COURT OF APPEAL FOR ONTARIO

CITATION: Orillia (City) v. Metro Ontario Real Estate
    Limited, 2021 ONCA 291

DATE: 20210506

DOCKET: C67924

Feldman, Simmons and Harvison Young JJ.A.

BETWEEN

The Corporation of the
    City of Orillia

Applicant (Appellant/

Respondent by way of cross-appeal)

and

Metro Ontario Real Estate Limited

Respondent
    (Respondent/

Appellant by way of cross-appeal)

AND BETWEEN

Metro
    Ontario Real Estate Limited

Applicant (Respondent/

Appellant by way of cross-appeal)

and

The
    Corporation of the City of Orillia

Respondent (Appellant/

Respondent by way of
    cross-appeal)

Robert Wood, for the appellant/respondent by way of
    cross-appeal

Krista Chaytor and Caitlin Steven, for the
    respondent/appellant by way of cross-appeal

Heard: November 3, 2020 by video conference

On appeal from the judgment of Justice Clayton Conlan of
    the Superior Court of Justice, dated December 20, 2019, with reasons reported
    at 2019 ONSC 7467, 15 R.P.R. (6th) 78.

Harvison Young J.A.:

A.

Overview

[1]

This appeal and cross-appeal arise out of a commercial lease of a
    grocery store in a shopping centre. The appellant landlord, the City of
    Orillia, appeals the judgment of the application judge who found in favour of
    the respondent Metros position that an amendment of the period of the lease
    was ambiguous and considered extrinsic evidence that supported Metros submission
    as to the ultimate term of the lease. Metro cross-appeals from the judgment
    dismissing its claims against Orillia in relation to certain other issues.

B.

Background

[2]

The issue on the main appeal is the expiry date of the lease. The
    original lease commenced on March 1, 1979 with an initial term of 25 years. The
    expiry date was February 28, 2004. Metro also had a right to five successive
    renewal periods of five years each. Thus, the ultimate expiry date was to be
    February 2029, or a maximum of 50 years from the date the lease commenced.

[3]

In 1999, when Metro was planning the construction of an approximately
    10,000 square foot addition, the parties negotiated an amendment to the lease
    which, among other things, extended the term of the lease by ten years,
    commencing on March 1, 2004 and expiring on February 28, 2014. The amendment
    gave Metro the option to extend the term of the lease for three additional
    periods of five years each for a total of five options or 25 years. Orillia brought
    an application for a declaration that the maximum term of the lease is 50
    years, expiring in 2029. At the application hearing and in the main appeal, Orillia
    argued that the lease expires, at the latest, in February 2029, while Metro
    argued that the lease extends until February 2039, at the latest.

[4]

The central issue on the cross-appeal is which party has the obligation
    to replace the roof of the grocery store. Starting in 2016, the roof of the
    grocery store began leaking, and Metro had to replace many of the ceiling tiles
    in the store. Months later, Metro determined that the roof needed to be
    replaced. Orillia took steps to implement a roof overlay solution but later asserted
    that it had no obligation to repair the roof. Metro brought an application
    requesting, among other things, an order requiring Orillia to replace the roof.
    At the application hearing and in the cross-appeal, Metro alleged that under
    the lease, Orillia had an obligation to replace the roof, while Metro only had an
    obligation to repair the roof. Orillia disagreed and argued that the roof,
    whether it requires repair or replacement, is Metros responsibility.

[5]

For the reasons that follow, I would allow the main appeal and dismiss
    the cross-appeal, both in favour of Orillia.

(1)

The decision below

[6]

The applications of Orillia and Metro were heard together. On the lease expiry
    date issue, the application judge dismissed Orillias application and declared,
    in favour of Metro, that the lease would expire in 2039 at the latest. He found
    that the lease was ambiguous because there were two reasonable interpretations
    of the lease term clauses.

[7]

The first interpretation, advanced by Orillia, was that the maximum
    50-year term of the lease was not altered by the amendment. Section 2 of the
    amendment, which extended the term of the original lease by ten years from 2004
    to 2014, reflected the exercising of two of the five five-year renewal options
    under s. 3(2) of the original lease. Section 3 of the amendment, which stated
    that Metro had the option to further extend the term for three additional
    periods of five years each for a total of five options or 25 years, reflected
    the fact that three renewal options remained, so that the lease would expire in
    2029 at the latest.

[8]

The second interpretation, advanced by Metro, was that the parties
    wanted to extend the length of the lease. Section 2 of the amending agreement
    added an additional ten years to the maximum potential length of the lease, and
    s. 3 of the amending agreement reflected that five five-year renewal periods
    remained after 2014, so that the lease would expire in 2039 at the latest.
    Section 3(3) of the original lease providing for a 50-year maximum term was
    altered by s. 6 of the amending agreement, which provided that the original
    lease is amended where necessary to give effect to the amendments.

[9]

The application judge found that the factual matrix did not help resolve
    the ambiguity in the lease. As a result, the application judge examined the
    extrinsic evidence. He found that the extrinsic evidence, including the notice
    of lease registered on title and an estoppel certificate (both of which stated
    that the lease could be extended to 2039), supported Metros position that the
    amendment extended the maximum length of the lease by ten years.

[10]

On
    the roof issue, in brief reasons, the application judge dismissed Metros
    application and determined that Orillia did not have any duty to replace the
    roof. He concluded that Metros obligation to maintain and repair the Leased
    Premises under s. 14(1)(a) of the lease included the roof. The application
    judge did not think that there was any legitimate basis to distinguish that
    clause because it says repair rather than replace.

(2)

Issues on appeal

[11]

Orillia
    makes four arguments on appeal:

·

The application judge erred in determining the lease was ambiguous;

·

The application judge erred in his consideration of the factual
    matrix;

·

The application judge erred in his treatment of the extrinsic
    evidence; and

·

The application judge erred in his consideration of commercial
    reasonableness.

[12]

Metro
    makes two arguments on their cross-appeal, although the parties reached an
    agreement on the second issue during oral argument:

·

The application judge erred in finding that Orillia does not have
    a duty to replace the roof; and

·

The application judge erred in finding that Metro does not have a
    property interest in the Triangle Land.

(3)

The parties positions

[13]

On
    the main appeal, Orillia argues that the application judge committed an
    extricable error of law when he found an ambiguity, as he failed to interpret
    the contract as a whole. He failed to read ss. 2 and 3 of the amending
    agreement harmoniously with the original lease and the rest of the amending
    agreement. The application judges reading of the amendment reads the words
    for three (3) additional periods of five (5) years each and if all remaining
    options are exercised out of s. 3 of the amending agreement.

[14]

Metro
    argues that this is a question of mixed fact and law and that the standard of
    review is one of palpable and overriding error. It submits that the application
    judge did not make such an error. If the parties had intended for s. 2 of the
    amending agreement to be an early exercise by Metro of two of its options to
    renew, then the section could have stated that. The application judge
    considered the lease and amending agreement as a whole, and he specifically
    considered the effect of s. 3(3) of the original lease and s. 6 of the amending
    agreement.

[15]

On
    the roof repairs issue, the cross-appellant, Metro, argues that the application
    judge erred in stating that nothing turned on the fact that Metros only
    obligation under the lease was to repair, rather than replace. It argues that
    the roof work is a replacement rather than a repair.

[16]

The
    respondent on the cross-appeal, Orillia, argues that Metro bears the sole
    responsibility of repairing the Store (as defined in the lease) and that
    Orillia has the responsibility of repairing the remainder of the Shopping
    Centre. The roof is part of the Store and Metro must repair or replace it when
    it affects their use and enjoyment of the premises.

C.

Discussion

[17]

A
    contract must be interpreted as a whole:
Sattva Capital Corp. v. Creston
    Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 64. Courts should
    not strain to create an ambiguity where none exists: see
Chilton v.
    Co-operators General Insurance Co.
(1997), 143 D.L.R. (4th) 647 (Ont.
    C.A.), at p. 654;
Amberber v. IBM Canada Ltd.
, 2018 ONCA 571, 424
    D.L.R. (4th) 169, at para. 63; and G.H.L. Fridman,
The Law of Contract in
    Canada
, 6th ed. (Toronto: Carswell, 2011), at pp. 442-43.

(1)

Standard of review

[18]

Contractual
    interpretation is a question of mixed fact and law requiring the application of
    principles of contractual interpretation to the words of a contract and its
    factual matrix:
Sattva Capital
, at para. 50. However, an extricable
    question of law is subject to a correctness standard of review. Potential
    extricable questions include the application of an incorrect principle, the
    failure to consider a required element of a legal test, or the failure to
    consider a relevant factor:
Sattva Capital
, at para. 53. Courts
    should be cautious in identifying extricable questions of law.

(2)

The main appeal

[19]

In
    my view, the main appeal should be allowed. The application judge committed an
    error of law by failing to consider the wording of the provisions in the
    context of the agreement as a whole. If he had not committed this error, he
    would have come to the conclusion that there was no ambiguity.

[20]

The
    original lease commenced in 1979 with an initial term of 25 years. Metro also
    had the option to renew for five successive periods of five years each. The maximum
    term was to be 50 years with an ultimate expiry date in 2029. The relevant
    provisions of the original lease are as follows:

INITIAL TERM

3. (1) TO HAVE AND TO HOLD the Leased Premises for and during a
    period of 25 years and nil months commencing on the first day of March, 1979.

RENEWALS

3. (2) The Tenant shall have the options to renew this lease
    for 5 successive renewal periods of 5 years each.

MAXIMUM TERM

3. (3) If the exercise of an
    option to renew shall result in the Term exceeding a period of 50 years, then
    notwithstanding the provisions of section 3(2), the Term shall expire on that
    date which is 50 years after the date which is the earlier of the Occupation
    Date or the commencement date of the Term.

