to
    ascertain a baseline heart rate.

[41]

I have already held that the jurys verdict that the
    hospital deviated from its standard of care is reasonable.

[42]

The appellants negligence is established. However, t
o succeed in his cross-claim, Dr. Olupona had to show that the
    appellants negligence caused Adams damages.

[43]

This is the core of the appellants arguments.
    They submit
that there was insufficient evidence upon which a properly
    instructed jury could reasonably have found that the negligence of Nurse
    Burhanpurkar and the hospital caused Adams injury.

i.

The applicable law

[44]

In
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, the Supreme
    Court reaffirmed the primacy of the but for test in causation, and in
    particular its application in a robust, common-sense fashion. The court made it
    clear, at paras. 9 and 38, that in concluding that causation has been
    established, the trier of fact may rely on inferences that are reasonably
    available on the evidence:

The but for causation test must be applied in a robust common
    sense fashion.
There
    is no need for scientific evidence of the precise contribution the defendants
    negligence made to the injury
.

In many cases of causal uncertainty, it is conceivable that
    with better scientific evidence, causation could be clarified. Scientific
    uncertainty was referred to in
Resurfice

[
Corp. v. Hanke
, 2007 SCC 7, [2007] 1 S.C.R. 333]
    in the course of explaining the difficulties that have arisen in the cases.
    However, this should not be read as ousting the but for test for causation in
    negligence actions.
The
    law of negligence has never required scientific proof of causation; to repeat
    yet again, common sense inferences from the facts may suffice
.

[45]

This
    issue was also discussed recently in
Goodman v. Viljoen
, 2012 ONCA 896,
    299 O.A.C. 257. Doherty J.A. (dissenting, but not on this point) reviewed
Clements
,
    at para. 76:

The robust and pragmatic approach takes into account the nature
    of the factual issues underlying the causation question and the kind of
    evidence that the parties are reasonably capable of producing on those issues.
    The approach acknowledges that the causation inquiry is essentially a practical
    one based on the entirety of the evidence and made with a view to determining
    whether the plaintiff has established causation on the balance of probabilities
    and not to a scientific certainty.

See also
Ediger v. Johnston
, 2013 SCC 18, at
    para. 36.

[46]

It
    can be seen that this approach involves a consideration of two things  the
    nature of the factual issues underlying causation and the kind of evidence the
    parties are able to adduce.

ii.

The jurys
    findings

[47]

My
    analysis of whether there was evidence to support the jurys conclusions
    regarding causation starts with the specific acts of negligence found by the
    jury. Its answer to the question of whether Nurse Burhanpurkar fell below the requisite
    standard of care was as follows:

-

Nurse
    Burhanpurkar was aware of her responsibilities of a high risk pregnancy, but
    failed to perform the majority of her duties, which were critical to the well-being
    of Debra Goodwin + twins.

-

Nurse
    Burhanpurkar failed to follow Dr. Oluponas orders.

-

Nurse
    Burhanpurkar did not perform external [foetal] monitoring for 30 minutes or
    longer and did not record an intrapartum flow sheet at the time of formal
    admission of Debra Goodwin.

-

Nurse
    Burhanpurkar failed to create a plan of care that addressed the patients[]
    needs and well[-] being.

-

Nurse
    Burhanpurkar did not perform adequate monitoring for the duration of her shift,
    such as [foetal] heart monitoring, monitoring of contractions and progress of
    labour.

-

Nurse
    Burhanpurkar did not follow[]up on Debra Goodwin[]s progress + whereabouts.

-

Nurse
    Burhanpurkar did not perform adequate communication + documentation including
    no progress notes by Nurse Burhanpurkar.

[48]

The
    jury also concluded that the hospital breached its standard of care,  by
    failing to have accountable supervision of nursing staff, and fail[ing] to
    provide adequate equipment and resources in case room #2.

[49]

The
    jury found that Nurse Burhanpurkars negligence caused Adams injuries as
    follows:

By not monitoring Debra Goodwin, time of labour was unknown and
    the patient was not transferred from the triage area to the labour and delivery
    unit. Had this transfer been conducted, the labour and delivery nurses would
    have had time to prepare[,] including starting an IV and arranging for an
    epidural. In being transferred to the labour and delivery unit the patient
    would have received one on one monitoring + care, and Dr. Olupona would have
    been notified in regards to patient[]s progressive condition.

By not monitoring Debra Goodwin + babies[,] any signs of
    distress were not recorded or acted upon[,] which could have accumulated and
    most likely contributed to Adam Goodwins brain injury.

Debra Goodwins request[s] for an epidural were not acted upon
    nor did Nurse Burhanpurkar determine that the patient receive an epidural,
    therefore the patient did not receive an epidural in a timely fashion[,] which
    directly contributed to the events that happened after, which most likely [led]
    to Adam Goodwins brain injury.

Nurse Burhanpurkar did not have a proper plan of action that
    addressed Debra Goodwin and babies needs + well-being and relied upon the
    patient to notify her of any changes in her condition. This resulted in the
    next shift that began at 7:00 p.m. not having a progressive report of the
    patient[]s condition[,] which contributed to the actions that were undertaken
    later which[,] most likely have led to Adam Goodwins brain injury.

[50]

With
    respect to the hospital, the jury concluded:

We believe that had [accountable supervision of nursing staff]
    been in place[,] the monitoring of Debra Goodwin and babies[,] which involved a
    high risk pregnancy in a level 2 hospital would have indicated any distress
    during the progression of labour and actions taken most likely would have
    prevented the brain injury of Adam Goodwin.

[51]

An
    examination of the jurys answers to the questions involving the appellants
    negligence and how they caused Adams injury discloses two prevailing themes
    lack of awareness of the progress of Ms. Goodwins delivery and the babies
    health, and delay in the delivery.

[52]

Certain
    facts relevant to these themes are not in dispute:

·

Ms. Goodwin went into active labour sometime between 5:00 p.m. and
    6:00 p.m;

·

Dr. Olupona was not called to come to the hospital until 8:00 p.m;

·

notwithstanding Ms. Goodwins requests for an epidural between
    6:00 p.m. and 7:00 p.m., the first steps to comply with her request were not
    taken until after 7:00 p.m., at which time the anaesthetist was unavailable;

·

arrangements for an O.R. to be made available did not start until
    about 8:34 p.m., and the O.R. was only properly prepared at 8:57 p.m.;

·

Nurse Burhanpurkar did not monitor the FHRs in accordance with
    her obligations;

·

Nurse Burhanpurkar failed to administer an epidural in accordance
    with Dr. Oluponas order; and

·

Nurse Burhanpurkar did not maintain any notes of Ms. Goodwins
    progress and treatment.

iii.

The expert
    evidence

[53]

Two
    experts were called on the issue of causation.

[54]

Characteristic
    of medical malpractice litigation, the jury was required to assess the
    competing opinions of these highly qualified experts and come to conclusions
    based on factual uncertainty.

[55]

Dr.
    Michael Marrin, a neonatologist qualified to provide expert opinion evidence with
    respect to the nature and timing of the injury to Adam, testified on behalf of
    the appellants. Dr. Marrins view was that Adams neurological problem was, on
    balance, due to a sudden hypoxic ischemic injury (insufficient oxygen to the
    tissues of the body) that occurred less than 30 minutes, and more likely less
    than 20 minutes, before birth. On his theory, FHR monitoring would not have
    revealed any abnormalities, and could not have prevented the injury.

[56]

Dr.
    James Low, an expert in foetal monitoring and asphyxia, was qualified as an
    expert in obstetrics and gynaecology on the cause and timing of brain injuries
    suffered by Adam. He gave evidence on behalf of Dr. Olupona.  Dr. Lows opinion
    was that it was more likely that Adam had sustained intermittent
foetal hypoxia
     periodic episodes in which Adams tissues were deprived of
oxygen. Over
    time, these short recurrent episodes of foetal asphyxia had a cumulative effect
    that sensitized or weakened the foetus to the point where the brain was damaged.

[57]

As
    can be seen, the primary divide between the two respected experts was over the
    timing of the event that may have caused Adams injury. I use the word may as
    neither doctor could say with certainty the circumstances that led to Adams
    injury. Both experts offered well-thought out and well-researched opinions, but,
    by their own admission, the persuasiveness of their opinions was necessarily
    diminished by the evidentiary uncertainty that is inescapable when dealing with
    injuries in utero.

