COURT OF APPEAL FOR ONTARIO

CITATION: Barber v. Humber River Regional Hospital, 2016 ONCA
    897

DATE: 20161128

DOCKET: C60824 and M46222

Cronk, Juriansz and Roberts JJ.A.

BETWEEN

Annette Barber,
    Ashton Jessica Barber, by her

Litigation
    Guardian, Annette Barber, and Kristyanna Sauder

Plaintiffs (Respondents)

and

Humber
    River Regional Hospital, Derrick Chang,

David
    John Shergold,
Virat Joshi
, Stephen Allan Glazer,

Her
    Majesty the Queen in Right of the Province of Ontario and

The
    Superintendent of the Toronto West Detention Centre

Defendants (
Appellant
)

Erica J. Baron, Sam Rogers and Jordan Katz, for the
    appellant

Aleks Mladenovic, David R. Neill and Esther J. Roche,
    for the respondents

Heard: May 24, 2016

On appeal from the judgment of Justice Mary A. Sanderson of
    the Superior Court of Justice, dated July 7, 2015.

Cronk J.A.:

[1]

Mark Barber died on February 17, 2006 at Humber River Regional Hospital (the
    Hospital) in Toronto from pneumococcal bacterial meningitis.  He was 46 years
    of age.  The respondents, his surviving wife and two daughters, sued two emergency
    room (ER) physicians, the appellant Dr. Virat Joshi, and Dr. David John
    Shergold, in negligence, alleging that Mr. Barbers death resulted from their
    failure to properly investigate, diagnose and treat his meningitis.
[1]

[2]

The trial judge found that, in his care and treatment of Mr. Barber, Dr.
    Joshi fell below the applicable standard of care in three respects: first, by failing
    to adequately consider the possibility that Mr. Barber had meningitis at 10:00
    a.m. on February 13, 2006 when Dr. Joshi first examined him (the 10:00 a.m.
    Assessment) and in failing to include meningitis in his differential
    diagnosis; second, by failing to do a spinal tap or lumbar puncture to rule out
    the possibility of meningitis; and third, by still failing to suspect and
    diagnose meningitis and treat it appropriately at 12:30 p.m. on February 13th when
    Dr. Joshi assessed Mr. Barber a second time.  The trial judge further found
    that causation had been established as against Dr. Joshi because it was more
    likely than not that, but for his failure to diagnose and properly treat Mr.
    Barbers bacterial meningitis at the 10:00 a.m. Assessment, Mr. Barber would
    not have died or suffered serious neurological sequelae.

[3]

The trial judge dismissed the action against Dr. Shergold, concluding
    that while he, too, had breached the standard of care in several respects, the
    respondents had failed to demonstrate a causal link between his actions and Mr.
    Barbers death.

[4]

Dr. Joshi appeals from the liability finding against him, arguing that
    the trial judge erred in both her standard of care and causation analyses.  He
    also seeks leave to appeal that part of the trial judges costs ruling that
    requires him to pay the costs found to be owing to Dr. Shergold.  For the
    reasons that follow, I would dismiss the appeal, grant leave to appeal costs,
    and dismiss the costs appeal.

Background

[5]

On January 31, 2006, Mr. Barber surrendered into police custody in
    relation to various fraud charges.  Following his surrender, he was detained at
    the Metro West Detention Centre in Toronto, to await trial.

[6]

Sometime before February 13, 2006, Mr. Barber became ill.  He was brought
    by ambulance to the Hospital at 9:17 a.m. on February 13th, with a history of
    fever and complaining of chest pain.  He was first assessed by nursing staff
    and then by Dr. Joshi at the 10:00 a.m. Assessment and again at 12:30 p.m. and
    2:00 p.m.  Dr. Joshi provisionally diagnosed Mr. Barber as suffering from
    pneumonia and prescribed 400 milligrams of Avelox (also known as Moxifloxacin),
    a broad spectrum antibiotic, to treat the pneumonia.  He did not suspect or
    investigate meningitis or order treatment for it.  He discharged Mr. Barber from
    the Hospital with orders to follow a course of Avelox for pneumonia, Tylenol
    for fever, and maintain fluid intake.

[7]

Mr. Barber was returned to the detention centre where he remained for
    about seven hours.  However, he was brought back to the Hospital at approximately
    midnight, after the results of Hospital blood tests revealed bacteria in his
    blood.  His illness progressed and, several hours later, he was diagnosed with pneumococcal
    bacterial meningitis.  He remained gravely ill for the next few days and
    eventually succumbed to meningitis on February 17, 2006.

[8]

At trial, both sides led expert evidence on the applicable standard of
    care and causation.  The respondents called Dr. Ignatius Fong, an infectious
    disease specialist, and Dr. Edwin Brankston, an emergency medicine expert, to
    provide opinion evidence on the applicable standard of care and causation.  Dr.
    Joshi relied on the expert evidence of Dr. David Boushy, also an emergency
    medicine expert, on the standard of care, and the testimony of Dr. Jeff Powis,
    an infectious disease specialist, and Dr. David Juurlink, a specialist in
    toxicology, pharmacology and internal medicine, on causation.