[21]

The
    parties entered into a lease amending agreement in 1999. The amendment extended
    the term of the lease by ten years and gave Metro the option to extend the term
    of the lease for three additional periods of five years each for a total of
    five options or 25 years. The relevant provisions of the amending agreement are
    as follows:

2. TERM

The term of the Lease is
extended from
    the date that it would otherwise expire for a further term of ten (10) years
    commencing March 1, 2004 and expiring on February 28, 2014
.

3. RENEWAL

The Tenant has the option to further extend the term of the
    Lease for
three (3) additional periods of five (5) years
    each, for a total of five (5) options or twenty-five (25) years, if all
    remaining options are exercised
. The Tenant may exercise its options in
    the same manner as provided in the Lease.

6. EXISTING LEASE

The Lease is amended wherever
    necessary to give effect to the foregoing and the Landlord and Tenant confirm
    that the Lease as so amended remains in full force and effect. [Emphasis
    added.]

[22]

When
    the 1999 amendment is read within the context of the original lease, there is
    no ambiguity. Three reasons support this conclusion.

[23]

First,
    a reading of the 1999 lease amendment alongside the original lease, considered
    from the perspective of the parties in 1999, leads to this conclusion. It is
    the only coherent way to make sense of the
three
additional
    periods specified in s. 3 of the amendment, and Metro was unable to explain what
    else the three additional periods could refer to, apart from the interpretation
    advanced by Orillia. While the drafting was not perfect, this reading is the
    only harmonious way to read the amendment with the original lease. At the time
    of the amendment, five years remained in the first 25-year term. None of the
    lease extension options under the original lease had been exercised, as the
    first opportunity would only have arisen in 2004. In extending the original
    term by ten years to 2014, the parties provided that there would have been a further
    three options to renew. The provision of for a total of five in s. 3 of the
    amending agreement can only mean that the extension from 2004-2014 comprised an
    early exercise of two of Metros options to extend.

[24]

Second,
    the application judges interpretation would have rendered the overall term of
    the lease to be 60 years rather than 50, which was specifically precluded by
    s. 3(3) of the original lease. The application judges view that the
    basket clause in s. 6 of the amending agreement applies does not survive
    scrutiny. Section 6 provided that the original lease would be amended where
    necessary to give effect to the amendments. But the parties did not amend the
    50-year limit provision, despite the fact that it was in the same section of
    the original lease addressing the initial term and renewal options. It was not
    buried elsewhere in the lease. Had the parties intended to vary the maximum
    term set out in s. 3(3), it would have been easy for them to do so. They did
    not.

[25]

Third,
    this interpretation is supported by the factual matrix at the time of the 1999
    amendment. Metro was expanding its store significantly, by 10,676 square feet.
    The parties agree that as part of Metros financing, the landlord contributed
    about $672,000 to the project ($63 per square foot). In return, Metro agreed to
    pay about $4.50 more per square foot in rent in the extension area, compared to
    the rent it was paying for the original area of the store. There is no dispute
    that it was therefore in the landlords interest to secure an early extension
    of the lease by ten years to 2014. While Metro undoubtedly expended large
    amounts on the renovations, one can infer that this was a business decision and
    it already had the right to remain for a further 30 years at the same rent if
    it chose to exercise the options.

[26]

In
    short, the application judge fell into error in failing to consider the actual
    wording within the context of the lease as a whole, which led him to find that
    the provision was ambiguous. This was an extricable legal error: see
Thunder
    Bay (City) v. Canadian National Railway Company
, 2018 ONCA 517, 424 D.L.R.
    (4th) 588, at para. 46, leave to appeal refused, [2018] S.C.C.A. No. 358. The
    expiry date of the lease is 2029 and not 2039 as Metro argued. Orillias appeal
    must be allowed.

(3)

The cross-appeal

(a)

The roof repairs

[27]

Starting
    in 2016, Metro experienced leaks in the roof at the grocery store, and its roof
    consultant determined that the roof needed to be replaced. The consultant
    suggested either a roof overlay that would salvage the existing insulation, or
    a full roof replacement strategy. Orillia approved, budgeted for, and entered
    into a contract for the roof overlay solution, but Orillia later took the
    position that these steps were taken in a mistaken belief that it had an obligation
    to repair the roof and that it now understands it has no such obligation. It
    was in this context that Metro sought an order requiring Orillia to replace the
    roof.

[28]

The
    application judge correctly concluded that Orillia did not have any duty to
    replace the roof and that Metro had the obligation to maintain and repair the
    roof. Section 14(1)(a) of the lease states that the tenant, Metro, must
    maintain and repair the Leased Premises. The landlords obligation to make
    repairs and replacements in s. 15 is subject to the tenants obligations under
    s. 14.

[29]

The
    relevant sections of the lease are as follows:

ARTICLE XIV  REPAIR, ALTERATIONS AND MAINTENANCE OF STORE

TENANTS OBLIGATION

14. (1)
The Tenant covenants
that from and after the earlier of the Occupation Date or
    the date on which the Tenant accepts possession of the Store
and opens the
    Store for business to the public

(a) The Tenant shall maintain and repair the Leased Premises.

EXCEPTIONS

14. (2) The obligations of the Tenant under section 14(1) shall
    be subject to the following exceptions:

(a) reasonable wear and tear which does not affect the use
    and enjoyment of the Leased Premises by the Tenant.

ARTICLE XV  REPAIR, ALTERATIONS AND MAINTENANCE OF SHOPPING
    CENTRE

LANDLORDS OBLIGATIONS

15. (1) Subject to Article XIV, the Landlord shall

(a) keep or cause all buildings and improvements in the
    Shopping Centre and the Common Facilities to be kept in good repair and in a
    clean, orderly and safe condition (both inside and outside), and

(b) in a good and workmanlike
    manner promptly do all such work and make or cause to be made all necessary
    repairs, make all necessary rebuildings and replacements (structural or
    otherwise), ordinary as well as extraordinary, and foreseen as well as unforeseen,
    including all such repairs, rebuildings and replacements which as a prudent
    owner thereof it should do or make to properly maintain and operate all
    buildings and improvements in the Shopping Centre and the Common Facilities.

[30]

Given
    the structure of the repair obligations under this lease, the proper analytical
    approach is to determine 1) whether the roof work is included in the tenants
    obligation to repair, 2) determine whether the roof work falls under an
    exception listed in s. 14(2), and 3) if the roof work is not the tenants
    obligation, determine if the work falls under the landlords repair obligation
    in s. 15 of the lease.

(i)

Tenants obligation to repair

[31]

The
    construction of a covenant of repair in a lease is a contextual, fact-specific
    exercise: see
G.M. Pace Enterprises Inc. v. Tsai
, 2003 BCSC 1336, 37
    B.L.R. (3d) 60, at para. 66;
Lurcott v. Wakely
, [1911] 1 K.B. 905 (C.A.
    (Eng.)), at pp. 915-16. Like all contracts, the contract as a whole forms part
    of this context. Several principles on interpreting lease repair covenants
    emerge from a review of English and Canadian case law. First, the primary
    inquiry is to ask whether the repair gives the landlord back something entirely
    different than was demised. Second, the obligation to repair must be
    interpreted having regard to the specific wording of the repair covenant, the
    terms of the lease as a whole, and the premises rented, including its condition
    at the start of the lease. Third, a repair will generally involve some kind of
    replacement or renewal. One question is whether the replacement or renewal is
    of subsidiary parts of the whole or of the entire thing.

[32]

A
    tenant that covenants to repair the premises is not obligated to fix defects in
    the premises that go beyond a repair. The analytical question is whether the
    work that the tenant is being asked to do can properly be described as repair,
    or whether on the contrary it would involve giving back to the landlord a
    wholly different thing from that which he demised:
Ravenseft Properties
    Ltd. v. Davstone (Holdings) Ltd.
, [1980] Q.B. 12 (Q.B.D. (Eng.)), at p. 21;
    Nicholas Dowding
et al.
, eds.,
Woodfall: Landlord and Tenant
,
    loose-leaf (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021,
    release 122), vol. 1 at 13.032.

[33]

In
Morcom v. Campbell-Johnson
, [1955] 3 W.L.R. 497 (C.A. (Eng.)), at p.
    501, leave to appeal to H.L. (Eng.) refused, Denning L.J. observed that the
    distinction between a repair and an improvement is whether it is a replacement
    of something already there or if it is the provision of something new:

It seems to me that the test, so
    far as one can give any test in these matters, is this: if the work which is
    done is the provision of something new for the benefit of the occupier, that
    is, properly speaking, an improvement; but if it is only the replacement of
    something already there, which has become dilapidated or worn out, then, albeit
    that it is a replacement by its modern equivalent, it comes within the category
    of repairs and not improvements.

[34]

The
    test to determine whether the work goes beyond a repair has been stated in
    many different ways. One approach is to look at the particular building, to
    look at the state which it is in
at the date of the lease
,
    to look at the precise terms of the lease, and then come to a conclusion as to
    whether, on a fair interpretation of those terms in relation to that state, the
    requisite work can fairly be termed repair. However large the covenant it must
    not be looked at
in vacuo

    (emphasis in original):
Brew Brothers Ltd. v. Snax (Ross) Ltd.
, [1970]
    1 Q.B. 612 (C.A. (Eng.)), at p. 640, leave to appeal to H.L. (Eng.) refused
    (October 13, 1969);
Dowding
, at
    13.032.

[35]

In
Lurcott
, at p. 924, Buckley L.J. described repair as restoration by
    renewal or replacement of subsidiary parts of a whole. Renewal, as
    distinguished from repair, is reconstruction of the entirety, meaning by the
    entirety not necessarily the whole but substantially the whole subject-matter
    under discussion. Buckley L.J. continued, at p. 924, the question of repair
    is in every case one of degree, and the test is whether the act to be done is
    one which in substance is the renewal or replacement of defective parts, or the
    renewal or replacement of substantially the whole.