[58]

Dr.
    Low candidly acknowledged the challenges presented by the immutable scientific
    reality that in these circumstances, clinical evidence needed to establish
    causation with any degree of scientific certainty is simply not available in
    the vast majority of cases. He went out of his way to qualify his evidence
    using phrases such as we are just speculating and we cant say for sure. These
    qualifications notwithstanding, Dr. Low did provide the jury, as best he could,
    with a causative route to Adams injury and with clinical evidence to support
    that route. I refer to evidence of intrauterine growth retardation and of the
    post-delivery discovery of elevated nucleated red blood cells.

[59]

While
    Dr. Low cautioned the jury about his views, the jury was entitled to accept
    them, and evidently did so.  . The jury found that Adams injury occurred
    between 8 a.m. and birth and not necessarily only in the last twenty or thirty
    minutes. This conclusion is inconsistent with Dr. Marrins theory.  As well,
    the jurys causation answers set out above demonstrate that the time period
    upon which it focussed in finding causation was when Ms. Goodwin was in labour.

[60]

While
    the vexing question of causation did not find a definitive answer in the expert
    evidence, the jury accepted the opinion of a decidedly qualified expert who was
    careful not to overstate the certainty with which he held his views and who was
    able to point to supporting clinical evidence.

[61]

By
    subscribing to Dr. Lows view, the jury accepted, on balance, that Adams brain
    injury resulted from the combined effect of intrauterine growth retardation,
    intermittent hypoxia episodes during labour, and then possible asphyxia within
    the last 20 minutes before birth.

[62]

However,
    the appellants submit that even on Dr. Lows theory of causation, the evidence
    does not support the conclusion that Adam would not have been injured but for
    the negligence of Nurse Burhanpurkar and, through her, the hospital.

iv.

The causal link

[63]

I
    now to turn to the analysis of this issue.

[64]

According
    to Dr. Low, the episodes of hypoxia, upon which his opinion of what caused
    Adams injury is based, manifest themselves in sudden, brief decelerations of
    the FHR. An episode of hypoxia can be detected by monitoring the FHR. The
    longer Adam is in the womb without proper FHR monitoring, the greater the risk
    that episodes of hypoxia go undetected. The greater the number of undetected
    episodes of hypoxia Adam experienced, the greater the danger of asphyxia
    leading to brain injury.

[65]

This
    evidence supports the finding that had Nurse Burhanpurkar monitored the FHRs as
    she was required to do, and had she detected periodic decelerations of Adams
    heart rate, Dr. Olupona would have been alerted and he would have delivered
    Adam immediately. The evidence is clear that Adam could have been delivered
    hours earlier than he was. Earlier delivery could have resulted in Adam being
    born before his injury.

[66]

In
    oral argument, the appellants relied on the lack of evidence that any hypoxic
    episodes actually took place while Ms. Goodwin was in Nurse Burhanpurkars care
    to support their argument that since causation could not be established the jurys
    verdict was unreasonable. Specifically, if no hypoxic episodes took place
    between 5:00 p.m. when Ms. Goodwin went into labour, triggering the requirement
    to monitor the FHR on a continuous basis, and 7:00 p.m. when Nurse Burhanpurkar
    went off duty, then her negligence in failing to monitor the FHRs could have no
    impact on the injury caused in accordance with Dr. Lows theory.

[67]

I
    am not persuaded by this argument.

[68]

First,
    direct evidence of causation is not necessary. This courts recent decision in
Gutbir
was a case, where, as in this case, a baby was born with a permanent brain
    injury. The jury in that case found the cause of the injury to be prolonged
    partial hypoxic insult  a continuous deprivation of oxygen prior to birth. As
    in this case, the nurse in
Gutbir
breached her duty of care by failing
    to monitor the FHR. The jury found, on a balance of probabilities, that heart
    rate abnormalities that should have been detected were not.

[69]

In
    upholding the jurys verdict, this court held, at para. 43:

While there was no direct evidence of causation, there is
    evidence from which the jury could properly infer a causal connection. Dr.
    Carson testified that, if [electronic foetal monitoring] had been used or [manual
    intermittent auscultation] had been done properly, the distress of the foetus
    would have been detected, detection would have prompted intervention, and
    intervention would likely have been beneficial in this case. The jury's answer
    tracks Dr. Carson's evidence which indicates that they accepted it. The
    evidence of Dr. Hill, a paediatric neurologist, was that it takes one or two
    hours of hypoxic ischemic insult before injury results. The extent of the
    injury increases as time goes on. The evidence of Dr. Carson and Dr. Hill
    establishes that, had the standard of care with respect to foetal monitoring
    not been breached, the distress of the foetus would have been detected and,
    once detected, there was sufficient time to deliver Zmora before injury to her
    brain resulted.

[70]

I
    acknowledge that the medical opinions expressed in
Gutbir
were
    stronger and more certain than the opinion Dr. Low offered in this case. Further,
    the jury in
Gutbir

expressly acknowledged which theory of
    causation it accepted. However, as set out above, Dr. Lows opinion, one that
    the jury was entitled to accept and that it did accept, provided an evidentiary
    basis for the jurys finding:  because Nurse Burhanpurkar did not monitor the
    FHR, any signs of distress were not recorded or acted upon which could have
    accumulated and most likely contributed to Adam Goodwins brain injury.

[71]

As
    this court did in
Gutbir
, I would reject the appellants submission
    that in order for causation to be established, evidence was required as to the
    exact timing of Adams irregular foetal heart beat. Here, upon accepting Dr.
    Lows theory of causation and his evidence that concentrated the timing of the
    hypoxic episodes to when Ms. Goodwin was in labour, the jury could reasonably
    infer that during the first half of Ms. Goodwins labour: from 5:00 p.m. to
    7:00 p.m., when Nurse Burhanpurkar was in charge of her care, Adam experienced an
    episode or several episodes of foetal hypoxia.

[72]

This
    takes me back to the words of the Supreme Court of Canada in
Clements
that causation evidence should be approached in a robust and pragmatic fashion,
    having regard to the nature of the factual issues underlying causation and the
    kind of evidence the parties are able to adduce. A review of the evidence of
    both Dr. Marrin and Dr. Low makes it clear that the factual issues underlying
    causation in this case are particularly complex. In addition, Dr. Olupona was
    not able to adduce the clinical evidence that may have provided direct evidence
    of causation.  This is because due to Nurse Burhanpurkars own negligence, the
    FHRs, reliable information about Adams welfare while Ms. Goodwin was in labour,
    was not available.

[73]

Accepting
    the appellants argument would effectively immunize nurses in similar
    circumstances from liability, despite an acknowledged departure from the
    standard of care: c.f.
Edige
r
, at para. 44. This would mean
    that where intermittent foetal hypoxia is the theory of causation, the nurses
    own negligence in failing to monitor the foetal heart rate would render it
    virtually impossible for the nurse to be held liable.

[74]

Nurse
    Burhanpurkar and the hospital should not be allowed to hide behind a lack of
    evidence brought about by their own negligence, in the face of expert evidence
    supporting Dr. Oluponas position.

[75]

In
    my view, there was evidence capable of supporting the jurys findings of negligence
    and causation - that on a balance of probabilities but for Nurse Burhanpurkars
    failure to properly monitor the FHRs, for which both the nurse and the hospital
    bear a degree of responsibility, it was likely that Adams injury could have
    been avoided.

c.

Were the jurys other findings unreasonable?

[76]

The evidence was replete with areas
    where it could be said that Nurse Burhanpurkar breached the standard of care of
    a nurse in her situation.  Generally, Nurse Burhanpurkar displayed a persistent
    lack of attention to Ms. Goodwin and lack of response to the progress of her
    labour. She
failed to administer an epidural in accordance with Dr.
    Oluponas order. She failed to prepare a plan of care and maintain proper
    records.
She did not move
Ms. Goodwin
from the triage area (holding and assessment) to the
    labour and delivery birthing room, as she should have done so that Ms. Goodwin
    would have received the attention she needed.

[77]

However,
    given my conclusion on the issue of FHR monitoring and causation, it is
    unnecessary to decide whether Nurse Burhanpurkars other breaches of the
    standard of care were also capable of grounding the causation analysis.

d.

Conclusion on unreasonable verdict

[78]

Since
    there was a sufficient evidentiary basis for the jurys conclusions, I would
    not give effect to the argument that the verdicts were unreasonable.

2)

The Jury charge

[79]

As
    set out by this court in
Pereira v. Hamilton Township Farmers Mutual Fire
    Insurance Co.
(2006), 209 O.A.C. 127 (C.A.), at para. 51, an appellate
    court reviewing a trial judges charge will not hold the instructions to a
    standard of perfection. Instead, the focus should be on whether the jury would,
    having regard to the charge in its entirety, have properly understood the law.