[9]

There was no dispute among the experts that bacterial meningitis is a serious
    and sometimes deadly disease.  After onset and without proper treatment, it can
    result in relatively rapid death.

[10]

The issue of the appropriate drugs to treat bacterial meningitis and
    their comparative effectiveness in combatting the disease were matters of
    considerable controversy at trial.  On the trial judges findings, the standard
    treatment for meningitis in 2006 consisted of the administration of two
    antibiotics, Ceftriaxone and Vancomycin, in combination with Decadron, an
    anti-inflammatory steroid, either at the same time or just before the
    administration of the antibiotics (the Standard Treatment).  The trial judge also
    found that Avelox can be effective as a second-line, but inferior, treatment
    for meningitis in some circumstances.  I did not understand Dr. Joshi to
    challenge these factual findings before this court.

[11]

Mr. Barbers overall medical condition and his mental status prior to
    and on arrival at the Hospital on February 13, 2006 and, especially, at the 10:00
    a.m. Assessment, were central to the determination of the negligence
    allegations against Dr. Joshi.  Mr. Barbers mental status was crucial because,
    on the expert evidence at trial, a history of an altered level of
    consciousness, coupled with a fever, could signify inter-cranial pressure in
    the brain or meningitis.  It is therefore necessary to briefly review the pertinent
    medical evidence on these issues.

(1)

Observations at Detention Centre

[12]

At the time of his intake at the detention centre on January 31, 2006, Mr.
    Barber was examined by Dr. Mueller, who performed a routine physical
    examination.  Dr. Mueller recorded Mr. Barbers history of chest pain,
    shortness of breath, coronary artery disease, angioplasty and hypertension.  On
    February 7, 2006, Mr. Barber claimed that he was too ill to attend court and
    asked to see a doctor.  On February 8, after he attended court, he was taken to
    Toronto General Hospital with complaints of chest pain.  Staff at that hospital
    recorded him as having a fever of 39.9° C and being alert and oriented to person,
    place and time.  After assessment and treatment, he was returned to the
    detention centre.

[13]

Between February 9 and February 12, 2006, Mr. Barbers temperature
    ranged from 38.2° C to 39.8° C and his blood pressure was elevated, fluctuating
    between 210/160 and 200/100.  He was prescribed a nitroglycerin patch and
    Tylenol was repeatedly administered.

[14]

Mr. Barber was scheduled to again attend court on February 13, 2006.
    The detention centre records indicated that Dr. Mueller examined him at 8:00
    a.m., noting that he had T [temperature] 39° C.  Fever times 3-4 days with
    cough.  Not saying much.  Hyperventilating.  Dry mouth  Unable to give date
    and place; Inspiratory crackles, [blood pressure] 150/90  pneumonia and
    dehydration.  Dr. Mueller concluded that Mr. Barber was too ill to attend
    court and ordered him transferred to the Hospital for further assessment.  In his
    health care consultation note, which accompanied Mr. Barber to the Hospital, Dr.
    Mueller stated: Please see re fever, decreased level of consciousness x 2 [days],
    dry tongue, left inspiratory chest crackles.

(2)

Paramedics Observations

[15]

An ambulance and paramedics arrived at the detention centre at 8:40 a.m.
    on February 13th.  The paramedics noted in their ambulance call report that Mr.
    Barber was being sent to the Hospital due to a two-day history of fever,
    decreased level of consciousness and dry mouth.  They also indicated that he
    was alert and oriented, had no visual field abnormalities, dizziness or head or
    neck problems, and that he had a temperature of 37.6° C.

[16]

Enroute to the Hospital, the paramedics recorded that Mr. Barber was
    complaining of chest pain, that he was diaphoretic (sweaty), and that he was not
    co-operative and was unwilling or unable to answer questions, thereby preventing
    a thorough assessment.  At 8:43 a.m., they recorded his blood pressure as
    170/100 and his temperature as 37.6° C.  Fifteen minutes later, his temperature
    was 37.9° C and his blood pressure had increased to 183/113.  The paramedics
    also performed a test known as a Glasgow Coma Scale (GCS), which measures a
    patients mental status by assessing motor responses, verbal skills and eye
    response, scored out of a total of 15.  Mr. Barber had two perfect GCS scores
    (15/15), at 8:43 a.m. and 8:58 a.m.

(3)

Nursing Observations

[17]

On arrival in the ER, Mr. Barber was assessed by a triage nurse at 9:17
    a.m.  She recorded his chief complaint of chest pain and charted that he had an
    ashen skin colour, a diaphoretic (sweaty) brow, an elevated blood pressure of
    187/113, a temperature of 37.9° C, and a respiratory rate of 22 breaths per
    minute.  She also noted that he was non-communicative and uncooperative.  Mr.
    Barber was placed in a telemetry (monitoring) room where his heart rate and
    oxygen saturation could be monitored in real time.