[36]

The
    English law on the definition of repair has, with some exceptions not relevant
    here, been adopted by Canadian courts: see e.g.
Norbury Sudbury Ltd. v.
    Noront Steel (1981) Ltd.
(1984), 11 D.L.R. (4th) 686 (Ont. H.C.), at p. 698;
Hall v. Campbellford Cloth Co. Ltd.
, [1944] 2 D.L.R. 247 (Ont. H.C.).

[37]

There
    are only a few Canadian cases that deal specifically with the obligation to
    repair a roof under a lease. In
Hall
, the roof of a curling rink
    collapsed after an unusual amount of snow accumulated on top of it. The roof
    and premises were available to be repaired, and the premises were not wholly destroyed.
    After a thorough review of Canadian, English, and American case law, the court
    determined, in conclusory reasons, that the repair fell under the tenants
    obligation to repair, reasonable wear and tear and damage by fire, lightning
    and tempest only excepted.

[38]

In
G.M. Pace,
the court concluded that the tenant was not obligated to
    replace the roof of a service station that was at the end of its useful life. The
    service station was described as an older building that had suffered the
    ravages of neglect, and the roof was the original roof, when the lease began.
    As a result, the court determined that replacing the roof would provide to the
    landlord a building in a condition better than the tenant had received it. The
    tenant was only obliged to maintain, through repairs, the building as it
    existed when the lease began. In addition, the roof did not require immediate replacement
    and could continue to be bandaided for quite some time.

[39]

Finally,
    in
708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd.
,
    1990 CanLII 1084 (B.C. Co. Ct.), revd on other grounds, 1991 CanLII 1374 (B.C.C.A.),
    the issue was whether the roof membrane repair was a structural repair. In
    deciding the issue, the court commented in
obiter
that [s]ome of the
    English cases appear very harsh on the tenant. But it must be kept in mind the
    tenancies are frequently of long duration. That a tenant for 40 years would be
    held responsible for replacing a 20 year bonded roof during the term is not
    remarkable. Some have cautioned that the length of the lease, although
    relevant, cannot be weighed too heavily: see
Post Office v. Aquarius
    Properties Ltd.
, [1987] 1 All E.R. 1055 (C.A.), at pp. 1064-65.

[40]

In
    summary, when interpreting a covenant of repair in a lease, a court should
    consider:

(i)        whether the
    repair gives the landlord back something entirely different than was demised (see
Ravenseft
;
Morcom
);

(ii)        the circumstances
    surrounding the obligation to repair including the specific wording of the
    covenant, the terms of the lease, the premises rented, and the condition of the
    premises at the start of the lease (see
Brew Brothers
;
G.M. Pace
;
708-1111 West Hastings
; and
Post Office
); and

(iii)       whether the
    replacement or renewal is of subsidiary parts of the whole or of the entire
    thing (see
Lurcott
).

[41]

The
    parties, quite properly, did not submit that s. 25 of the lease, which addresses
    end of term obligations, applied to this case. The lease was renewed in 2019
    and the final end of the lease will be 2029 as determined above.

Application to the facts

[42]

This
    case involves the commercial lease of an anchor tenant. The lease length is a
    maximum of 50 years, which is longer than the typical service life of built-up
    roofs of 20-25 years, according to Metros roof consultants report. The
    building was new when the lease started. When it became clear that the roof
    needed significant repairs, the parties were presented with two options: (i) a
    roof overlay, which would preserve part of the roof and defer a roof
    replacement for another 15-20 years, and (ii) a full roof replacement. Orillia
    elected for the less expensive roof overlay option.

[43]

The
    starting point for the determination of the parties rights and obligations
    under a commercial lease must be the lease itself, read as a whole. The
    covenant to repair as set out in s. 14(1) imposes a general obligation upon the
    tenant, while s. 14(2) creates several narrow exceptions. Metro did not argue
    that the roof repairs fall within one of the exceptions in s. 14(2) but argued
    that it was a replacement and not a repair and thus did not fall within the
    scope of s. 14(1).

[44]

Given
    the case law referred to above, I reject Metros submissions that the roof
    repair was a replacement rather than a repair. Here, the roof overlay
    solution will not itself even bring the property back to its original condition
    as it will last less time than a new roof would. This case is distinguishable from
    the concern in
G.M. Pace
, where a roof replacement by the tenant would
    have returned the premises to the landlord in a better condition than it was in
    when the lease began. It cannot be said that the roof overlay will give Orillia
    something entirely different  or better  than what was originally demised or
    that it replaces substantially the entire premises. At the beginning of the
    lease in 1979, the roof was brand new. Further, given the evidence that the
    roof overlay would last 15-20 years, and the fact that the lease was renewed in
    2019, and has one more renewal in 2024 before the end of the lease in 2029, it
    seems likely that Metro will receive the bulk of the benefit of the roof
    overlay.

[45]

It
    should also be noted that the covenant to repair issues in this appeal arise in
    the course of the lease, and thus are not governed by s. 25(2) of the lease,
    which provides that the tenant must surrender the leased premises upon
    termination of the term in good and substantial repair and condition in
    accordance with its covenants to maintain and repair the Leased Premises. This
    covenant may raise distinct considerations that are not necessary to canvas on
    this appeal.

(ii)

Reasonable wear and tear exception

[46]

A
    reasonable wear and tear exception excludes damage due to the reasonable use
    of the house by the tenant and the ordinary operation of natural forces from a
    tenants obligation to repair: see
Haskell v. Marlow
, [1928] 2 K.B. 45
    (K.B.D. (Eng.)), at p. 59;
Stellarbridge Management Inc. v. Magna
    International (Canada) Inc.
, 2004 CanLII 9852 (Ont. C.A.), at para. 41, leave
    to appeal refused, [2004] S.C.C.A. No. 371. The burden is on the party claiming
    reasonable wear and tear to show that they are entitled to rely on the
    exception: see
Stellarbridge
, at paras. 60-64.

[47]

In
    this case, s. 14(2)(a) excludes from the tenants repair obligation only
    reasonable wear and tear which does not affect the use and enjoyment of the
    Leased Premises by the Tenant. This exclusion could not apply as the record
    indicates that the roof was, at points, leaking, which would affect the tenants
    use and enjoyment of the property.

(iii)

Landlords obligation of repair

[48]

Given
    my conclusion that the roof repair is Metros obligation, it is clear from the
    terms of s. 15 of the lease that Orillia is not obligated to repair the roof.

[49]

A
    review of the lease indicates that there are no additional provisions that are
    relevant to the interpretation of ss. 14 and 15 in this case. The application
    judge did not err in concluding that Orillia did not have any duty to replace
    the roof.

(b)

The Triangle Land

[50]

In
    the course of argument before this court, the parties were able to agree that
    it was not necessary to determine any issues of rights with respect to the
    Triangle Land on this appeal at this time.

D.

Disposition

[51]

I
    would allow the appeal and dismiss the cross-appeal. All inclusive costs of the
    appeal of $25,000 and all inclusive costs of the application below of $35,000
    are payable by the respondent and appellant by way of cross-appeal, Metro, to the
    appellant and respondent by way of cross-appeal, Orillia, for a total of
    $60,000.

Released: May 6, 2021 K.F.

A. Harvison Young J.A.

I agree K. Feldman J.A.

I agree Janet Simmons J.A.


WARNING

Prohibitions under the
Child, Youth and Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
    decision:

Prohibition re identifying child

87(8)
No
    person shall publish or make public information that has the effect of
    identifying a child who is a witness at or a participant in a hearing or the
    subject of a proceeding, or the childs parent or foster parent or a member of
    the childs family.

Prohibition re identifying person charged

87(9)
The court may make an order prohibiting the publication of information that has
    the effect of identifying a person charged with an offence under this Part.

Transcript

87(10)
No
    person except a party or a partys lawyer shall be given a copy of a transcript
    of the hearing, unless the court orders otherwise.

Offences re publication

142(3)
A person who contravenes subsection 87 (8) or 134 (11) (publication
    of identifying information) or an order prohibiting publication made under
    clause 87 (7) (c) or subsection 87 (9), and a director, officer or employee of
    a corporation who authorizes, permits or concurs in such a contravention by the
    corporation, is guilty of an offence and on conviction is liable to a fine of
    not more than $10,000 or to imprisonment for a term of not more than three
    years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: P.Y. v. Catholic Children's Aid
    Society of Toronto, 2021 ONCA 248

DATE: 20210419

DOCKET: C68909

Fairburn A.C.J.O., Tulloch and
    Miller JJ.A.

BETWEEN

P.Y. and A.Y.

Plaintiffs (Appellants)

and

The Catholic Childrens Aid
    Society of Toronto et al.

Defendants (Respondents)

P.Y., acting in person

A.Y., acting in person

Carole Jenkins, for the respondents The
    Catholic Childrens Aid Society of Toronto, Mary McConville, Janice Robinson
    and Rena Knox

Domenico Polla, for the respondents Her
    Majesty the Queen in Right of Ontario, The Office of the Childrens Lawyer of
    Toronto and Katherine Kavassalis

Sean Dewart and Ruben Lindy, for the
    respondent Frances Ann Gregory

Susan M. Sack, for the respondent Fatma
    A. Khalid

Charles Sinclair, for the respondent
    Haeley Gaber-Katz

Logan Crowell, for the respondent The
    Hospital for Sick Children

Daniel Bassili, for the respondent
    Conseil Scolaire Catholique Mon Avenir

Heard: in writing

On
    appeal from the judgment of Justice Frederick L. Myers of the Superior Court of
    Justice, dated October 30, 2020, with reasons reported at 2020 ONSC 6660.