[80]

Further,
    not all errors necessitate a new trial. The appellant must establish that the
    error produced some substantial wrong or miscarriage of justice:
Courts
    of Justice Act
, R.S.O. 990, c. C.43, s. 134(6). See also
Landolfi v.
    Fargione
(2006), 79 O.R. (3d) 767, at para. 121;
Pereira
, at
    paras. 72-76.

[81]

I
    also note that a failure by counsel to object to a jury charge in a civil
    case, while not dispositive, will tell strongly against an appellants request
    for a new trial based on alleged flaws in the jury charge:
Kerr v. Loblaws
    Inc.
, 2007 ONCA 371, 224 O.A.C. 56, at para. 32.

[82]

The
    appellants challenge the jury charge in three respects.

a.

Improper instructions
    regarding the legal test for causation

[83]

The
    appellants submit that the trial judge failed to explain to the jury the but
    for test and therefore failed to properly set out the law regarding causation.

[84]

The
    proper test for causation, set out in
Clements
, at para. 8, 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.  It
    is clear that the trial judge was well aware of the test and properly
    instructed the jury on it. In his charge the trial judge explicitly set out and
    repeatedly reminded the jury of the but for test. For example, the trial
    judge stated:

The law requires that if the physician did not perform medical
    services within the standard of care for an obstetrician, it must be proven on
    a balance of probabilities that the injuries to Adam Goodwin would not have
    occurred
but for
the action or lack of actions by Doctor Olupona [Emphasis
    added.]

[85]

This
    type of wording was used every time the trial judge instructed the jury with
    respect to its consideration of whether a causal connection had been made out in
    relation to each defendant. This wording was also incorporated into the
    questions the jury was required to answer. Furthermore, when giving his
    instruction on the principle of proximate cause, the trial judge clearly used
    language tantamount to but for: [t]he proximate cause of an injury is that
    cause which produces the injury,
and
without which
the result would not have happened

    (emphasis added).

[86]

In
    my view, therefore, the trial judge did, contrary to the appellants position, properly
    instruct the jury on the but for test.

[87]

I
    would therefore not give effect to this ground of appeal.

b.

Omission
    of material facts in the charge

[88]

The
    appellants also submit that the trial judge failed to reference certain facts
    in his charge to the jury and that this failure amounted to a miscarriage of
    justice. The appellants contend that the following facts, material to the
    jurys consideration of the issues, were omitted from the charge:

a)

Ms. Goodwins
    pregnancy was  high risk;

b)

Dr. Olupona was the
    physician in charge of the delivery of Ms. Goodwins twins;

c)

when a foetus is in breech,
    there are increased risks associated with its delivery;

d)

Dr. Oluponas order
    for the epidural PRN was for Ms. Goodwin to receive the epidural as needed or
    for pain;

e)

although Dr. Brown
    stated that if Dr. Olupona called the hospital, there was nothing for him to
    do, Dr. Olupona did not call the hospital to check on Ms. Goodwin;

f)

Nurse
    MacPhail, the respondents nursing expert, only ever provided nursing care in a
    level III hospital, and not in a level II hospital;

g)

at the time of Ms.
    Goodwins 4:30 p.m. ultrasound, Dr. Olupona did not inform her that Twin B was
    breech; and

h)

in her testimony on
    the nursing standard of care, Ms. MacPhail thought there was a mandatory
    requirement for FHR monitoring after 5:00 p.m., but elsewhere in her testimony
    she indicated that there was a range of acceptable practice for monitoring in
    the 5:00 p.m. timeframe.

[89]

I
    note that the jury instructions do not have to include reference to all of the
    facts and evidence: see
Landolfi
, at para. 120. On my review of the
    charge as a whole, the bulk of the facts upon which the appellants rely in this
    aspect of their appeal were either explicitly or implicitly addressed. The
    remainder were rejected by the trial judge in pre-charge discussions for reasons
    that I would not interfere with.

[90]

Moreover,
    I am not persuaded that any of the facts allegedly omitted were so material
    that their omission resulted in a substantial wrong or miscarriage of justice.

[91]

I
    would therefore reject this argument.

c.

Omission in the charge of the standard of care for nurses and the
    hospital

[92]

The
    appellants submit that the jury charge did not sufficiently outline the
    standard of care applicable to a nurse and hospitals.

[93]

I
    have already dealt with an aspect of this argument in addressing the hospitals
    argument that no evidence was adduced on a hospitals standard of care. To
    repeat, the jury was entitled to determine the hospitals standard of care in
    the absence of expert evidence. I would add the following to respond to this
    ground of appeal.

[94]

A
    further difficulty I have with the appellants submission is that it is
    contrary to the position their trial counsel took in pre-charge discussions.
    Dr. Oluponas trial counsel expressed concern about focusing on the issue of
    Dr. Oluponas standard of care, as opposed to that of the nurses or the
    hospital. The appellants trial counsel disagreed, stating:

Your Honour, there are as it relates to the nurses at Orillia
    Soldiers Memorial  there are probably four to five paragraphs in your standard
    of care section that talks about that.

And first of all your general  the first general paragraph
    about standard of care generally and how it applies to physicians, you then
    confirm that the general principles are also with respect to the nurses. But I
    have counted  four specific paragraphs on either the nurses and/or Orillia
    Soldiers Memorial  But I dont have the same view my friend has in that
    regard. And I dont know what she is suggesting is missing with respect to it.

I think its clear when you read that that the jury will have
    to consider the standard of care of not only each of the physicians[,] each of
    the nurses, and the Orillia Soldiers Memorial Hospital not only in its
    capacity as being vicariously liable but also in its capacity as providing
    training and/or resources. So Im not sure what is missing.

[95]

It
    is trite law that in a civil jury trial, the failure to object will be given
    considerable weight:
Brisco Estate v. Canadian Premier Life Insurance Co.
,
    2012 ONCA 854, 113 O.R. (3d) 161), at para. 70. The appellants trial counsel
    not only failed to object to the charge on this basis, but also actively opposed
    the inclusion of more detail about the standard of care applicable to the
    nurses and the hospital  perhaps in an attempt to encourage the jury to
    concentrate more on Dr. Olupona than on the appellants. In my view, the
    appellants should not be entitled to resile from that position now.

[96]

In
    any case, I am not persuaded that the charge was deficient in terms of
    providing the jury with assistance concerning the standard of care expected of
    the appellants. I refer to the following passage in the charge:

Nurses and a hospital also have duties towards patients to
    exercise the degree of care in all they do for a patient which could be
    reasonably expect[ed] of a normal prudent nurse with the same professional
    qualifications and training as Nurse Burhanpurkar and Nurse Thibedeau. The
    Orillia Soldiers Memorial Hospital is a Level II hospital, and it has a duty to
    its patients to provide the degree of care for a patient that could be
    reasonably expected of a Level II hospital when a woman attends for the
    delivery of twin babies.

[97]

Further,
    after detailing the standard of care for a physician, the trial judge indicated
    that the same concept of duty of care and meeting the standard of care applies
    for [the nurses and the hospital] in their positions as registered nurses and a
    Level II hospital. It would have been unnecessary to repeat the exact same
    instruction twice, substituting the nurses and hospitals names for that of
    the physician.

[98]

One
    can reasonably assume that the jury understood the trial judges instructions.
    The jury, one that clearly took its job seriously, did not ask for any
    additional assistance on any of these issues.

[99]

I
    would not give effect to the argument that the trial judge committed reversible
    error in any aspect of his thorough instructions to the jury.

E.

C
ONCLUSION AND DISPOSITION

[100]

In my opinion,
    based upon the proper instructions the trial judge provided, the jury was able
    to appreciate its duty. The members of the jury worked hard - participating in
    a long trial and tenaciously deliberating for eight days. At the end of the
    trial, the jury acted in accordance with its duty and rendered a verdict that was
    open to it on the evidence. The verdict is entitled to deference.

[101]

I would
    therefore dismiss the appeal.

[102]

The respondents
    are entitled to their costs, which, based on the agreement of counsel, are fixed
    in the amount of $40,000, including disbursements and applicable taxes.

Released:

APR 25 2013                                    Gloria
    Epstein J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree R.A. Blair J.A.

[1]
Although Nurse Thibedeau is listed as an appellant in this appeal, neither side
    contests the jurys conclusion as to her liability. Consequently, in referring
    to appellants I mean only Nurse Burhanpurkar and the hospital.


COURT OF APPEAL FOR ONTARIO

CITATION: Gyimah v. Bank of Nova Scotia, 2013 ONCA 252

DATE: 20130423

DOCKET: C56150

Blair, Juriansz and Tulloch JJ.A.