[18]

At 9:55 a.m., a second nursing assessment was conducted.  This nurse
    charted that Mr. Barber was short of breath and very sweaty, that he had an
    increased respiratory rate of 29-35 breaths per minute, decreased air entry and
    crackles/rales in his left lung, that he was reporting intermittent chest pain
    that he described as heavy, and that his history was vague and he was unable
    to focus on conversation.  The nurse also recorded that Mr. Barber was alert
    and oriented x 3, and then crossed out that latter entry, suggesting that he
    was not oriented to person, place and time.  Five minutes later, at 10:00 a.m.,
    Mr. Barber continued to have a temperature of 37.9° C.  He also had a pulse
    rate of 80, an increased respiratory rate of 40 breaths per minute and blood
    pressure of 175/96.

(4)

10:00 a.m. Assessment

[19]

Dr. Joshi first examined Mr. Barber at 10:00 a.m. on February 13th.  He testified
    that he conducted a focused physical examination and a mental examination of
    Mr. Barber, including assessments of his neurological, respiratory and
    cardiovascular status.  Dr. Joshi recorded Mr. Barber as having a cough, a
    temperature of 37.9° C, a heart rate of 90 beats per minute (within the normal
    range), a respiratory rate of 20 breaths per minute and elevated blood pressure
    of 178/90.  He noted that Mr. Barber was feverish, thirsty, and had dry mucous
    membranes and coarse respiratory crackles at the base of his left lung,
    consistent with pneumonia.  He also charted a GCS score of 14/15, reduced by
    one point on the verbal scale, noting that Mr. Barber was confused.

[20]

Dr. Joshi provisionally diagnosed Mr. Barber with pneumonia.  He undertook
    investigations for pneumonia and to rule out cardiac problems by ordering a
    chest x-ray, sputum and blood cultures and cardiac blood tests.  He also
    ordered a bolus dose of intravenous normal saline for dehydration, a 400
    milligram intravenous dose of Avelox for the suspected pneumonia, and Tylenol
    and Ibuprofen for Mr. Barbers underlying fever.  Critically, he did not suspect,
    diagnose or investigate possible meningitis.

[21]

At trial, Dr. Fong testified that, by the 10:00 a.m. Assessment, Mr.
    Barber likely already had bacterial meningitis.  He noted that, by the morning
    of February 13th, Mr. Barber had a documented history of fever, a decreased
    level of consciousness, an ashen appearance, had not been oriented to person,
    place and time, was sweating profusely and was uncommunicative.  Given these
    symptoms, it was Dr. Fongs opinion that Mr. Barber was exhibiting signs of
    brain dysfunction, mandating a full examination of his head and neck, an assessment
    of his level of consciousness, and, unless contra-indicated, the performance of
    a lumbar puncture to rule out the possibility of meningitis.

[22]

Certain of the defence expert evidence was consistent with this
    conclusion.  Dr. Powis conceded that, by about 9:36 a.m. on February 13th, Mr.
    Barber already had bacteria in his blood, although he (Dr. Powis) did not know
    exactly when it spread to his brain, and that sufficient clinical evidence was
    present at 10:00 a.m. to consider a differential diagnosis of bacterial
    meningitis.  Dr. Juurlink said that it was very likely that the bacteria in Mr.
    Barbers blood had already reached his brain at about the time his blood
    cultures were drawn.  In contrast, Dr. Brankston testified that, while Mr.
    Barber was not exhibiting symptoms of meningitis at 10:00 a.m., he was very
    sick and should have been admitted to the Hospital.

[23]

Dr. Joshi disagreed.  He testified that Mr. Barber was not exhibiting
    any signs or symptoms of meningitis and did not have a decreased level of
    consciousness at 10:00 a.m. or, indeed, at any point during Dr. Joshis interactions
    with him.  Dr. Joshi did acknowledge that his own note from the 10:00 a.m. Assessment
    indicated that Mr. Barber was confused.  However, he maintained that
    confusion does not equate to a decreased level of consciousness.  The former
    term, Dr. Joshi said, relates to cognition, while the latter term connotes
    alertness or arousal.  I will turn to the issue of the significance of Dr.
    Joshis notation of confusion later in these reasons.

[24]

Dr. Joshi testified that he considered three possible explanations for
    Mr. Barbers confusion: i) an infective process, like pneumonia; ii) fever; or
    iii) decreased fluid intake/dehydration.  He acknowledged that he did not
    consider the possibility of meningitis, did not include it in his provisional
    diagnosis, and did not order a lumbar puncture to rule it out.

(5)

Re-assessments and Discharge

[25]

The saline bolus for dehydration was started shortly after 10:00 a.m. on
    February 13th.  At 10:20 a.m., Mr. Barber received the intravenous Avelox for
    pneumonia prescribed by Dr. Joshi.  Tylenol was administered at 10:30 a.m. for
    fever.

[26]

A further nursing assessment was conducted at 11:25 a.m.  Mr. Barber
    continued to be diaphoretic and had an increased respiratory rate of 42 breaths
    per minute with shallow breathing, an elevated blood pressure of 176/98 and a
    temperature of 36.2° C.  While the nurse recorded that Mr. Barber remains
    alert, she did not note his orientation to person, place and time.  Nor did
    she undertake a neurological assessment.  Saline was administered again at
    12:05 p.m.