COSTS ENDORSEMENT

[1]

This court issued reasons on March 16, 2021, dismissing the appeal from
    the dismissal of the action against the remaining defendants as being frivolous
    and vexatious, pursuant to r. 2.1.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.

[2]

The appellants did not respond to
    the communication request sent by the counsel for the following respondents:
    The Catholic Childrens Aid Society of Toronto, Mary McConville, Janice
    Robinson, and Rena Knox. As such, they were unable to arrive at an agreement.

[3]

We have reviewed the written submissions provided by the parties. The
    respondents, The Catholic Childrens Aid Society of Toronto, Mary McConville,
    Janice Robinson, and Rena Knox, seek partial indemnity costs in the amount of $2,344.75.
    The respondent, The Hospital for Sick Children, seeks partial indemnity costs
    in the amount of $1,062.88. Lastly, the appellants request that there be no
    order for costs.

[4]

The requested partial indemnity costs are reasonable. We order that the
    appellants shall pay to the respondents, The Catholic Childrens Aid Society of
    Toronto, Mary McConville, Janice Robinson, and Rena Knox, costs in the amount
    of $2,344.75. We also order that the appellants shall pay to the respondent, The
    Hospital for Sick Children, costs in the amount of $1,062.88. All costs are
    inclusive of disbursements and applicable taxes.

Fairburn A.C.J.O.

M. Tulloch J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Parliament v. Conley, 2021 ONCA
    261

DATE: 20210426

DOCKET: C67348

Huscroft, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Cole Parliament, an incapable by his Litigation Guardian,

Kimberley York, John Parliament, and the said

Kimberley York personally

Plaintiffs
    (Appellants)

and

D.W. Conley and V. Park

Defendants (Respondents)

Gavin
    MacKenzie, Brooke MacKenzie, Hilik Y. Elmaleh and Michael A. Hershkop, for the
    appellants

Darryl
    Cruz, Dorothy Charach and Joseph Ur, for the respondents

Heard: October 20,
    2020 by video conference

On appeal
    from the order of Justice Susan Woodley of the Superior Court of Justice, dated
    August 30, 2019.

Harvison
    Young J.A.:

A.

Overview

[1]

Cole Parliament was diagnosed with severe
    hydrocephalus when he was around four months old. He is now 21 years old and
    has cognitive and physical disabilities. He and his parents, Kimberley York and
    John Parliament, sued the defendants and respondents on appeal, Dr. Conley and
    Dr. Park, for negligence, alleging that they delayed in diagnosing and treating
    Coles hydrocephalus and that this delay caused his brain damage. For the
    purposes of this appeal, the essence of their claim was that Drs. Conley and
    Park had breached the respective and applicable standards of care in failing to
    take appropriate steps to see that Cole was followed up when they had first noted
    the infants large head circumference.

[2]

After a lengthy jury trial during which some 27
    experts testified, the jury found that the standard of care had been met by
    both respondents, and the trial judge accordingly dismissed the action. The
    appellants seek a new trial on the basis that the only expert on standard of
    care for the respondents, Dr. Bruce, gave evidence that went far beyond the
    scope of his expertise, failed to demonstrate impartiality, and usurped the
    jurys proper role in opining on core credibility and factual questions which
    included what the doctors had actually told Coles mother, Ms. York, and
    whether she had followed the advice she was given. The respondents take the
    position that Dr. Bruce was not biased and that his evidence fell within the
    appropriate bounds. Moreover, they argue, the failure of the appellants trial
    counsel to object to this evidence or to the charge on these grounds precludes them
    from raising this on appeal.

[3]

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

B.

Background

(1)

Medical history and events

[4]

The sequence of events between the time of
    Coles birth in August 1999 until the diagnosis of hydrocephalus and his
    surgery in mid-December 1999 to treat his hydrocephalus is important context to
    the issues on this appeal, and for that reason, I will set them out
    chronologically.

[5]

Cole Parliament was born on August 16, 1999, the
    first child born to his parents Kimberley York and John Parliament. Ms. York
    had been induced due to concerns about Coles small size, and among other
    things it was recorded on the physicians record of newborn infant that Cole
    had needed resuscitation at birth and weighed six pounds, two ounces.

[6]

Dr. Conley was the long-time family doctor of
    Ms. York, and Ms. York took Cole to his regular check ups with Dr. Conley. Between
    his first visit to Dr. Conley at the age of three weeks on September 3, 1999
    and his last visit to Dr. Conley on October 15, 1999, Coles head circumference
    went from the 25th percentile to over the 90th percentile. During the same
    period, his weight went from 3.11 kg, the 3rd percentile, to 4.98 kg, under the
    50th percentile. The following chart summarizes Dr. Conleys notes on these measurements:

Date of Visit

Head Circumference

Height/Length

Weight

September 3,
          1999

37 cm; over
          25th percentile

52 cm; 10th
          percentile

3.11 kg (6.8
          lbs); 3rd percentile

September 21,
          1999

39 cm; 50th
          percentile

54 cm; 3rd
          percentile

3.78 kg (8.3
          lbs); 3rd percentile

October 15,
          1999

42 cm, 41.5
          cm; 97th percentile

57 cm; under
          25th percentile

4.98 kg (11
          lbs); under 50th percentile

[7]

Ms. York insisted that she raised the concerns
    about Coles head size at each visit and that each time she was told it was
    normal. Dr. Conley denied that Ms. York ever raised this concern as he would
    have written it down if she had. Rather, his evidence was that he was the one
    who raised the concern about Coles head size. When Cole visited Dr. Conley for
    the last time on October 15 before the family moved to Barrie, Dr. Conley gave Ms.
    York Coles immunization form and, according to Ms. York, told her that the
    next expected visit would be in two months time. Ms. York said they would find
    another doctor in Barrie.

[8]

According to Dr. Conley, his nurse had taken
    Coles head circumference measurement that day (42 cm), and he remeasured and obtained
    a measurement of 41.5 cm. Dr. Conley testified he would have been discussing his
    concern with Coles head size with Ms. York and would have recommended that she
    take Cole for a follow up in two to three weeks. There was no evidence that he
    provided her with a referral to a physician in Barrie. Nor did he provide Ms.
    York with Coles chart or follow up. Dr. Conley acknowledged that he had some
    limited recollection of the September 3 and October 15 visits, but not the
    September 21 visit, and would otherwise require his notes.

[9]

In addition, Ms. York took Cole to a walk-in
    clinic on November 13. She was concerned because Cole had developed a cough and
    did not seem to be eating enough. He was seen by Dr. Park. Dr. Park
    acknowledged at trial that he had no recollection of this visit apart from his
    notes. Although the visit was very short, Dr. Park measured Coles head. His
    notes indicate that it was 45 cm in circumference, which Dr. Park plotted and
    found that it was in the 95th percentile. He testified that this was definitely
    abnormal. His notes also say large head, [t]o ER for assessment, and URI
    for upper respiratory tract infection. Considering the ER note, Dr. Park
    testified that he would have explained his concern to Ms. York, and he would
    have told her to go to the emergency room as soon as possible. Ms. York denied
    that Dr. Park had expressed any concern to her about Coles head size or that
    he had told her to take Cole to the emergency room that day, stating Im a new
    mom. I mean, he has a freckle on his right arm, you know, I would bring that up.
    According to Ms. York, Dr. Park told her that everything was fine and Cole was
    in good health.

[10]

The young family moved to Barrie as planned at
    the end of November. On December 6, Ms. York took Cole to the emergency
    department at the Royal Victoria Hospital in Barrie because he was drooling
    more than usual and there were white patches on his gums. The hospital records
    indicate it was thrush. From what Ms. York could remember, the doctor did not
    measure Coles head and his head was not an issue that day. According to Ms.
    York, they left with no problems, no issues.

[11]

On December 11, 1999, Ms. York attended a social
    gathering where a family friend named Susan Williams, a pediatric nurse who
    worked for pediatrician Dr. Schelberg, was also present. Ms. Williams expressed
    concern about the size of Coles head, and she testified that Ms. York
was surprised that I thought there was a problem with the size of
    the head because she had been told it was normal. Ms. Williams
offered to arrange for Dr. Schelberg to see Cole. Ms. York readily
    agreed and took the next available appointment which took place on December 16,
    1999. Dr. Schelberg
examined Cole and measured his
    head, and his notes indicate large head. Specifically, Dr. Schelberg documented
    a head circumference of 50 cm, greater than the 95th percentile.

[12]

Dr. Schelberg advised Ms. York that Cole had
    hydrocephalus.
Dr. Schelbergs clinical notes had
    included the phrases dilated veins, (+) sunset and (+) crackpot sign. During
    his examination in chief, Dr. Macnab, an expert witness for the appellants, reviewed
    Dr. Schelbergs findings. Dilated veins on the surface meant that the pressure
    from the hydrocephalus was compromising normal circulation of blood through the
    blood vessels. Sunsetting eyes, where you can see the whites of the eyes more
    than the pupil, were a sign that pressure damage had occurred to the nerve
    pathways that control eye movement. A cracked pot sign referred to Coles skull
    bones being so pushed apart that the skull was effectively broken because of
    the rising pressure in his head.

[13]

Dr. Schelberg referred Cole to Dr. Drake, a neurosurgeon
    at the Hospital for Sick Children, who saw him the next day, on December 17. According
    to Ms. York, Dr. Drake advised her that Cole had severe hydrocephalus. Cole
    needed surgery to insert a shunt, which would drain the excess fluid from his
    brain. Cole underwent this surgery on December 19, 1999.

[14]

Dr. Conleys wife worked at Dr. Conleys office,
    and she testified that she had received a call from Mr. Harold York, Ms. Yorks
    father, on December 17, 1999, based on a note she had taken. The note said Mr.
    York called to say Cole has been diagnosed with hydrocephalus and [a]lso
    stated Dr. C had told Kim to have head size checked. Mr. York did not recall
    making that call and was sure that call never took place. He also denied
    having made that last statement, saying [t]hats absolutely not possible
    because Dr. Conley had always said that Coles head size was normal.