BETWEEN

Anthony Gyimah

Plaintiff (Appellant)

and

The Bank of Nova Scotia, Scotialine Visa, Mike
    Mckeil and Avin Sharma

Defendants (Respondents)

Anthony Gyimah, in person

Kate Findlay, for the respondents

Heard & released orally: April 9, 2013

On appeal from the summary judgment of Justice Janet
    Wilson of the Superior Court of Justice, dated October 12, 2012.

ENDORSEMENT

[1]

On October 12, 2012, Wilson J. granted summary judgment dismissing Mr.
    Gyimahs claim against the Bank defendants and granting the defendants
    counterclaim in the amount of $18,491.23 together with pre-judgment interest
    and costs.

[2]

In the action, Mr. Gyimah claimed substantial damages against the
    defendants for what he alleges was the wrongful termination of his loan
    facilities  in particular, a line of credit and a Visa card. The defendants
    counter-claimed for the amounts outstanding on the loan facilities at the time
    of cancellation

[3]

Mr. Gyimah appeals from the summary judgment awards, arguing that there
    is a genuine issue for trial both with respect to his claim for damages for
    mental and emotional stress, financial hardship and damage to his credit
    rating, as well as with respect to the amounts owing. The defendants
    cross-appeal against the awards of pre-judgment interest and costs made by the motion
    judge, arguing that the loan facilities contracts entitled them to more.

[4]

We dismiss the appeal in the main action and counter-claim, but allow
    the cross-appeal with respect to interest. In all of the circumstances, we
    would not grant the defendants leave to appeal costs.

[5]

Mr. Gyimah complains about various actions by the Banks
    representatives, and we note that the motion judge took some of these
    considerations into account in her order of costs while properly concluding
    that they could not amount to negligence or breach of contract in the
    circumstances.

[6]

The legal reality is that the Bank defendants have very broad powers
    under the loan facilities contracts to renew, amend or cancel the loan
    facilities. In particular, the Personal Credit Agreement Companion Booklet
    (PCACB) (a document incorporated into the contracts) entitles the Bank
    defendants to require the total balance of the loan to be paid, without prior
    notice or demand where, amongst other things anything else happens that [the
    Bank defendants] believe endangers [the clients] ability to pay or that [the
    Bank defendants] believe endangers the property in any way (PCACB, p. 70). In
    addition, the PCACB provides that the Bank defendants are entitled to cancel
    the agreements if the client [is] not handling [his or her] account in
    accordance with this agreement
or our requirements
 [Emphasis added].

[7]

The defendants received credible information in the form of a credit
    report that Mr. Gyimah posed a high credit risk and, indeed, that other
    financial institutions appeared to hold the same view. They also conducted a
    review that disclosed some history (albeit dated) of uneven payments by Mr.
    Gyimah on their own accounts.

[8]

Under the provisions of the loan facilities contracts, notwithstanding
    that the accounts were in good standing at the time, the Bank defendants were
    entitled to demand updated financial information from Mr. Gyimah (which he at
    least delayed in providing) and, were entitled to cancel the loan facilities.

[9]

We see no error on the part of the motion judge in granting summary
    judgment dismissing his action and accepting the Banks sworn testimony as to
    the amount outstanding.

[10]

In
    our view, however, the motion judge erred in failing to grant pre-judgment
    interest at the rate provided for in the contracts (accepted to be 7.5%) and
    instead imposing the lower rated provided for under the
Courts of Justice
    Act
: see
Bank of America Canada v. Mutual Trust Co.
, [2002]
    S.C.J. No. 44 (S.C.C.) at paras. 45-46. We therefore allow the cross-appeal and
    vary the judgment below to provide for pre-judgment interest at the rate of
    7.5% per annum.

[11]

With
    respect to the cost cross-appeal, we decline in the circumstances to grant
    leave to appeal.

[12]

The
    loan facilities contracts entitle the Bank defendants to recover their
    indemnity costs. In these circumstances, we interpret that to mean substantial
    indemnity costs. Accordingly, the Bank defendants are entitled to their costs
    of the appeal and cross-appeal fixed in the amount of $10,342.91 all inclusive.

R.A. Blair J.A.

R.G. Juriansz J.A.

M.H. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Haliburton
    (County) v. Gillespie, 2013 ONCA 275

DATE: 20130429

DOCKET: C54563

Goudge, Sharpe and Gillese JJ.A.

BETWEEN

The Corporation of the County of
    Haliburton

Respondent

and

David L. Gillespie

Appellant

Tyler Hodgson, for the appellant

Neil Abbott and Sirpal Randhawa, for the respondent

Heard: November 16, 2012

On appeal from the judgment of Justice Lorne E. Chester
    of the Ontario Court of Justice, dated September 8, 2011, allowing an appeal
    from the judgment of Justice of the Peace D. Jackson, dated January 6, 2011.

COSTS ENDORSEMENTS

[1]

We have received written submission from the parties as to costs. The
    appellant resists the respondents request for costs asks that we award it
    costs of this appeal.

[2]

We have jurisdiction to award costs pursuant to the
Provincial
    Offences Act
, R.S.O., c P.33, s. 139(3). However, it is our view that this
    is not a case for costs for two reasons.

[3]

First, although there is jurisdiction to award costs, the general rule
    is that costs are not awarded in provincial offence appeals:
R .v.
    Felderhof
, (2003), 68 O.R. (3d) 481 at para. 100. While the respondent
    municipality is not the Crown, the respondent stood in the shoes of the Crown
    to represent the public interest in the enforcement of the statute at issue on
    this appeal.

[4]

Second, this appeal raised an important and novel issue of public
    importance as to the interpretation of a statute and the meaning of occupier,
    described by MacPherson J.A. as being of importance throughout the province
    when granting leave to appeal.

[5]

Accordingly, the respondents request for costs of the appeal is
    dismissed.

S.T. Goudge J.A.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hammerschmidt v. Hammerschmidt, 2013
    ONCA 227

DATE: 20130410

DOCKET: C56723

Blair, Juriansz and Tulloch JJ.A.

BETWEEN

Alon Hammerschmidt

Applicant (Respondent in Appeal)

and

Faiga Sara Hammerschmidt (Cole)

Respondent (Appellant in Appeal)

Kenneth A. Cole and Allison M Kotler, for the appellant

Jeffery Wilson and Chelsea Hooper for the respondent

Heard and released orally: April 8, 2013

On appeal from the order of Justice Emile R. Kruzick of
    the Superior Court of Justice, dated March 1, 2013.

ENDORSEMENT

[1]

The appellant mother seeks to set aside the order of Kruzick J. dated
    March 1, 2013, directing the return of the appellants and respondents child
    to Australia, subject to certain conditions protecting the appellant and the
    child, pursuant to the Hague Convention.

[2]

The application judge found that the child was habitually resident in
    Australia at the time she was returned with the appellant to Ontario, on the
    basis that the parties had formed a settled intention to move to and live in
    Australia for an appreciable period of time: see
Korutowska-Wooff v.
    Wooff
, [2004] O.J. No. 3256 (C.A.) and
Chan v. Chow
2001
    CarswellBCCA 276, at paras. 31-33. He also rejected the argument that returning
    the child to Australia would pose a grave risk of harm to her.

[3]

We see no basis to interfere with these findings.

[4]

In a robust and skilful argument on behalf of the mother, Mr. Cole
    submits that the application judges finding of habitual residence was
    unreasonable and failed to give effect to the many objective factors
    favouring a finding of habitual residence in Ontario. In addition, he points to
    two pieces of evidence that he says the application judge failed to consider,
    namely, the evidence of one deponent that she had overheard the father say to
    the mother that he was willing to give going to Australia a try, and evidence
    that the parties had left some of their furniture in Ontario with the appellants
    parents (in addition, they had sent a container full of their furniture to
    Australia by ship).

[5]

An appeal to this court in a Hague Convention is not a rehearing or a
    trial
de novo
review of the evidence, and the application judges
    findings are entitled to considerable deference. They will not be interfered
    with  notwithstanding the hearing is based on affidavit, not
viva voce,
evidence  unless they are unreasonable in the sense that they amount to
    palpable and overriding error or manifest error or clear error: see
Korutowska-Wooff
    v. Wooff, supra,
and
Equity Waste Management of Canada v. Halton Hills
,
    [1997] O.J. No. .3921 (C.A.) at para. 45.

[6]

We see no such error here. The application judge realized this was a
    difficult and close case and approached it accordingly. While there was
    evidence supporting the appellants position, there was also evidence
    supporting the finding of habitual residence in Australia. What weight is to be
    given to the evidence is for the application judge to determine, subject to the
    foregoing criteria and error in law.

[7]

The application judge need not comment on every piece of evidence. The
    two omissions identified by the appellant do not undermine the application
    judges analysis or conclusion, in our view.