[27]

Dr. Joshi assessed Mr. Barber for a second time at 12:30 p.m. and
    ordered repeat blood tests of Mr. Barbers cardiac marker (troponin) levels.  He
    recorded a slight improvement in Mr. Barbers breathing and a temperature of
    36.1° C, but did not record his respiratory rate.  Contrary to the nursing
    observation at 11:25 a.m. (a respiratory rate of 42 breaths per minute), Dr.
    Joshi testified that Mr. Barbers respiratory rate was normal at 12:30 p.m. and,
    for this reason, he made no note of it.  Similarly, Dr. Joshi stated that he
    did not record Mr. Barbers mental status at 12:30 p.m. because there was no
    abnormality.  In his view, whatever confusion Mr. Barber may have had at 10:00
    a.m. had resolved and was no longer present.

[28]

By 2:00 p.m., the results of the further blood work were available, Mr.
    Barbers troponin levels were normal, and Dr. Joshi concluded that he should be
    discharged.  Mr. Barber was discharged at 2:40 p.m., with orders to take 400 milligrams
    of Avelox orally, Tylenol orally for fever, and maintain fluid intake.  Between
    12:30 p.m. and his discharge at 2:40 p.m., no vital signs other than
    temperature were recorded on Mr. Barbers chart.  By about 3:30 p.m., he had
    been returned to the detention centre.

(6)

Observations on Return to Detention Centre

[29]

The defence argued at trial that Mr. Barbers vital signs and mental
    status between 3:30 p.m. and 10:40 p.m. were normal.  However, the nursing
    notes made on Mr. Barbers arrival at the detention centre at 3:30 p.m.
    indicated that his respiratory rate was 16 breaths per minute and laboured,
    his temperature was 36.7° C, he was sweating profusely, his blood pressure
    was elevated at 160/90, and he was scheduled to see a doctor the following
    morning.

[30]

Mr. Barber was assessed again at 8:00 p.m.  At that time, Nurse Enza DeToma
    recorded his temperature as 35.3° C.  On March 24, 2006, approximately six
    weeks later, she expanded on her recorded observations in an occurrence report
    at the request of the superintendent of the detention centre.  In that report,
    she indicated that, at 8:00 p.m., she had found Mr. Barber to be alert,
    oriented to person, place and time, in no distress and without any complaints.
    At trial, she elaborated that his skin colour and his respiratory rate were
    both normal.

[31]

At 8:15 p.m., detention centre staff were informed that blood cultures
    taken earlier in the day at the Hospital had tested positive for bacteria, most
    likely streptococcus bacteria, and that, as a result, Mr. Barber was to be
    returned to the Hospital immediately.  Detention centre staff left with Mr.
    Barber at 10:40 p.m.   Shortly before his departure, Nurse DeToma reassessed
    Mr. Barber, noting no complaints.  She recorded his temperature as 35° C.

[32]

Mr. Barber arrived back at the Hospital at 11:43 p.m. where he was again
    assessed by an ER triage nurse.  In her note at 11:59 p.m., the triage nurse
    recorded that Mr. Barber was alert, oriented and cooperative, with regular and
    effortless breathing and normal skin colour.  She noted his temperature as 36.5° C,
    his pulse as 79, his respiratory rate as 18 breaths per minute and, his blood
    pressure as 166/111.

[33]

Mr. Barber was examined by Dr. Shergold at 3:15 a.m. on February 14th.
    The trial judge held that his assessment of Mr. Barber fell below the standard
    of care in several respects.  At approximately 10:00 a.m. on February 14th, Mr.
    Barber was diagnosed with meningitis and Standard Treatment was initiated.
    However, his condition did not improve and he went on to suffer two cardiac
    arrests in the late evening of February 14th.  He was resuscitated and
    intubated but remained comatose and gravely ill.  He passed away at 5:51 p.m.
    on February 17, 2006, after having been taken off life support.  His
    post-mortem examination revealed his cause of death as bacterial meningitis.

Trial Judges Decision

[34]

Contrary to Dr. Joshis account at trial, the trial judge held that
    multiple signs and symptoms of meningitis were evident at the 10:00 a.m.
    Assessment.  These included continuing confusion, a decreased level of
    consciousness, a history of fever together with decreased consciousness, a very
    unwell appearance, pneumonia and elevated respiratory rates.  She held that Dr.
    Joshi should have recognized and considered these signs and symptoms and that
    he breached the standard of care from the time of his first assessment of Mr.
    Barber, by failing to adequately investigate, examine, test for and treat
    meningitis.

[35]

In so holding, the trial judge accepted Dr. Fongs evidence that, given Mr.
    Barbers documented history and presenting condition at the 10:00 a.m.
    Assessment, including his condition as noted by Dr. Joshi, Dr. Joshi was
    required to specifically consider the possibility that meningitis was the
    explanation for Mr. Barbers confusion and to include meningitis in his
    differential diagnosis.  Instead, Dr. Joshi focused on Mr. Barbers cardiac
    status, rather than on his existing confusion and his history of a decreased
    level of consciousness and underlying fever.