(2)

The trial

[15]

The main issues at trial were standard of care,
    causation, and damages. On the first issue, which is also the relevant issue on
    this appeal, the central dispute was whether Dr. Conley and Dr. Park had met
    the applicable standard of care. The appellants position was that they had not.
    They argued that neither doctor had told the parents that Coles head size was
    a matter of concern. Even if some concern was expressed at the time, the
    standard of care required the doctors who saw Cole in October and November to
    take additional steps and actually make referrals, among other things. Further,
    the notion that Ms. York would not have brought Cole for assessment right away,
    had she been instructed to, defied common sense, particularly in light of the
    fact that this was a mother who was good at following up on instructions and took
    Cole to many medical appointments, including for small things.

[16]

The respondents position was that both doctors
    had expressed their concerns to Ms. York; that the doctors had taken sufficient
    steps because a referral was not required when Dr. Conley saw Cole on October
    15 and Dr. Park had told Ms. York to take Cole to the emergency room; and that
    Ms. York had chosen not to take Cole for follow up with a doctor or to the
    emergency department despite receiving advice to do so.

[17]

In short, the issues of credibility and
    reliability at trial as they related to standard of care were central issues
    revolving around what the two doctors had said to Ms. York on the various
    occasions that they saw Cole, whether she followed any instructions she was
    given, and whether the doctors actions or omissions met the applicable
    standard of care.

(3)

The expert evidence at trial

[18]

Although there were 27 experts who testified at
    the trial, only four testified as to the standard of care. For the appellants, three
    doctors were qualified as experts as to the standard of care:

1.

Dr. James Rourke, an expert in family medicine,
    creator of the Rourke Baby Record guideline for looking after babies and
    infants up to the age of five used by most family doctors in Canada;

2.

Dr. Andrew Macnab, an expert in pediatrics and
    neonatology, a subspecialty of pediatrics concerned with looking after newborn infants,
    and a professor at the University of British Columbia; and

3.

Dr. Jan Ahuja, an expert in walk-in centre care,
    a walk-in and emergency medicine physician, a professor at the University of
    Ottawa, and a peer assessor and medical inspector for the College of Physicians
    and Surgeons of Ontario.

[19]

For the respondents, the following doctor was
    qualified as an expert as to the standard of care:

1.

Dr. Barry Bruce, an expert in family medicine and episodic care, a
    physician practicing in Carp, Ontario who has mainly worked in general family
    practice and episodic walk-in patient care, and former Chief of Staff at the
    Queensway Carleton Hospital in Ottawa.

[20]

Dr. Rourke opined that the abnormal and serious
    clinical finding of rapidly increasing head circumference was evident by
    October 15, 1999, at which point it had increased from over the 25th percentile
    to the 50th percentile and then to the 97th percentile over a six-week period. He
    noted that by September 21, Coles weight had remained on the same percentile
    from September 3, while the head moved up significantly, and that at this
    point in time, ones got to be concerned about which is the problem. He
    testified that Dr. Conley fell below the standard of care on October 15, 1999 because
    based on Dr. Conleys notes, Dr. Conley had failed to recognize the serious
    implications of Coles very abnormal head circumference growth, failed to carry
    out and record an assessment with respect to the serious clinical finding, and
    failed to make an urgent referral to a specialist.

[21]

Dr. Macnab opined that the standard of care
    required that a baby with Coles pattern of head growth, as documented by Dr.
    Conley on October 15, 1999, must be referred to a specialist immediately. Dr.
    Macnab explained that growth typically occurs along the centile we are born on,
    so when patterns of growth fall off percentiles, it is worrying because it
    means the growth is not following the normal curve. He plotted Dr. Conleys
    measurements of Coles head circumferences and pointed out that while there was
    cause for concern even at the visit of September 21 because there was crossing
    of centiles, Coles head measurement by October 15 was essentially off the
    centile chart and showed a highly abnormal pattern of growth requiring
    immediate action, namely referral to a specialist. When asked to assume that
    Dr. Conley did tell Ms. York to take Cole to have his head checked and whether a
    patient can be expected to follow that advice, Dr. Macnab opined that its not
    appropriate to delegate or abdicate this kind of decision, responsibility,
    care, next step, to a young mother and that with something this important,
    the follow-up has to be guaranteed.

[22]

Dr. Ahuja opined that Dr. Park fell below the
    standard of care because he failed to carry out and record a complete history
    and physical examination related to the abnormal and significant finding of
    Coles head size, he failed to discuss this abnormal finding with Ms. York, and
    he failed to properly and effectively refer Cole for further urgent assessment.
    Dr. Park did not act appropriately upon his finding of an abnormal head size.
    He should have provided a copy of his record of treatment clearly indicating
    his concerns, sent a consult note to the emergency department indicating his
    concerns, and made direct contact with at least a triage nurse at the emergency
    department of the hospital. Dr. Ahuja assumed that these things were not done
    because they were not documented but agreed that if something is not written
    down it does not necessarily mean that the act did not happen. His opinion was
    that Dr. Parks chart was clinically substandard.

[23]

Dr. Bruce opined that both Dr. Conley and Dr.
    Park met the standard of care. Rather than using the Boston Graph that Dr.
    Conley had used in 1999, Dr. Bruce re-plotted Coles head circumference
    measurements on the graph used by Dr. Park with different percentile curves. Dr.
    Bruces plots showed that Coles head circumference was at approximately the 75th
    percentile on September 3, about the 80th percentile on September 21, and about
    the 95th percentile on October 15. His opinion was that Coles changing head
    size over the three visits in itself did not require a referral, and Dr. Conley
    was not obliged to make a referral for Cole on October 15, as Cole was
    otherwise well. Even using Dr. Conleys percentiles and plotting, the standard
    of care on October 15 did not require a referral, only that head circumference
    be remeasured again within two to four weeks. Dr. Conley had appropriately remeasured
    Coles head when he identified a concern about head size, and it was
    appropriate to advise Ms. York to have Coles head size followed by a new
    physician, if one could be found, at an appropriate time.

[24]

With respect to Dr. Park, Dr. Bruce said he had
    met the standard of care because he recognized that Cole had a large head, he
    had measured it, he had assessed the measurement and found a clear abnormality,
    and he had decided to send Cole to the emergency room for assessment. Assuming
    that Dr. Park had told Ms. York that his reason for wanting her to go to the
    emergency room was for an assessment of Coles head size and that he had given
    her a note with his findings for the emergency room doctor, that would meet the
    standard of care. No additional steps were required. Dr. Park was entitled and
    obligated to rely on Ms. York to take Cole to the emergency room.

[25]

In cross-examination, Dr. Bruce agreed that he ignored
    Ms. Yorks evidence when he wrote his report, because he did not think it was
    relevant. He also expressed his opinion that he did not think Ms. Yorks memory
    was accurate, that he had put more weight on Dr. Conleys evidence because he
    had some notes, and that it was inconceivable that Dr. Park had not told Ms.
    York to take Cole to the emergency room.

[26]

As I will discuss further below, the evidence of
    Dr. Conley and Dr. Park was irreconcilable with the evidence of Ms. York. Dr.
    Conley maintained that he expressed concern about Coles head size in October
    and that Ms. York did not raise a concern about his head size during any of the
    visits as he would have written that down. Ms. York testified that she was the
    one who raised the concern and was repeatedly reassured that Coles head size was
    within normal range and that she should not worry. She specifically denied that
    Dr. Conley told her on October 15 that she needed to have Coles head size
    watched or checked, stating that she was given the immunization record and told
    that Cole did not need to be seen for another two months. With respect to Dr.
    Park, Ms. York denied that he had told her to take Cole to the emergency room,
    saying that she would have done so had he said that. Credibility and
    reliability of the lay witnesses was thus a critical issue for the jury to
    resolve in this trial.

(4)

Issues at trial with respect to expert evidence

[27]

There were no objections to the admissibility of
    Dr. Bruces evidence either at the outset or in the course of his testimony and
    cross-examination. Following Dr. Bruces testimony, however, the respondents attempted
    to qualify another doctor, Dr. Karen Fleming, as an additional expert in the
    standard of care. The appellants objected to Dr. Fleming being qualified as an
    expert because she lacked independence and impartiality and her evidence was
    unnecessary.

[28]

The trial judge reviewed Dr. Flemings reports and
    found that they included credibility assessments, inaccuracies, and methodological
    flaws, and thus lacked objectivity. Dr. Fleming accepted the evidence of the respondent
    doctors and rejected the evidence of the appellants without explanation, and
    she was unwilling or unable to recognize or acknowledge this preference. She made
    improper fact-finding and credibility assessments and acted as both judge and
    jury. The trial judge found that there was a serious concern that the jury
    would accept the premise underlying Dr. Flemings opinion as conclusive or be affected
    by her acceptance of certain facts. The trial judge concluded that Dr. Fleming
    lacked independence, rendering her incapable of providing an impartial opinion
    and refused to admit her evidence.

(5)

Pre-charge conference and closing submissions

[29]

At the pre-charge conference, counsel for the
    respondents made submissions clarifying the trial judges summary of Dr.
    Bruces evidence. Counsel for the appellants did not make submissions on Dr.
    Bruces evidence except to clarify that Dr. Bruce had not opined on whether he
    accepted Harold Yorks evidence.