[8]

Nor would we interfere with the application judges finding that
    returning the child to Australia would not pose a grave risk that [her] return
    would expose the child to physical or psychological harm or otherwise place the
    child in an intolerable situation as contemplated by s. 13(b) of the Hague
    Convention and the jurisprudence relating to it.

[9]

We see no material difference between the way in which the application
    judge articulated the test and the test as set out in such cases as
Thompson
    v. Thompson
, [1994] 3 S.C.R. 551. The threshold is very high. It was open
    to the application judge to conclude on the record, as he did, that the test
    had not been met.

[10]

Accordingly,
    the appeal is dismissed. Costs to the respondent, as agreed, in the amount of
    $12,500 inclusive of disbursements and HST.

R.A. Blair J.A.

R.G. Juriansz J.A.

M.H. Tulloch J.A.


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COURT OF APPEAL FOR ONTARIO

CITATION: Hassan
    (Re), 2013 ONCA 236

DATE: 20130415

DOCKET: C56229

Doherty, MacPherson and Cronk JJ.A.

IN THE MATTER OF:  OMAR HASSAN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Omar Hassan, appearing in person

Joseph Di Luca,
amicus curiae

Michael Medeiros, for the respondent

Heard: April 11, 2013

On appeal against the disposition of the Ontario Review
    Board dated July 4, 2012.

ENDORSEMENT

[1]

On May 24, 2011, the appellant was found not criminally responsible
    (NCR) on account of mental disorder in respect of three counts of disarming a
    police officer and one count each of assault causing bodily harm, aggravated
    assault, and failure to comply with probation.  As a result, the appellant came
    under the jurisdiction of the Ontario Review Board (the ORB).

[2]

The appellant was the subject of a disposition hearing before the ORB on
    June 20, 2012.  The appellant and the Centre for Addiction and Mental Health
    (the hospital) sought a hybrid disposition that would detain the appellant in
    the secure unit but grant discretion to the hospital to transfer him to the
    general forensic unit if appropriate.  The Crown sought a disposition detaining
    the appellant in the secure forensic unit.

[3]

In a disposition dated July 4, 2012, with written reasons released on
    August 21, 2012, the ORB found that the appellant was a significant threat to
    public safety and ordered him detained on the secure unit.  The appellant was
    granted the following privileges  attend within or outside the hospital for
    necessary medical, dental, legal or compassionate purposes; hospital and
    grounds privileges, escorted by staff or a person approved by the person in
    charge of the hospital; hospital and grounds privileges, indirectly supervised;
    and to enter the community, accompanied by staff or a person approved by the
    person in charge of the hospital.

[4]

The appellant appeals this disposition.  He now seeks a transfer to the
    general unit.

[5]

Amicus curiae
has been appointed to assist.
Amicus
submits that the ORB erred in refusing to grant the hybrid order sought by the
    appellant and the hospital.  This error, asserts
amicus
, flowed from
    findings not supported by the evidence and from a failure to properly apply the
    least onerous and least restrictive test.

[6]

Amicus
contends that the ORB refused to make a hybrid
    disposition primarily based on its findings that the appellant does not respond
    to incentive-based motivation because of his personality issues and that the
    hybrid order would create a false expectation on the part of the appellant.
Amicus
submits that neither of these findings is supported by the record.

[7]

We do not accept this submission.  In our view, these components of the
    ORBs reasons had a solid evidentiary foundation anchored in the hospitals
    report and Dr. Woodsides testimony.  Some of the appellants antisocial
    personality traits, which the ORB described as an ingrained pattern of
    continuing to engage in very concerning behaviours with little or no regard to
    consequences of his behaviour strongly suggested that the appellant would not
    make sufficient progress to justify a transfer to the general forensic unit
    prior to the next annual review.

[8]

Nor do we think that the ORB failed to apply the least onerous and least
    restrictive test in crafting its disposition.  There was no issue before the
    ORB, and there is none before this court, about the appellants continuing risk
    to public safety.  The appellants three attacks on police officers, the
    injuries (some quite serious) to those officers, and his continuing behaviour
    problems in the hospital combine to make the ORBs disposition of detention in
    the secure unit eminently reasonable.

[9]

We note that the specialized expertise of the ORB attracts considerable
    deference to their dispositions when they are reviewed for reasonableness: see
Winko
    v. British Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625
    at para. 61.  In our view, this deference is particularly appropriate in a
    context, as here, where there is very little difference between the actual
    disposition (detention in a secure unit) and the competing disposition
    considered by the ORB (detention in a secure unit with discretion granted to
    the hospital to transfer the patient to the general unit if appropriate).  It
    is for this reason that it is not surprising that in some recent cases this
    court has declined to interfere with ORB decisions that rejected so-called
    hybrid orders: see, for example,
Re Hassan
, 2011 ONCA 561, at para.
    29; and
Re Kelly
, 2012 ONCA 265, at para. 3.

[10]

The
    appeal is dismissed.

Doherty
    J.A.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kay v. Caverson, 2013 ONCA 220

DATE: 20130405

DOCKET: C54646

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Diane Kay

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Gerard Caverson, Guliana
    DOrazio Caverson, also known as Julie Caverson
, The Corporation of the
    City of Mississauga, and M & I Contracting Inc.

Defendants (Respondents/

Appellants by way
    of cross-appeal
)

and

Namroud
    Khachi and Architectural Technology Services

Third Parties

James A. Kay, for the
    appellant

Brian E. Lucas,
    for the respondents Gerard Caverson and Guliana DOrazio Caverson, also known
    as Julie Caverson

Scott E. Hamilton, for the
    respondent The Corporation of the City of Mississauga

Julian Binavince, for the
    respondent M & I Contracting Inc.

No one appearing for the
    third parties

Heard and released
    orally: April 3, 2013

On appeal from the judgment of Justice Peter A. Daley of
    the Superior Court of Justice, dated August 11, 2011, with reasons reported at
    2011 ONSC 4528.

ENDORSEMENT

[1]

The appellant appeals the dismissal of her claim and the award of costs
    to the respondents. The Caverson respondents seek leave to cross-appeal on the
    issue of costs and, if leave is granted, cross-appeal the award of costs.

[2]

The claim arose out of an alleged increase in flow and collection of
    water from the Caversons property onto the appellants property. This water is
    said to have caused extensive damage to the appellants home.

[3]

The appellant raises several grounds of appeal from the judgment
    dismissing her claims. These can be summarized as follows:

1.

the trial judge
    erred in his credibility findings;

2.

the trial judge
    was biased and deprived the appellant of a full and fair hearing;

3.

the trial judge
    misapprehended the evidence, erred in his analysis of the law and erred in the
    application of the law to the facts; and

4.

the trial judge
    erred in his award of costs.

[4]

In our view, the appeal should be dismissed. In his reasons, the trial
    judge carried out a thorough review of the evidence, and his factual findings
    including an adverse finding as to the appellants credibility  are well
    supported in the record.

[5]

The appellant submits that the trial judge ought not to have rejected
    the appellants evidence. Specifically, she argues that the trial judge erred
    in his interpretation of the Supreme Court of Canadas decision in
British
    Columbia (Attorney General) v. Malik
, 2011 SCC 18, [2011] 1 S.C.R. 657. We
    would not give effect to this submission. Assuming (without deciding) that the
    trial judge erred in his application of the principles in
Malik,
it is
    clear from his reasons that he would have rejected the appellants evidence
    even without referring to the negative credibility findings made by Murray J.
    in another action involving the appellant and Julie Caverson. The trial judges
    reasons show that he found the appellants testimony to be inaccurate,
    inconsistent with the documentary evidence and exaggerated.

[6]

We also see no merit in the suggestion that the trial judge was biased.
    The transcript references cited by the appellant by and large show nothing more
    than the trial judge curtailing the frequent, and largely inappropriate,
    interruptions of the appellant. We further see nothing wrong with the way the
    trial judge dealt with the improper letter sent by the appellant to the trial
    judge during the course of the trial. Nothing in the record before us suggests
    that the trial judge conducted himself inappropriately or in such a way as to
    give rise to a reasonable apprehension of bias towards the appellant or her
    trial lawyer.

[7]

We moreover see no merit in the other grounds of appeal. In any event,
    because the appellants case hinged almost exclusively on the appellants
    testimony, once the trial judge rejected her testimony, the claim could not
    succeed.

[8]

As to the appellants appeal of the cost award, costs normally follow
    the result and the trial judges determination as to costs and the proper
    amount of costs is entitled to deference. The appellant has not demonstrated
    any error in that regard.