[36]

The trial judge also accepted Dr. Fongs evidence that Dr. Joshi should
    and could have done a lumbar puncture at the 10:00 a.m. Assessment to rule out
    possible meningitis.  She held that, if Dr. Joshi had done a lumbar puncture, Mr.
    Barbers spinal fluid would have revealed the presence of meningitis and
    Standard Treatment would have commenced immediately with the administration of
    Ceftriaxone, Vancomycin and Decadron.

[37]

The trial judge reached a similar conclusion regarding Dr. Joshis 12:30
    p.m. assessment of Mr. Barber.  She found, at para. 384, that Dr. Joshis
    conduct continued to fall below the standard of care at that time because he
    failed to suspect meningitis, include it in his differential diagnosis, examine
    and test, do a lumbar puncture, diagnose meningitis [and] treat meningitis
    appropriately.

[38]

Finally, the trial judge concluded that the respondents had met their
    onus to establish causation as against Dr. Joshi with respect to the 10:00 a.m.
    Assessment.  She stated, at para. 513 of her reasons:

In

summary,

on

the

basis

of

the medical literature and
    the evidence of Fong that Barber would likely have survived without significant
    neurological deficit if he had been treated with Decadron, Ceftriaxone and Vancomycin
    shortly after 10 AM on February 13, 2006, given Barbers absence of poor
    prognostic factors at 10 AM other than a history of pneumonia, I find that the
    plaintiffs have satisfied the onus of proving that more likely than not, but
    for the negligence of Joshi in failing to diagnose and properly treat bacterial
    meningitis at 10:00 AM on February 13, Barber would not have died or suffered
    serious neurological sequelae.

Issues

[39]

The appellant argues that the trial judge erred in assessing the
    negligence allegations against him:

(i)

by finding that, at the time of the 10:00 a.m. Assessment on February
    13, 2006, Mr. Barber had confusion caused by bacterial meningitis;

(ii)

by
    relying exclusively on Dr. Fongs opinion evidence to find that the appellant
    breached the applicable standard of care; and

(iii)

by
    failing to assess causation with the benefit of hindsight.

[40]

Dr. Joshi also seeks leave to appeal and, if leave is granted, appeals
    from that part of the trial judges costs ruling requiring him to pay the sum
    of $43,000 in costs, which the respondents were found to owe to Dr. Shergold in
    light of his successful defence of the action.

Analysis

(1)

Reasonableness of Finding of Confusion Caused by Bacterial Meningitis

[41]

Dr. Joshi attacks the trial judges finding that Mr. Barber had
    confusion caused by bacterial meningitis at the 10:00 a.m. Assessment on
    several grounds.  As set out in his factum, he contends that the trial judge:

[R]ejected the evidence of all witnesses who observed Mr.
    Barber and all contradictory medical records, instead accepting a factual
    assumption of an expert witness [Dr. Fong] who ignored key aspects of the
    medical records in arriving at his conclusion.  While she was not required to
    accept that evidence, she was required to consider it and provide a cogent
    rationale for rejecting it.

I would not accept this contention.

[42]

At the outset, I emphasize that deference is owed by this court to the
    trial judges factual findings regarding Mr. Barbers mental status, which were
    based on her appreciation and assessment of the evidence.  Absent palpable and
    overriding error, appellate interference with these findings is precluded.

[43]

I see no such error in the trial judges finding that, by the time of
    the 10:00 a.m. Assessment, Mr. Barber was suffering from confusion caused by
    bacterial meningitis.  In my opinion, this critical factual finding was open to
    the trial judge on the record before her and was firmly grounded in the
    evidence.  I say this for the following reasons.

(a)

Evidentiary Support for Finding of Confusion

[44]

First, contrary to Dr. Joshis argument, I do not agree that Dr. Fongs
    evidence regarding Mr. Barbers mental status at the 10:00 a.m. Assessment was
    based on a factual assumption or impression of a level of consciousness that
    had no support in the evidence.  By the time of the 10:00 a.m. Assessment, Mr.
    Barbers medical records contained numerous entries consistent with a patient
    experiencing a decreased level of consciousness or altered mental status.
    Recall that:

(i)

Dr. Mueller had recorded on the transfer of Mr. Barber to the Hospital
    that he had a history of fever and a decreased level of consciousness for two
    days, as well as left inspiratory chest crackles;

(ii)

the
    paramedics had noted that Mr. Barber was being sent to the Hospital for a
    two-day history of fever and a decreased level of consciousness, among other
    things, and that, while enroute to the Hospital, they had been unable to
    conduct a thorough assessment of him because he was unwilling or unable to
    answer questions;

(iii)

the ER
    triage nurse noted at 9:17 a.m. that Mr. Barber had

an

ashen colour
    and was non-communicative and uncooperative; and

(iv)

the secondary
    nursing assessment at 9:55 a.m. recorded that Mr. Barbers history was vague
    and he was unable to focus on conversation.  Notably, this assessment was made
    only five minutes before Dr. Joshis own examination of the patient.