[30]

During closing submissions, counsel for the
    respondents told the jury that they would need to make decisions on the
    credibility and reliability of the fact witnesses and expert witnesses. Counsel
    submitted that the standard of care issue in the case was driven by two main
    questions, namely, what actually happened between Dr. Conley and Ms. York on
    October 15 and between Dr. Park and Ms. York on November 13: (1) whether Dr.
    Conley told Ms. York on October 15 that Coles head size needed to be followed;
    and (2) whether Dr. Park told Ms. York on November 13 that she should take Cole
    to the emergency room. The answers to these two questions should be yes. It
    made no sense that both doctors would have been concerned about Coles head
    size, recorded that concern, and not told Ms. York. With regard to the expert
    evidence on the standard of care issue for both Dr. Conley and Dr. Park,
    counsel encouraged the jury to accept the evidence of Dr. Bruce.

[31]

Counsel for the appellants submitted that the
    question was not what Dr. Conley may or may not have told Ms. York, as defence
    counsel had framed it, but rather what he ought to have done in those
    circumstances. There were instances where Dr. Conley and Dr. Park appeared to
    change their evidence, and counsels position was if the doctors did nothing
    wrong during the October and November visits, they would not need to come to
    court and attempt to change their evidence. Counsel for the appellants also
    emphasized the importance of the credibility of the witnesses and highlighted
    the evidence of Dr. Bruce on standard of care. Counsel submitted that Dr. Bruce
    did not fulfill his obligation to the court to provide objective evidence, read
    from a transcript of Dr. Bruces cross-examination, and submitted that the jury
    could not trust Dr. Bruce.

(6)

The jury charge and verdict

[32]

The jury charge consisted of general principles
    that apply to civil jury cases, legal principles on the issues that governed
    the case including liability, causation, and damages, the specific questions
    the jury would need to answer, and instructions to assist the jury with its
    deliberations. The trial judge told the jury that in deciding the facts in this
    case, they would need to weigh and judge the testimony of witnesses for
    credibility and reliability. She provided guidance for dealing with expert
    testimony, instructing the jury to take into account the experts skill,
    experience, knowledge, familiarity with the facts, credibility, and whether the
    expert seemed impartial and fair or unwilling to consider opinions other than
    their own. Further, the jury was entitled to reject an experts opinion or find
    it less helpful if they found the facts to be different from those underlying the
    opinion.

[33]

In reviewing the legal principles in the case,
    the trial judge began with negligence and the question of whether the defendants
    breached the required standard of care. The jury was told that if this was not
    proven, the plaintiffs could not succeed. The trial judge began her review of the
    evidence on standard of care by telling the jury that while judges have a right
    to comment on a witnesss credibility and inferences to be drawn from the
    evidence, she did not intend to do so, and that it was the jurys duty to
    interpret the evidence. In reviewing Dr. Bruces evidence, the trial judge
    mentioned the cross-examination where Dr. Bruce testified that he had accepted
    Dr. Conleys evidence, did not accept anything Ms. York said because she was
    probably mistaken, and did not reference any of Mr. Parliaments evidence. The
    trial judge did not give a specific instruction in the charge regarding Dr.
    Bruces evidence, but she did end the standard of care portion of her charge by
    reminding the jury that it was up to them to determine the weight to give an
    expert opinion by considering various factors and questions, including whether the
    witness seemed impartial and fair.

[34]

The jurys verdict was that Dr. Conley and Dr.
    Park did not breach the standard of care. The jury made no findings on
    causation. The trial judge dismissed the action against Dr. Conley and Dr. Park
    in accordance with the jurys verdict.

C.

Issues on appeal

[35]

The appellants found their appeal on the trial
    judges failure to exclude Dr. Bruces evidence, or alternatively, to provide a
    clear and specific instruction to the jury with respect to his lack of
    impartiality and the impropriety of his assessments of the parties credibility.
    They argue that a new trial is required.

[36]

The respondents argue that, first, the jury
    charge was sufficient to instruct the jury as to the concerns surrounding Dr.
    Bruces evidence, and that this concern about bias simply went to the weight to
    be given to the opinion. Moreover, they argue that the appellants ought not to
    succeed on appeal on a new concern not raised at trial. Finally, they argue that
    the verdict was reasonable. There was no miscarriage of justice; the appellants
    simply failed to meet their onus of proof.

D.

Analysis

(1)

Did the trial judge err by failing to exclude
    Dr. Bruces evidence or by failing to provide a specific instruction to the jury?

(a)

Positions of the parties

[37]

The appellants submit that Dr. Bruces evidence
    was inadmissible in whole or in part, and that the trial judge erred in failing
    to so instruct the jury. Dr. Bruces evidence was inadmissible because he
    failed to fulfill his duty to be independent or impartial. He accepted the
    version of events presented by the respondents and ignored the evidence of the
    appellants. Dr. Bruce not only provided his opinion on what he thought

happened
    on central questions in dispute, but he even went so far as to purport to make
    findings of fact. The trial judge should have exercised her residual discretion
    as part of her gatekeeping role to exclude Dr. Bruces evidence or at the very
    least, she should have provided a specific instruction to the jury concerning
    the impropriety of Dr. Bruces evidence and his failure to fulfill his duty.

[38]

The respondents argue that the appellants
    closing submissions warned the jury about Dr. Bruces alleged bias in his
    testimony with respect to both Dr. Conley and Dr. Park, and about Dr. Bruce ignoring
    Ms. Yorks evidence and accepting the evidence of the physicians, despite the
    fact that they acknowledged having no recollections of the visits while Ms.
    York testified that she did. The respondents also submit that the charge
    contained all the necessary warnings on credibility and reliability of all
    witnesses and reiterated the appellants concerns with Dr. Bruces evidence.
    Even if the appellants had asked the trial judge to exclude Dr. Bruces
    evidence, it would have been inappropriate for her to do so. Dr. Bruces
    evidence did not reveal a level of bias that would go to threshold
    admissibility, and any concerns about bias would appropriately go to the weight
    to be given to his evidence. He did not make findings of fact and he did not
    advocate for the position of the respondents. He was merely making assumptions
    and being cross-examined on those assumptions. Dr. Bruce reviewed the records
    and transcripts and provided an expert opinion based on that review.

(b)

Impugned evidence of Dr. Bruce

[39]

The credibility and reliability of the lay
    witnesses were critical issues for the jury to resolve in this trial. It is
    against this backdrop that the appellants argue that Dr. Bruce was neither
    independent nor impartial  that he opined on matters going to the heart of the
    credibility and veracity of Ms. York, Mr. Parliament, and the two doctors, at
    times stating that he did not think Ms. Yorks evidence was relevant, that it
    was untruthful, or that she could not have remembered it correctly. It is
    necessary to review some of the impugned portions of Dr. Bruces testimony in
    order to assess the submissions of the appellant.

[40]

Dr. Bruce agreed on cross-examination that he
    chose to accept Dr. Conleys evidence over Ms. Yorks evidence, explaining that
    he could find discrepancies in their evidence, that Ms. Yorks evidence in
    discovery was not relevant, that he assumed Ms. York could not remember
    correctly despite Ms. York saying that she had a clear recollection and Dr.
    Conley saying he did not remember those visits well, and that he was not sure
    her memory of the events was accurate:

Q.
And
    you proceeded on the assumption throughout your report that Ms. York is
    untruthful; yes?

A.
I
    did find discrepancies between what I could read in the charts and what Ms.
    York was saying, yes.

Q.      Why
    didnt you put down the information that Ms. York said in her discovery?

A.
Well, because I didnt think it was
    relevant.

Q.      Not
    relevant? The fact that she says that he never mentioned -- she brought to ...
    Dr. Conley a concern about Coles head size and he told her it was normal, thats
    not relevant? The fact that he told her that everything was normal on October
    15th, thats not relevant?

A.      I
    think with so many years, that
nobody could remember exactly what was said.
I think thats why I was looking at -- Dr. Conley had his notes to refer to,
    and he had some memory of what he would have done, but there were no notes that
    were kept by Coles mother.

Q.      [W]ere
    you fair and objective and nonpartisan here?

A.      I think so.

Q.      By not referring to Ms. Yorks evidence?
    Yes?

A.
Well,
    by assuming she couldnt remember correctly.

Q.      Why
    would you assume that if she says she remembers?

A.      It was so many years.

Q.      So
    you assume that shes just making it up? Thats it; right? Under oath, shes making
    those statements up? Thats your assumption?

A.      I
    dont think shes --
she believes that she remembers it, but Im not sure
    that it was accurate.

Q.      So
    didnt you --
you perceived your role in this case to actually assess the
    credibility of the two parties and make a decision who you believe or who you dont
    believe?

A.      I cant answer that.

Q.      Well,
    of course you can because thats what you did.
You chose to take Dr. Conleys
    evidence, including those things that he [had] not documented in his records
    just because he said it on discovery and used that to defend him. Yes or no?

A.
Its true.
[Emphasis added.]

[41]

Dr. Bruce later went on to opine in
    cross-examination that Dr. Conley had conducted a sufficient neurological
    examination despite the limited notes on Coles neurological status on October
    15 because he could read between the lines. Dr. Bruce also assumed that Dr.
    Conley had told Ms. York to have Coles head size followed, based on the note
    will watch head size:

Q.      I
    see. So how about this reading between the lines: So for everything else, you dont
    accept Ms. Yorks evidence, but for this neurological examination, whatever she
    told Dr. Conley is gospel for you; right?

A.      No.
Dr. Conley made notes of it at the time and made excellent notes at the
    time, and, yes, its gospel. What the mother said was relying on memory for
    events that had occurred many years before, so I have to be a little askance
    that those were remembered correctly, yes.

Q.      Theres
    no note in Dr. Conleys chart that says that he told the mother to go and have
    the head checked; correct?

A.      Theres
    no note that says specifically those words, no.

Q.      Where
    do you get the fact that Dr. Conley told the mother -- as you say in your
    report, Dr. Conley told the mother to go and see another doctor to have the
    head checked. Where did you get that information from?

A.      Ill have to see exactly what I said.

Q.
You
    wrote: It was appropriate for Dr. Conley in the circumstances to advise Ms.
    Parliament, as he did, to have Coles head size followed by his new physician.