[9]

Turning to the Caversons cross-appeal, they submit that the trial judge
    erred in failing to award costs on a substantial indemnity scale, either
    pursuant to the factors set out in rule 57.01(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, or because of the Rule 49 offer to
    settle made by the Caversons prior to trial. Again, the trial judges decision
    on costs is entitled to deference. The trial judges reasons on costs are
    detailed and show that he considered the positions of the parties and all of
    the relevant factors and evidence, including the offer to settle. As stated by
    the trial judge, the decision not to award substantial indemnity costs was a
    close call. In our view, it was his to make and we see no basis on which to
    interfere.

[10]

For
    these reasons, the appeal is dismissed and the application for leave to cross-appeal
    the cost award is dismissed.

[11]

With
    respect to the costs of the appeal, and having regard to the refusal to grant
    leave to cross-appeal the cost award below, it is our view that an appropriate
    award of costs to the Caversons is $13,000 inclusive of disbursements and relevant
    taxes. In respect of the respondent the City of Mississauga, the cost award is in
    the amount of $9,000 inclusive of disbursements and relevant taxes; in the case
    of the respondent M & I Contracting Inc., the cost award is in the amount
    of $8,000 inclusive of disbursements and relevant taxes.

D. Doherty J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Khan Resources Inc. v. Atomredmetzoloto
    JSC, 2013 ONCA 189

DATE: 20130402

DOCKET: C55360

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

Khan Resources Inc., Khan Resources LLC, Cauc
    Holding Company Limited, Central Asian Uranium Company LLC, Khan Resources B.V.
    and Khan Resources Bermuda Ltd.

Plaintiffs/Appellants

and

Atomredmetzoloto JSC and JSC Priargunsky
    Industrial Mining and Chemical Union

Defendants/Respondents

James Doris and Derek Ricci, for the appellants

Robert Frank and Erik Penz, for the respondents

Heard: September 11, 2012

On appeal from the order of Justice Brian P. OMarra of
    the Superior Court of Justice, dated March 9, 2012, with reasons reported at
    2012 ONSC 1522, 110 O.R. (3d) 298, allowing an appeal from the decision of
    Master Andrew A. Graham dated October 28, 2011, with reasons reported at 2011
    ONSC 5465.

Tulloch
    J.A.:

OVERVIEW

[1]

The appellants seek to commence proceedings in Ontario against the
    Russian respondents. They tried to serve the respondents in Russia in
    accordance with the
Hague Convention on the Service Abroad of Judicial and
    Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, Can.
    T.S. 1989 No. 2
(entered into force 1 May 1989) (the Convention), but
    the Russian government refused service on grounds of sovereignty and national
    security.

[2]

Rather than pursuing an appeal in Russia, as they were entitled to do,
    the appellants brought a motion in Ontario to dispense with or validate service
    under rules 16.04 and 16.08 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. The Master allowed the motion. On appeal, the Superior Court
    judge set aside the Masters order and concluded that the Convention,
    incorporated into Ontario law through rule 17.05(3), is a complete code for
    service on parties in contracting states. The appellants now appeal to this
    court seeking to restore the Masters order.

[3]

For the reasons that follow, in my view the Superior Court judge was
    correct to hold that rule 17.05(3) is a complete code for service on foreign
    defendants in states that are parties to the Convention. I would dismiss the
    appeal.

BACKGROUND

(1)

The Convention

[4]

Canada became a signatory to the Convention in 1988. The preamble to the
    Convention sets out its dual purposes: (i) to create appropriate means to
    ensure that judicial and extrajudicial documents to be served abroad shall be
    brought to the notice of the addressee in sufficient time; and (ii) to
    improve the organisation of mutual judicial assistance for that purpose by
    simplifying and expediting the procedure.

[5]

Article 1 of the Convention provides:

The present Convention
shall apply in all cases, in civil
    or commercial matters
, where there is occasion to transmit a judicial or
    extrajudicial document for service abroad. [Emphasis added.]

[6]

Under the Convention, each contracting state designates a central
    authority where requests for service are directed. When a request is received,
    the central authority in the requesting state arranges for service according to
    the laws of that jurisdiction and issues a certificate of confirmation once
    service has been effected.

[7]

The central authority in a contracting state is obligated to follow this
    procedure subject to one exception: Article 13 of the Convention authorizes a
    state to refuse to effect service only if it deems that compliance would
    infringe its sovereignty or security. Where Article 13 is invoked, the central
    authority shall  promptly inform the applicant and state the reasons for the
    refusal.

[8]

Ontario incorporated the relevant articles of the Convention through
    rule 17.05(3), which provides:

An originating process or other document to be served outside
    Ontario in a contracting state shall be served:

(a)   through the central authority in the contracting state;
    or

(b) in a manner that is permitted by Article 10 of the
    Convention and that would be permitted by these rules if the document were
    being served in Ontario.

[9]

The parties agree that rule 17.05(3)(b) does not apply in this case.

(2)

The dispute between
    Khan Resources and ARMZ

[10]

The
    appellant Khan Resources Inc. (Khan) is an Ontario corporation engaged in uranium
    exploration and development in Mongolia. The other appellants are either direct
    or indirect subsidiaries of Khan. The respondent Atomredmetzoloto JSC (ARMZ)
    is a Russian company in which Rosatom, the Russian State Atomic Energy
    Corporation, has a controlling interest. The other respondent is a subsidiary
    of ARMZ.

[11]

Khan,
    ARMZ and other companies embarked on a joint venture to develop a uranium
    mining property in Mongolia known as the Dornod property. Khan had a 58% share in
    the joint venture and ARMZ had a 21% share through their respective subsidiaries.

[12]

In
    August 2010, the appellants commenced an action against the respondents in
    Ontario. They allege that the Russian government, acting through ARMZ, sought to
    deprive them of their interest in the Dornod property by: (i) entering into a
    new joint venture with the Mongolian government to develop the same property; (ii)
    attempting a hostile takeover bid of Khan; (iii) attempting to eliminate Khans
    mining licences; and (iv) issuing misleading press releases regarding Khans
    licences.

[13]

Pursuant
    to rule 17.05(3)(a), the appellants tried to serve ARMZ in Russia.
In December 2010, the Russian
    Ministry of Justice, the designated central authority, informed the appellants
    that it had refused service of their statement of claim, citing Article 13 of
    the Convention.

[14]

The
    Russian government did not provide further reasons for its refusal.  The
    appellants did not appeal the decision in the Moscow Arbitrazh Court because their
    counsel in Russia advised them that such efforts would be costly and time-consuming,
    and that the result may be driven by political considerations.  The appellants
    also opted not to pursue any avenue of relief through Article 14 of the
    Convention, which provides that [d]ifficulties which may arise in connection
    with the transmission of judicial documents for service shall be settled
    through diplomatic channels.

[15]

In
    September 2011, the appellants brought a motion in the Ontario Superior Court
    for an order substituting or dispensing with service pursuant to rule 16.04 or
    validating service pursuant to rule 16.08. Those rules provide:

16.04(1)
Where

it appears to the court that

it is impractical for any reason to effect prompt service of an originating
    process
or any other document required to be served personally or by an
    alternative to personal service under these rules, the court may make an order
    for substituted service or, where necessary in the interest of justice, may
    dispense with service.

16.08
Where
    a document has been served in a manner other than one authorized by these rules
or an order, the court may make an order validating the service where the court
    is satisfied that,

(a)
the document came to the notice of

the
    person to be served
; or

(b)   the document was served in such a manner that it would
    have come to the notice of the person to be served, except for the persons own
    attempts to evade service. [Emphasis added.]

DECISIONS BELOW

(3)

The Masters decision

[16]

In
    October 2011, the Master granted the appellants motion to validate service of
    their statement of claim pursuant to rule 16.08.

[17]

The
    Master held that rule 17.05(3) did not oust the jurisdiction of Ontario courts
    to substitute, dispense with or validate service under rules 16.04 and 16.08. He
    explained, at para. 46: The purpose of the Convention, similar to that of Rule
    16, is to facilitate the service of legal documents outside their jurisdiction
    of origin, not to enable foreign states to immunize their own subsidiary
    corporations by arbitrarily refusing to effect such service.

[18]

The
    Master then applied rule 16.08 and found that the statement of claim had come
    to the respondents attention either through the appellants 2010 press release
    announcing the litigation, their public disclosure documents from 2010 and 2011
    alleging ARMZs wrongdoing, or their attempt to serve the document through the central
    authority. The Master exercised his discretion to validate service.

(4)

The Superior Court
    judges decision

[19]

Without attorning to the jurisdiction of the
    Ontario courts, the respondents appealed to a judge of the Superior Court to set
    aside the Masters order. In March 2012, the judge allowed the appeal.