[45]

Dr. Joshi acknowledged at trial that all these records, save only for
    Dr. Muellers transfer note,
[2]
were available to him when he first saw Mr. Barber at 10:00 a.m. Moreover, and
    importantly, Dr. Joshi himself observed and charted that Mr. Barber was
    confused at the 10:00 a.m. Assessment.

[46]

Dr. Fongs testimony that Mr. Barber exhibited a reduced level of
    consciousness at the 10:00 a.m. Assessment was based on his review of the
    available medical records, including Dr. Joshis own notes.  As the trial judge
    explained, Dr. Fong was entitled to form his standard of care opinion on the
    basis that Mr. Barbers medical chart reflected what actually happened.  It was
    for the trial judge to determine whether that assumption was accurate and then
    weigh his evidence accordingly.

[47]

I recognize that the paramedics assigned Mr. Barber two perfect GCS scores
    (15/15) and that Dr. Joshi recorded a 14/15 GCS score for Mr. Barber at the
    10:00 a.m. Assessment.  It appears that Dr. Fong did not take the GCS scores into
    account when testifying about Mr. Barbers mental status.

[48]

However, the trial judges reasons confirm that she was alert to these
    scores, to their significance as potential indicators of Mr. Barbers mental
    status, and to Dr. Joshis argument that Dr. Fongs opinion about Mr. Barbers mental
    status should be given little weight because Dr. Fong had failed to consider
    them.  Having expressly considered these issues, the trial judge concluded that
    the GCS scores recorded by the paramedics were unreliable because the
    paramedics had been unable to perform a complete assessment of Mr. Barber and
    Dr. Fongs opinion should not be discounted on this basis.  She stated, at
    para. 255 of her reasons:

[S]ince I have also noted that the paramedics had concurrently
    recorded that Barber had been unwilling or unable to answer questions, and
    since they had also included a caveat that a thorough assessment had not been possible,
    I have not discounted Fongs opinion on that basis.  Nor have I accepted the
    submission of counsel for the Defendants that the EMS [paramedics] comment
    that a thorough assessment was not possible/was [
sic
] inapplicable to
    their second GCS assessment.

[49]

This weighing of the evidence and the determination of its reliability
    were squarely within the trial judges domain.  The paramedics notes, on their
    face, contained arguably inconsistent information.  The recorded GCS scores
    suggested no impairment in Mr. Barbers mental status.  Yet the paramedics also
    noted that, because Mr. Barber did not answer their questions, they had been
    unable to conduct a thorough assessment.  It was open to the trial judge to
    conclude, based on the paramedics admitted incomplete assessment of Mr.
    Barber, that their evaluation of his mental status was also incomplete and,
    hence, unreliable.  Certainly it cannot be said that the trial judge ignored or
    failed to consider the evidence of the GCS tests.

[50]

The trial judges finding is also consistent with Dr. Joshis notes from
    the 10:00 a.m. Assessment.  Dr. Joshis recorded GCS score for Mr. Barber was
    reduced by one point on the
verbal
scale.  This
    indicates less than perfect verbal responses.  And Dr. Joshi also recorded that
    Mr. Barber was confused.  As I will discuss, this, too, could fairly be
    interpreted as signalling a diminished level of consciousness.

[51]

Finally, the trial judges finding that Mr. Barber had an altered mental
    status due to meningitis at 10:00 a.m. was supported not only by the information
    in Mr. Barbers medical records, described above, and by Dr. Fongs evidence,
    it was also supported by Dr. Boushys evidence, the defence emergency medicine
    expert.  In his testimony, Dr. Boushy said that a patient with an altered
    mental status may be described as slightly confused or somewhat confused,
    somebody that [
sic
] is not answering questions properly, somebody that
    is quite vague when answering questions and when asked to do certain procedures
    during [an] examination.  Mr. Barbers medical records at the 10:00 a.m.
    Assessment contained virtually all these descriptors.  Further, Dr. Boushy
    acknowledged, as Dr. Fong testified and as Dr. Joshi himself agreed, that
    confusion caused by meningitis is not transient.

(b)

Contradictory Evidence Was Not Ignored

[52]

Dr. Joshi next submits that, in finding that Mr. Barber had a reduced
    mental status at the time of the 10:00 a.m. Assessment, the trial judge ignored
    or discounted contradictory evidence, including, in some instances, the
    observations of fact witnesses recorded in medical records that were admitted
    at trial on consent for the truth of their contents.

[53]

Relatedly, Dr. Joshi submits that the trial judge erred by providing no
    explanation for rejecting his account of Mr. Barbers mental status and by
    according no weight to his evidence of his invariable practice in charting.  Dr.
    Joshi maintained at trial that, in accordance with his invariable practice, if
    Mr. Barbers confusion, noted at 10:00 a.m., had continued at 12:30 p.m., he
    would have documented it and taken steps to investigate.  According to Dr.
    Joshi, as he made no reference to confusion in his 12:30 p.m. notes, Mr.
    Barbers confusion must have resolved by then.  He took the position that from
    12:30 p.m. onwards, Mr. Barber remained alert and oriented until the morning of
    February 14th.