A.      Yes.

Q.      Where did you get that from?

A.
Well, thats what
    I assume from that one line, will watch head size.
[Emphasis added.]

[42]

The appellants also point to Dr. Bruce preferring
    the evidence of Dr. Park over Ms. York and straying well beyond the confines of
    his role during his cross-examination when providing his opinion about whether
    Dr. Park met the standard of care:

A.

Hes required to prepare a note. Actually, a
    large head, as serious as it is, is a rather simple concept to portray.

Q.      All right. You reviewed his notes. Did
    you find any?

A.      No. No, I did not.

Q.
But
    for that purpose, you -- to render your opinion, you relied on Dr. Parks evidence
    even though its nowhere in the records; correct?

A.
Yes.

Q.
And,
    again, you ignored Ms. Yorks evidence on that point; right?

A.
Yes.

Q.      Well,
    Im suggesting to you that its not enough, given what we discussed, just to
    tell the mother. He needs to write a detailed note, call the emergency
    department or another physician who hes referring the patient to and have that
    talk so that he makes sure that the baby is seen and that his advice is
    understood; do you not agree?

A.
         I think its clear that -- no, not entirely.
I think its clear that he
    did
. Its inconceivable that he didnt convey this, given the gravity of
    it, to the mother.
Its inconceivable that he didnt directly tell her to go
    to emergency.

Q.      Well,
    is it conceivable that a mother who brings the child to a doctor on a Saturday
    because of a cold or cough --

A.      Yes.

Q.      --
    is not going to go to the emergency, which is five to seven minutes away, when shes
    told your baby may have hydrocephalus, that this is a significant brain issue;
    do you think that is more conceivable?

A.      It does not sound
    usual to me, but its conceivable because
thats what happened.
[Emphasis added.]

(c)

The principles

[43]

Expert evidence carries with it the risk that a
    jury will inappropriately defer to the experts opinion rather than carefully
    evaluate it:
White Burgess Langille Inman v. Abbott and Haliburton Co
.,
    2015 SCC 23, [2015] 2 S.C.R. 182, at para. 17;
R. v. Mohan
, [1994] 2 S.C.R.
    9, at pp. 21-22. The test for admissibility of expert evidence consists of two
    steps. First, the proponent of expert evidence must establish that four
    conditions are met in order to establish its admissibility: relevance;
    necessity in assisting the trier of fact; absence of an exclusionary rule; and
    a properly qualified expert. The second stage of the inquiry requires the trial
    judge to conduct a cost-benefit analysis to determine whether otherwise
    admissible expert evidence should nevertheless be excluded because its
    probative value is outweighed by its prejudicial effect.

[44]

The ultimate conclusion as to the credibility or
    truthfulness of a particular witness is for the trier of fact, and it is not
    the proper subject of expert opinion. The rationale for this policy is that credibility
    is a notoriously difficult problem, and a frustrated jury may readily accept an
    experts opinion as a convenient basis upon which to resolve its difficulties:
    see
R. v. Marquard
, [1993] 4 S.C.R. 223, at p. 248. In addition, one
    of the central dangers of expert evidence is that finders of fact, and juries
    in particular, may be too ready to rely on experts who appear to be
    knowledgeable, credible and reliable. Doherty J.A. explained this danger in
R.
    v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal
    refused, [2010] S.C.C.A. No. 125:

Clearly, the most
    important risk is the danger that a jury will be unable to make an effective
    and critical assessment of the evidence. The complexity of the material
    underlying the opinion, the expert's impressive credentials, the impenetrable
    jargon in which the opinion is wrapped and the cross-examiner's inability to
    expose the opinion's shortcomings may prevent an effective evaluation of the
    evidence by the jury. There is a risk that a jury faced with a well-presented
    firm opinion may abdicate its fact-finding role on the understandable
    assumption that a person labelled as an expert by the trial judge knows more
    about his or her area of expertise than do the individual members of the jury.

[45]

It is well established that a trial judges role
    as gatekeeper is not exhausted once a particular expert has been permitted to
    testify on the basis of their qualifications and the content of their report:
    see
Bruff-Murphy v. Gunawardena
, 2017 ONCA 502, 138 O.R. (3d) 584, at
    paras. 62-66, leave to appeal refused, [2017] S.C.C.A. No. 343;
R. v.
    Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 46-47. Rather, the
    trial judge must protect the integrity of the process by ensuring that the
    expert does not overstep the acceptable boundaries in giving evidence. As
    Doherty J.A. stated in
Abbey
, at para. 62, it is essential that trial
    judges ensure both [a] cautious delineation of the scope of the proposed
    expert evidence and strict adherence to those boundaries, if the evidence is
    admitted.

[46]

However, even when the content and scope of an
    experts evidence is delineated in advance, the expert may stray in the course
    of their oral testimony. As Hourigan J.A. noted in
Bruff-Murphy
,

at
    paras. 62-63:

A trial judge in a civil jury case qualifying
    an expert has a difficult task. She must make a decision based on an expert
    report that will, in most cases, never be seen by the jury. While the report
    provides a roadmap of the anticipated testimony and specific limits may be
    placed on certain areas of testimony,
the trial judge obviously cannot predict with certainty the nature
    or content of the experts testimony.

Where, as here,
    the experts eventual testimony removes any doubt about her independence, the
    trial judge must not act as if she were
functus
. The trial judge
    must continue to exercise her gatekeeper function. After all, the concerns
    about the impact of a non-independent expert witness on the jury have not been
    eliminated. To the contrary, they have come to fruition.
At that stage, when the trial judge recognizes
    the acute risk to trial fairness, she must take action.
[Emphasis added.]

[47]

The continuing gatekeeping role means that trial
    judges must not only continue to ensure that the experts actual testimony does
    not overstep the appropriate scope of the expert evidence; they must also
    include ensuring that the experts testimony continues to be independent in the
    sense that the expert does not become an advocate for the party by whom they
    are called.

[48]

As Hourigan J.A. made clear in
Bruff-Murphy
,
    the continuing gatekeeper role of a trial judge includes the continuation of
    the residual discretion to exclude evidence when they are not satisfied that
    the testimonys probative value exceeds its prejudicial effect: at paras. 65-66;
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 50; and
R.
    v. Bingley
, 2017 SCC 12, [2017] 1 S.C.R. 170, at para. 30.

(d)

Application

[49]

There does not appear to have been anything
    inherently improper about Dr. Bruces opinion as to the applicable standard of
    care. I would note, however, that it is not clear that the issue was canvassed
    at the
voir dire
in the same manner as was the proposed evidence of
    Dr. Fleming, which was excluded in its entirety because the trial judge
    concluded that it was not independent. Rather, it seems that the appellants consented
    both with respect to Dr. Bruces qualifications and the content of his report.
    The appellants do not argue that Dr. Bruce should not have been permitted to
    give expert evidence from the outset. However, they argue, and I accept, that as
    the extracts above demonstrate, Dr. Bruce opined on the credibility of the
    parties in his oral testimony, indicating that he believed the respondents and
    not Ms. York. The credibility and reliability of Ms. York and the two doctors
    were central issues for the jury to decide.

[50]

There were a number of problems with Dr. Bruces
    evidence as given.

[51]

First, it illustrates one of the dangers of
    expert evidence that oversteps its boundaries: the risk that a jury, faced with
    difficult issues of credibility and reliability and a well-presented expert
    opinion, will abdicate its fact-finding role on the understandable assumption
    that a person labelled as an expert by the trial judge knows more about his or
    her area of expertise than do the individual members of the jury: see
Abbey
,
    at para. 90; see also
Marquard
, at p. 248. Dr. Bruce exceeded his role
    as an expert when he opined on the credibility and reliability of the doctors
    and Ms. York, for example observing that Ms. York was untruthful and could not
    remember accurately. There was a risk that the members of the jury would accept
    Dr. Bruces credibility and reliability assessments, rather than assess the
    evidence of the witnesses and reach their own conclusions.

[52]

Second, the expression of an opinion as to the
    credibility of witnesses is also a breach of the experts duty to be
    independent. Dr. Bruce acknowledged in his evidence that in rendering his
    opinion on standard of care, he disregarded Ms. Yorks evidence and assumed
    that the doctors evidence was credible and reliable. I do not accept the
    respondents argument that all Dr. Bruce was doing was making assumptions as
    the questions put to him asked him to do. As the extracts above indicate
    particularly its conceivable because thats what happened  it is clear that
    in some critical instances he was giving evidence about what actually happened,
    based on his view of the credibility of the witnesses. His testimony extended
    well beyond expressing opinions based on hypothetical facts he was asked to
    assume. For these reasons, this evidence was not admissible and to the extent
    his testimony opined on the credibility of the witnesses, it should have been
    excluded. These circumstances called for the trial judge to exercise her
    gatekeeping role and her residual discretion to exclude this evidence.

[53]

I do not agree with the respondents that the
    appellants closing submissions were adequate to address any prejudice caused
    to the appellants by the impugned aspects of Dr. Bruces evidence. Nothing that
    the appellants could have said in their closing would have had the force of a
    clear instruction from the trial judge to the effect that the impugned aspects
    of Dr. Bruces evidence were inadmissible. Juries are told that the trial judge
    is the judge of the law, and that they are to take their instructions from the
    trial judge. What the appellants said was simply argument.