[20]

In
    his reasons, the Superior Court judge addressed three discrete issues.  First,
    he held that all of the relevant articles of the Convention, including Article
    13, have been incorporated into domestic law through the enactment of rule
    17.05(3). Second, he held that the Convention applied to the case before him
    and therefore its procedure governed service of the claim. Finally, he held
    that the combined effect of rule 17.05(3) and Article 1 of the Convention is
    that the Convention applied to the exclusion of domestic law.

[21]

The
    Superior Court judge then considered his interpretation in light of the dual purposes
    of the Convention. He found the first purpose, ensuring that documents served
    abroad are brought to the notice of the addressee, was not met if states were
    able to use Article 13 to prevent service.  The second purpose, simplifying and
    expediting the procedure, was met, however, through the creation of an
    international standard for service abroad free from divergent domestic laws.

[22]

To
    resolve this discrepancy the Superior Court judge considered several sources
    and agreements between Convention parties, including the
Practical Handbook
    on the Operation of the Hague Service Convention
, 3rd ed. (Montreal:
    Wilson & Lafleur, 2006), published by the Permanent Bureau of the Hague
    Conference on Private International Law. He accepted the Handbooks conclusion
    that the Convention is of exclusive character. Therefore, the Convention
    operates exclusively in the sense that when it applies, it specifies the only
    service channels available to parties.

[23]

The
    Superior Court judge concluded that courts in Ontario have no discretion to substitute,
    dispense with, or validate service pursuant to rules 16.04 or 16.08 where the
    Convention applies.

[24]

Alternatively,
    the Superior Court judge held that if he had found that the Master had discretion
    to substitute, dispense with or validate service pursuant to the rules, he
    would have still allowed the appeal. In his view the court could not permit the
    appellants to circumvent the Convention simply because complying with it would
    be costly or tedious.

ISSUE ON APPEAL

[25]

The
    appellants argue that the Superior Court judge erred by holding that the
    Convention, through rule 17.05(3), is a complete code for service in a
    contracting state. They submit that rule 17.05(3) provides the
prima facie
means of service in a contracting state, but it does not oust the courts
    discretion under rules 16.04 and 16.08 to substitute, dispense with or validate
    service in appropriate circumstances. Rather rule 17.05(3) should be read
    purposively to advance the Conventions objective, which is to bring notice of
    a legal proceeding to a foreign defendants attention.

ANALYSIS

[26]

I
    cannot accept the appellants submissions. There are several reasons why.

[27]

First,
    the appellants cast the purpose of the Convention too narrowly. As its preamble
    reflects, the Convention has two purposes. One is undoubtedly to give a
    defendant in another jurisdiction notice of a legal proceeding. But the other
    purpose is to improve the system of giving notice, by establishing a uniform
    procedure in all contracting states. The appellants interpretation of rule
    17.05(3) undermines the latter objective.

[28]

Second,
    the appellants interpretation of rule 17.05(3) is not supported by the
    provenance of the rule itself. Rule 17.05(3) was added to the
Rules of
    Civil Procedure
in 1989, the year Canadas accession to the Convention
    took effect.

[29]

Prior
    to 1989, the rules provided that originating documents could be served outside
    Ontario in the same manner as provided for by the rules of service in Ontario.
    Then-rule 17.05(1) stated:

An originating process or other document to be served outside
    Ontario may be served in the manner provided by these rules for service in
    Ontario, or in the manner prescribed by the law of the jurisdiction where
    service is made if that manner of service could reasonably be expected to come
    to the notice of the person served.

[30]

This
    rule was amended when rule 17.05(3) was added. The rule, now numbered 17.05(2),
    reads:

An originating process or other document to be served outside
    Ontario
in a jurisdiction that is not a contracting state
may
be served in the manner provided by these
    rules for service in Ontario, or in the manner provided by the law of the
    jurisdiction where service is made, if service made in that manner could
    reasonably be expected to come to the notice of the person to be served. [Emphasis
    added.]

[31]

To
    repeat, rule 17.05(3) states:

(3)
An originating process or other document to
    be served outside Ontario in a contracting state
shall
be served
,

(a)
through the central authority in the contracting
    state
; or

(b)   in a manner that is permitted by Article 10 of the
    Convention and that would be permitted by these rules if the document were
    being served in Ontario. [Emphasis added.]

[32]

The
    mandatory language of rule 17.05(3) regarding contracting states stands in
    contrast to the permissive language of rule 17.05(2) regarding non-contracting
    states. Further, the old rule 17.05(1), which permitted service outside Ontario
    in the manner provided by the Ontario rules or by the rules of the other
    jurisdiction, stands in contrast to the current rule 17.05(2), which permits
    such service only in jurisdictions that are not contracting states under the
    Convention. The manner provided by these rules for service in Ontario
    referenced in rule 17.05(2) obviously includes the Rule 16 provisions for
    substituted service, validated service and dispensing with service. Rule
    17.05(3) contains no such reference. The clear implication is that rule
    17.05(3) is intended to provide a complete code for service in contracting
    states.

[33]

Third,
    interpreting rule 17.05(3) as a complete code for service is consistent with
    the principle that domestic law should be read, where possible, to comply with
    Canadas international legal obligations. In
Bouzari v. Iran
(2004),
    71 O.R. (3d) 675 (C.A.), Goudge J.A. explained, at para. 64:

Where Canada has undertaken treaty obligations, it is bound by
    them as a matter of conventional international law. Parliament is then presumed
    to legislate consistently with those obligations.
Thus, so far as possible,
    courts should interpret domestic legislation consistently with these treaty
    obligations
. [Emphasis added; citation omitted.]

[34]

See
    also
R. v. Hape
, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 53-54.

[35]

In
Bouzari
, Goudge J.A. went on to state the key exception to this rule,
    at para. 66: [W]hether Canadas obligations arise pursuant to treaty or to
    customary international law, it is open to Canada to legislate contrary to
    them.  Such legislation would determine Canadas domestic law although it would
    put Canada in breach of its international obligations. See also J.H. Currie,
Public
    International Law
, 2nd ed. (Toronto: Irwin Law, 2008), at pp. 241-243,
    where the author explains that this principle applies to laws passed by
    provincial legislatures as well as by Parliament.

[36]

The
    appellants submit that Ontarios rule 17.05(3) does not incorporate the whole
    of the Convention and does not require that the Convention apply exclusively.
    They submit that Ontario did, in fact, explicitly legislate against Canadas
    treaty obligations under the Convention.

[37]

In
    support of this argument, the appellants contrast rule 17.05(3) of Ontarios
Rules
    of Civil Procedure
with rule 137(2) of the
Federal Court Rules
,
    S.O.R./98-106, which they say fully enacts the Convention. That rule
    provides:

Where service is to be effected in a contracting state to the
    Hague Convention, service shall be as provided by the Convention.

[38]

I
    reject this submission. I see no meaningful difference in the wording of the
    Ontario rule and the Federal Court rule.

[39]

Fourth,
    my interpretation is also consistent with the guidance provided in the
Practical
    Handbook
the Superior Court judge consulted in the decision under appeal.
    At para. 44, the
Handbook
instructs:

[T]he Conventions exclusive nature is now
undisputed
. Thus, if under the law of the forum
    a judicial or extrajudicial document is to be
transmitted abroad
for
    service, the Convention applies and it provides the relevant catalogue of
    possible means of service abroad. In this sense, the Convention is exclusive.
    [Emphasis in original.]

[40]

See
    also
Volkswagenwerk Aktiengesellschaft v. Schlunk
, 486 US 694 (1988),
    where OConnor J. explained, at p. 705: [C]ompliance with the Convention is
    mandatory in all cases to which it applies.

[41]

The
    notion of the Conventions exclusive character was recently affirmed by the
    Alberta Court of Appeal in
Metcalfe v. Yamaha Motor Powered Products Co.
,
    2012 ABCA 240, 536 A.R. 67.

[42]

Rule
    11.26(1)(b) of the Alberta
Rules of Court
, AR 124/2010, provides that
    unless the Court orders otherwise, a document served outside Alberta must be
    served in accordance with the Convention. Rule 11.27 provides that on
    application, the Court may make an order validating service of a document
    served outside Alberta in a manner that is not specified by the rules if the
    Court is satisfied that the method of service used brought or was likely to have
    brought the document to the attention of the person to be served
.

[43]

In
Metcalfe
, the Alberta plaintiffs obtained an order for leave to serve
ex
    juris
a copy of a statement of claim on Japanese defendants pursuant to
    the Convention. The central authority in Japan advised that it would take
    several months to effect service, so the plaintiffs acting through a Japanese
    law firm asked the defendants to accept service and dispense with the formality
    of complying with the Convention. The defendants refused. In due course the
    defendants applied in the Alberta court for an order setting aside the
    purported service
ex juris
, and the plaintiffs brought a competing
    application to validate service.