[54]

I do not accept these submissions.  The trial judges reasons reveal
    that she was cognizant of the evidence said by Dr. Joshi to tell against a
    finding that Mr. Barber had a reduced level of consciousness caused by
    bacterial meningitis at the 10:00 a.m. Assessment.  This contradictory
    evidence included the evidence of some of the clinical tests and observations
    of Mr. Barber (notably, his GCS scores), Dr. Joshis own testimony, and the
    nursing notes made at the detention centre and the Hospital after 10:00 p.m. on
    February 13, 2006.  The reasons confirm that, far from ignoring this evidence,
    the trial judge scrutinized it carefully and provided clear and cogent reasons
    for rejecting it.

[55]

I begin with Dr. Joshis own evidence.  His account of Mr. Barbers
    condition and mental status stood in stark contrast to Dr. Muellers, the
    paramedics, and various nurses observations of Mr. Barber preceding the 10:00
    a.m. Assessment.  Moreover, throughout his testimony, Dr. Joshi downplayed the
    severity of Mr. Barbers presenting condition.  For example, he: i) denied that
    Mr. Barber had any reduced level of consciousness; ii) maintained that Mr.
    Barbers skin colour was normal at the 10:00 a.m. Assessment, although he did
    not record this and the triage nurse had noted Mr. Barbers ashen skin colour; iii)
    attempted to explain Mr. Barbers elevated blood pressure by suggesting that he
    may have stopped taking his blood pressure medication even though the nursing
    notes indicated that Mr. Barber was taking his medication; and iv) suggested,
    contrary to the paramedics and nurses observations, that Mr. Barber was not
    diaphoretic at any time while he was in the ER but, rather, was merely perspiring.

[56]

Most telling is that Dr. Joshi attempted to minimize the significance of
    his own recorded observation that Mr. Barber was confused at the 10:00 a.m.
    Assessment.  The meaning of this note was a significant issue at trial.
    Notwithstanding the recorded observations of Dr. Mueller, the paramedics and
    Hospital nursing staff regarding Mr. Barbers altered mental status, outlined
    above, Dr. Joshi denied that his reference to confusion indicated that Mr.
    Barber had displayed a reduced level of consciousness.  Instead, Dr. Joshi attempted
    to qualify the meaning of his notation by suggesting that it was unclear in
    terms of whether [the patient] was just choosing not to answer questions or
    whether [the patient] was [displaying] true confusion.

[57]

Dr. Joshi also sought to explain important omissions from his notes by
    resort to his invariable charting practice.  For example, as I have said, he maintained
    that if Mr. Barber had remained confused at 12:30 p.m., he would have
    documented it and investigated.  Similarly, if Mr. Barber had been experiencing
    significantly elevated respiratory rates at the 10:00 a.m. Assessment of the
    type recorded at the secondary nursing assessment, this too would have been documented
    by him.  According to Dr. Joshi, as his notes contain no entries of confusion
    at 12:30 p.m., or of elevated respiratory rates in the range of 40 breaths per
    minute at 10:00 a.m., Mr. Barber could not have been exhibiting such symptoms.

[58]

The trial judge did not accept Dr. Joshis evidence of Mr. Barbers
    mental status.  Nor did she attribute much weight to his testimony that, based
    on his invariable charting practice, the lack of a notation by him about Mr.
    Barbers mental status or condition necessarily signified normalcy or no material
    change.

[59]

The trial judge regarded Dr. Joshis charting as incomplete, to say the
    least (at para. 215) and his attempts to explain away key omissions from his
    notes to be unhelpful, after-the-fact reconstructions of what he believed must
    have taken place, rather than a recounting of what he remembered actually
    having taken place.  The trial judge put it this way, at para. 219:

Joshis Present Recollection

[M]uch of Joshis evidence was reconstructed and based, not on
    his present recollection of events, but on what he said earlier and on his
    usual practice.  Much of his evidence was about what he thought he
would
have observed [rather than about what he
    remembered observing], and about what he thought he
would
have done, given his usual practice and his own perceived standards [rather
    than about what he remembered doing].  [Emphasis in original.]

[60]

The trial judge addressed Dr. Joshis reliance on his invariable
    practice directly.  She stated, at paras. 221-23:

Evidence of Custom/Invariable Practice

I recognize that in a busy hospital ER it is difficult to find
    the time to record every salient finding.
I also
    appreciate the strength and importance of evidence of customary practice and I
    have carefully considered the evidence and the case law with those
    considerations in mind.

Reconstruction of Evidence

I have already noted Joshis
    evidence that Barbers mental status at 12:30 and 2:00 PM on February 13, 2006
must
have been normal because if Barbers mental status had been abnormal, he would
    have acted differently.  In effect, in reconstructing what he must have done,
    he reasoned that given his own standards and given that the Standard of Care
    would have required him to act differently than he did had Barbers mental status
    been abnormal, Barbers mental status must have been normal.