[54]

I also do not accept the respondents submission
    that the final charge contained the necessary warnings. The vast majority of
    the cautions to which the respondents refer are contained in the general
    section of the charge and applied to all of the expert witnesses. The trial
    judge had explained to the jury how to assess the credibility and reliability
    of a witnesss evidence, with additional instructions on weighing expert
    opinions. The jury was told to consider whether the expert struck them as being
    honest, impartial, and fair, and told that they could reject an experts
    opinion if they found the facts to be different from those which formed the
    basis for the experts opinion. These general instructions came fairly early on
    in the charge, in what is often referred to as the boilerplate portion, with
    no reference to any of the individual experts who testified. The trial judge went
    on to give instructions on the burden of proof, an overview of the facts, and instructions
    on the legal principles for the standard of care before reviewing the lay
    witness and expert evidence on standard of care and recapping the instructions
    on weighing expert opinion.

[55]

There was no specific caution about Dr. Bruces
    testimony on the issue of his view of the credibility and reliability of Ms.
    York. The trial judge did, in her summary of the parties evidence, include the
    following:

On cross-examination, Dr. Bruce testified that
    he had read the transcripts of the examinations for discovery and in coming to
    his opinions had accepted Dr. Conleys evidence. He did not accept anything
    that Kim said as she was probably mistaken, nor did he reference any of John
    Parliaments evidence.

On cross-examination, Dr. Bruce testified that
    he accepted Dr. Parks evidence over Kim Yorks evidence. Dr. Bruce stated that
    its inconceivable that he didnt convey this given the gravity of it to the
    mother.

When asked whether it was conceivable that a
    mother would not take her child to the emergency department when faced with a
    potential hydrocephalus or brain injury, Dr. Bruce stated:

It does not
    sound usual to me. Its conceivable because thats what happened.

[56]

However, there was, in short, nothing in the
    charge instructing the jury to disregard Dr. Bruces evidence in relation to
    the credibility and reliability of the two doctors and Ms. York.

(e)

What should the trial judge have done?

[57]

There are two steps that the trial judge could have
    taken at the time that Dr. Bruce was testifying. First, she could have, in the
    absence of the jury, invited submissions from the parties as to the content of
    a mid-trial instruction that the jury ignore any and all of his expressions as
    to the credibility or reliability of the witnesses. Second, she could have
    included a very clear and specific instruction in the final charge on the
    point. The general comment that it was entirely up to the jury to decide [h]ow
    much or how little [they] believe of or rely upon an experts opinion was wholly
    inadequate given the risk that the jury would place undue weight on Dr. Bruces
    opinion. Given the large number of expert and lay witnesses who testified at
    trial, nothing less than a clear and specific instruction that Dr. Bruces credibility
    opinions were inadmissible and should be ignored would suffice.

[58]

The failure to so instruct the jury was a
    serious error on the part of the trial judge, despite the fact that the appellants
    counsel did not ask for either a mid-trial or a closing instruction. In this
    case, the trial judge should have delivered a prompt and clear mid-trial
    instruction during Dr. Bruces testimony and reiterated this instruction in the
    final charge. I recognize that both steps might not be necessary in all cases,
    but it was necessary in this case, given the highly prejudicial nature of the
    impugned aspects of Dr. Bruces evidence to the appellants case and the fact
    that the jury heard a great deal of additional evidence on subjects other than
    the standard of care after he testified.

[59]

The defence called approximately five witnesses
    on causation and six on damages over the next few weeks. This was not a short,
    one issue trial in which it might have been reasonable to think that the
    evidence would be fresh and that a caution in the final charge would suffice,
    or that a mid-trial caution would have sufficed in the absence of a final
    instruction that reiterated the caution. The circumstances of this trial,
    including the number of experts, its length, and the complexity of the evidence
    on a range of issues required that this instruction be given both when Dr.
    Bruce overstepped his role as an expert when giving his evidence and in the
    course of the final instructions.

(2)

Is the failure to raise the issue of Dr. Bruces
    impartiality before the trial judge fatal on this appeal?

[60]

Dr. Bruces expert evidence was admitted at the
    outset on consent. There were no objections by the appellants trial counsel to
    Dr. Bruces evidence in chief, apart from a brief objection to require Dr.
    Bruce to stay within the parameters of his report when opining on the
    significance of a childs weight, nor to the absence of any specific reference
    in the charge to Dr. Bruces lack of impartiality or bias.

(a)

Positions of the Parties

[61]

The respondents argue that the appellants should
    be precluded from raising the issue of the admissibility of Dr. Bruces
    evidence on appeal because they failed to object at trial to both the evidence
    and the jury charge. Their failure to object should be given considerable
    weight and should be fatal to their appeal. The appellants claim that Dr.
    Bruces bias was evident in his reports. The respondents also claim that the fact
    that the appellants challenged Dr. Flemings independence after Dr. Bruce had
    testified demonstrated that they were alive to the issue of Dr. Bruces bias in
    the course of the trial. Put another way, the respondents argue, the appellants
    made a conscious choice not to object to Dr. Bruces qualification, and there was
    no miscarriage of justice in this case to warrant ordering a new trial. As long
    as there is some evidence to support the jurys verdict, it should not be set
    aside. It was open to the jury to disbelieve the evidence of the appellants and
    to conclude that negligence was not proven on a balance of probabilities.

[62]

The appellants submit that a substantial wrong
    or miscarriage of justice occurred in this case and that a new trial is
    warranted, despite their failure to object at trial. The integrity of the
    administration of justice requires that expert witnesses honour their
    obligations. There was a real danger that Dr. Bruces inappropriate credibility
    and veracity assessments improperly influenced the jury. The jurys verdict was
    tainted by improper evidence and must be set aside.

(b)

The principles

[63]

The general principle is that a party in a civil
    case should not bring an appeal on the basis of some aspect of the lower court
    proceeding to which it did not object: see
Marshall v. Watson Wyatt &
    Co.
(2002), 209 D.L.R. (4th) 411 (Ont. C.A.), at para. 15;
Harris v.
    Leikin Group Inc.
, 2014 ONCA 479, 120 O.R. (3d) 508, at para. 53; and
Maurice
    v. Alles
, 2016 ONCA 287, 130 O.R. (3d) 452, at para. 25. A partys failure
    to object at trial weighs heavily against that party now bringing an appeal
    because it indicates that trial counsel did not consider that point to be
    important or of sufficient consequence to require an objection: see
Arland
    and Arland v. Taylor
, [1955] 3 D.L.R. 358 (Ont. C.A.), at p. 361;
Marshall
,
    at para. 15.

[64]

An appellant cannot ask for a new trial as of
    right due to an error during the trial when no objection was made on the point
    at trial. The failure to have objected at trial is not treated lightly by an
    appellate court and is usually fatal to an appeal on that point: see
Arland
,
    at p. 361;
G.K. v. D.K.
, 1999 CanLII 935 (Ont. C.A.), at para. 15,
    leave to appeal refused, [2000] S.C.C.A. No. 415;
Marshall
, at para.
    15.

[65]

This principle has been invoked in connection
    with an appellants failure at trial to object to a jury instruction or charge:
    see e.g.
Bruff-Murphy
, at para. 69;
Pietkiewicz v. Sault Ste.
    Marie District Roman Catholic Separate School Board
, 2004 CanLII 874 (Ont.
    C.A.), at para. 22. It is also applicable on the issue of the admissibility of
    evidence, as an objection to the admissibility of evidence on appeal will not
    usually succeed unless the objection is made at trial: see
Hoang v.
    Vicentini
, 2016 ONCA 723, 352 O.A.C. 358, at para. 63;
Marshall
at paras. 15, 30; and Sidney N. Lederman, Alan W. Bryant and Michelle K.
    Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed.
    (Toronto: LexisNexis Canada, 2018), at para. 2.109.

[66]

A new trial may be ordered in such cases,
    however, when the court is satisfied that a new trial is necessary in the
    interests of justice: see
Arland
, at p. 361;
Marshall
at
    para. 15. When an objection is made on appeal that was not made at trial, the
    focus should be on the question of whether a substantial wrong or miscarriage
    of justice has occurred: see
Marshall
at paras. 14-15;
Arland
at pp. 364-65;
Pietkiewicz
at paras. 22-28.

[67]

In sum, this court can exercise its discretion
    to grant a new trial or other remedy despite the failure of the appellants to
    object to the jury charge or the admissibility of Dr. Bruces evidence if it
    finds that the errors alleged by the appellants were errors that constituted a
    substantial wrong or miscarriage of justice and that the interests of justice
    require granting relief.

(c)

Did the errors constitute a substantial wrong or
    miscarriage of justice?

[68]

As I have indicated above, the trial judge
    erred in failing to advise the jury that it could not consider Dr. Bruces
    evidence on the respective credibility and reliability of the parties.

[69]

It is not possible to assess with any certainty
    the impact of Dr. Bruces evidence. That, however, misses the point, which is
    whether there has been a miscarriage of justice in this case. Given the
    centrality of credibility in this case, and the absence of any caution about
    Dr. Bruces evidence (apart from summarizing the appellants cross-examination
    of Dr. Bruce), there is a very real possibility that Dr. Bruces evidence on
    credibility and reliability played a significant role in the jurys decision to
    find that the standard of care was met by both doctors during the October and
    November visits.

[70]

As Hourigan J.A. wrote in
Bruff-Murphy
at para. 72, [t]his court has a responsibility to protect the integrity of the
    justice system. This is not a no harm, no foul situation. The sole witness
    for the respondents on the issue of standard of care exceeded the admissible
    scope of his evidence and opined on the credibility of the witnesses, which was
    highly prejudicial to the appellants. The impugned evidence tainted the jurys
    verdict and the verdict must be set aside.

[71]

For these reasons, I conclude that there has
    been a miscarriage of justice and a new trial is required.

E.

Disposition

[72]

I would allow the appeal, set aside the judgment
    below, and order a new trial. Costs of the appeal in the agreed amount of $25,000
    are payable by the respondents to the appellants. The parties advised us that
    they had an agreement on the costs below so it is unnecessary for us to address
    those.

Released: April 26, 2021 G.H.

A. Harvison Young J.A.

I agree Grant Huscroft J.A.

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