[44]

The
    chambers judge allowed the plaintiffs application. He held that service
ex
    juris
does not require strict compliance with the Convention, and observed
    that rule 11.27 gives the court discretion to validate service outside Alberta
    even where the service is not effected according to the
Rules.
He
    concluded that the defendants had been properly served and so he validated the
    service.

[45]

The
    Alberta Court of Appeal set aside the chambers judges decision on the primary
    ground that the original order granting the plaintiffs leave to serve
ex
    juris
was premised on service pursuant to the Hague Convention. Since
    the purported service did not comply with the Convention, it did not comply
    with the order and was invalid.

[46]

However,
    a majority of the court went further and concluded that the chambers judge had
    no discretion to validate service under rule 11.27.
[1]
McDonald J.A. explained, at para. 48: In order to conform to international
    law, rule 11.27 should not be interpreted so as to circumvent the methods of
    service provided in the Hague Convention unless done so in clear and unequivocal
    language. Such clear and unequivocal language does not appear in rule 11.27.

[47]

Reflecting
    on the dual purposes of the Convention, and especially the goal of establishing
    an international standard for service, McDonald J.A. continued, at para. 50:

Allowing courts to validate service which fails to comply with
    the international standard would undermine that purpose, as the Hague
    Convention would no longer be a comprehensive authority for service abroad
    involving the signatories to that Hague Convention. Canadian law is presumed to
    comply with that purpose. Therefore, rule 11.27 should not be used to avoid the
    international standard created by the Hague Convention. There are many other
    nations that are not signatories to the Hague Convention and rule 11.27
    undoubtedly applies to service situations within those nations.

[48]

On
    its face, Albertas rule 11.27 appears explicitly to grant the type of
    discretion that the appellants urge us to read into the Ontario rules. The
    Alberta Court of Appeal insisted that rule 11.27 be narrowly construed to
    conform to Canadas treaty obligations and to uphold the principle of
    exclusivity.
A fortiori
, rule 17.05(3) should be interpreted that way,
    as well.

[49]

Finally,
    my conclusion that rule 17.05(3) should be regarded as a complete code for
    service in contracting states is strengthened by three earlier cases in which
    plaintiffs in Ontario sought substituted or validated service, or to dispense
    with service altogether, rather than comply with the Convention. All three
    cases stand for the same proposition: where service must be effected through
    the Convention, a plaintiff cannot circumvent this requirement even if the
    defendant has actual notice of service.

[50]

In
Dofasco Inc. v. Ucar Carbon Canada Inc.
, (1998), 27 C.P.C. (4th) 342 (Ont.
    Gen. Div.), the plaintiff sought to effect substituted service on a Japanese
    corporation through its U.S. subsidiary because, it claimed, going through the
    central authority in Japan would take too long. Without deciding whether he had
    the discretion to substitute service if the plaintiff had tried and failed to
    serve in accordance with the Convention, Campbell J. refused the motion. He
    explained, at p. 344: [I]t would appear that rule 17.05 is now a code for
    matters relating to service abroad in Convention states. I agree with the
    Master that it is necessary for a plaintiff to comply with the terms of the
    Convention for service abroad and this has not been done.

[51]

Similarly,
    in
Samina North America Inc. v. H3 Environmental II LLC
, 2004 CanLII
    65382, [2004] O.J. No. 6229 (S.C.), affd on other grounds [2005] O.J. No. 4644
    (C.A.), the plaintiffs did not serve the American defendants through the
    applicable central authority in accordance with the Convention. The plaintiffs
    did not argue that it was impractical to effect service in this manner; rather,
    they simply requested validated service because the defendants had actual notice
    of the claim. Echlin J. refused, holding that mere notice of an originating
    process is not sufficient where service must be effected pursuant to the
    Convention. If notice were the only objective, then substituted or validated
    service could be ordered whenever foreign defendants in a contracting state
    learned of the proceeding against them.

[52]

He
    explained, at para. 4:

[Counsel for the applicant] urged that I validate the service
    pursuant to Rule 16.08. I cannot do so. Even though the Statement of Claim may
    have come to the notice of [the defendants], that is not the test.
To
    correct such irregularity would undermine the objectives of the Hague
    Convention
and encroach upon the sovereignty of the United States. There
    is a difference in treatment between inter-provincial and international
    service. [Emphasis added; citation omitted.]

[53]

In
Campeau v. Campeau
, 2004 CanLII 42942, [2004] O.J. No. 4788 (S.C.) the
    court held that the plaintiff could not serve the defendant, a resident of
    Austria, with a statement of claim drafted in English. In attempting to do so,
    the plaintiff was acting contrary to the Convention which requires translation
    into the official language of the state addressed. Even though there was
    evidence that the defendant had the ability to communicate in English, the
    court concluded that the claim must nevertheless be served in accordance with
    the Convention.

[54]

One
    question remains: if the appellants had in fact pursued all possible remedies
    under the Convention and were still unable to effect service, would they then
    be permitted to move to validate or dispense with service?

[55]

This
    question was answered in the affirmative in
Zhang v. Jiang
(2006), 82
    O.R. (3d) 306 (S.C. (Master)). The plaintiffs in
Zhang
were members of
    the Falun Gong spiritual movement who sought to sue top officials in the
    Chinese Communist Party for alleged persecution. The plaintiffs attempted to
    serve the defendants through Chinas central authority, but the request was
    refused pursuant to Article 13 with no mechanism to appeal. The plaintiffs then
    tried to serve the statement of claim under the
State Immunity Act
,
    R.S.C. 1985, c. S-18, but Canadas Department of Foreign Affairs took the
    position that the
Act
did not apply. The plaintiffs were advised that
    there was no appeal or judicial review of that decision, either.

[56]

In
    these circumstances,

Master Glustein granted the plaintiffs motion to
    dispense with service under rule 16.04. He explained, at para. 19: The
    evidence is compelling that the plaintiffs have taken all reasonable steps to
    serve the defendants... The plaintiffs have exhausted all means to serve the
    defendants, and no other means are available. He distinguished
Dofasco
and
Campeau
on their facts and concluded that in this case, the interests
    of justice favoured dispensing with service.

[57]

The
    respondents argue that Master Glusteins ruling in
Zhang
is no longer
    good law in light of the Superior Court judges decision in the case at bar.
    That was Perell J.s conclusion in
Gray v. SNC-Lavalin Group Inc.
,
    2012 ONSC 3735, where he stated, at para. 39, that
Zhang
should be
    treated as overturned.

[58]

We
    do not have to decide whether
Zhang
is correctly decided, and even if
    it is correctly decided, in my view
Zhang
is distinguishable from the
    case at bar in two respects. First, the plaintiffs in that case had exhausted all
    avenues available under the Convention before seeking alternative methods of
    service. Second, their claim sought to vindicate the basic human rights of the
    Falun Gong and to expose torture and other crimes against humanity allegedly
    perpetrated by the defendants. In these circumstances, the Master in
Zhang
essentially recognized an access to justice exception to the otherwise prevailing
    rule that the Convention is exclusive.

[59]

Here,
    the appellants rely on
Zhang
and argue that the interests of justice
    favour dispensing with or validating service in light of the time, expense and
    uncertain outcome of an appeal from the Article 13 refusal in Russia. I disagree.
    In my view, none of these considerations rise to the levels that were present
    in
Zhang
. I am particularly unmoved by the appellants argument that they
    should be excused from complying with the Convention because an appeal in
    Russia could take up to a year or longer and cost approximately US$100,000.
    The appellants claim is for $300 million. Their attempts to circumvent the
    Convention in the Ontario courts have taken over a year and a half and have
    presumably been expensive. Further, there is nothing on the record to indicate
    that they have attempted to pursue a remedy through diplomatic channels, as
    Article 14 permits them to do.

[60]

The
    question of whether considerations of access to justice could militate in
    favour an exception to service under the Convention in extreme circumstances is
    beyond the scope of this appeal. Suffice it to say that such an exception does
    not arise on the facts of this case.

CONCLUSION

[61]

Accordingly,
    I would dismiss the appeal.

[62]

If
    the parties cannot agree on costs they may file brief written submissions.

Released: JL April 2, 2013

M.
    Tulloch J.A.

I
    agree J.I. Laskin J.A.

I
    agree M. Rosenberg J.A.

[1]
The concurring judge, Hunt J.A., found it unnecessary to comment on the larger
    issues addressed by the majority.