That type of reasoning and reconstruction was of little
    assistance to this Court.  For me to adopt that reasoning would require me to
    assume in Joshis favour the answers to the very questions that I must
    answer/decide.
Instead, I have borne in mind all of the
    evidence and the relevant case law, including the law on usual practice
.
    [Italicized emphasis in original; underlined emphasis added.]

[61]

Thus, the trial judges reasons do explain why she rejected Dr. Joshis evidence
    concerning Mr. Barbers mental status and placed little weight on his testimony
    about his invariable practice.  The trial judge was not obliged to accept Dr.
    Joshis account of Mr. Barbers mental status or his explanation for omissions
    in his clinical notes.  As Dr. Joshi concedes in his factum, so long as the
    trial judge considered his evidence on these issues, she was not required to
    accept that it was accurate.  Having considered his evidence, the trial judge
    simply declined to accept it.  This was her call to make.

[62]

The trial judge also took account of other evidence, apart from Dr.
    Joshis testimony and Mr. Barbers GCS scores, that Dr. Joshi says contradicted
    the conclusion that Mr. Barber was experiencing a reduced level of
    consciousness at the 10:00 a.m. Assessment.  Two examples will suffice to make
    this point.

(i)

Triage nursing notes

[63]

The triage nursing notes made on Mr. Barbers admission to the Hospital near
    midnight on February 13th suggested no abnormality in Mr. Barbers condition
    and mental status, instead recording that he was alert, oriented, cooperative,
    breathing normally and had no fever.  The trial judge indicated, at para. 235, that
    these notes had caused her much anxious consideration because if they were accurate,
    they could have provided a basis for this Court to infer that Barbers mental
    status around midnight on February 13 [and earlier] was indeed normal as Joshi
    [and Boushy] assumed it must have been.

[64]

Citing this courts decision in
Ortolan v. Hotel-Dieu Grace Hospital
,
    2011 ONCA 456, Dr. Joshi argues that, as the triage nursing notes were admitted
    at trial on consent for the truth of their contents, it was not open to the
    trial judge to make a finding  based on Dr. Fongs opinion evidence  that was
    inconsistent with them.  I do not agree.

[65]

First, and importantly, the trial judges key finding about Mr. Barbers
    mental status at 10:00 a.m. was not based solely on Dr. Fongs testimony.
    Rather, it was an inference drawn by her based on all the available evidence,
    including direct evidence, about his condition and mental status prior to and
    on admission to the Hospital and at the time of the 10:00 a.m. Assessment.

[66]

In any event, in my opinion, the trial judge was not precluded, as a
    matter of law, from assessing the accuracy and reliability of the triage
    nursing notes simply because the parties had agreed, for the purpose of
    admissibility, that the notes should be admitted on consent for the truth of
    their contents.  I do not read
Ortolan
as dictating a contrary
    conclusion in this case.  As I have emphasized, unlike the facts in
Ortolan
,
    there was evidence here, apart from Dr. Fongs testimony, that anchored the
    trial judges standard of care findings.

[67]

As the Supreme Court held in
Ares v. Venner
, [1970] S.C.R. 608,
    at p. 626, the admission of nursing notes for the truth of their contents
    should, in no way, preclude a party wishing to challenge the accuracy of the
    records or entries from doing so.  So, too, it is the duty of a trier of fact to
    weigh and determine the probative value, including the reliability, of evidence
    bearing on the critical, contested issues at trial.  The ultimate reliability
    of the evidence, and the weight to be attached to it, remain determinations for
    the trier of fact.  See for example,
R. v.

Ivy Fisheries Ltd.
,
    2009 NSSC 95, at para. 69, affd 2009 NSCA 112.

[68]

The trial judge provided cogent reasons for concluding that the relevant
    triage nursing notes could not be taken as accurately portraying Mr. Barbers mental
    status on his return to the Hospital.  She explained that, because the involved
    triage nurse did not testify at trial, despite a direct challenge by Dr. Fong
    to the accuracy of the triage nurses notes, she was left with incomplete
    evidence regarding the nature of the assessments carried out by the triage
    nurse, the circumstances under which she undertook those assessments and
    whether, when the triage nurse examined Mr. Barber that night, she had in hand his
    chart from earlier in the day on February 13th.

[69]

Furthermore, the triage nurses recorded observations of Mr. Barbers
    condition and mental status were inconsistent not only with the evidence of Dr.
    Fong, but also with that of the defence witnesses Dr. Powis and Dr. Juurlink to
    the effect that Mr. Barber likely already had meningitis at or soon after the
    10:00 a.m. Assessment.

[70]

In light of these considerations, the trial judge stated, at para. 240:
    Given the conflicting evidence and without the benefit of hearing from the
    triage nurse, I have done the best that I can, having regard to all of the
    evidence before me.  This is precisely what the trial judge was obliged to do.

[71]

I therefore see no basis on which to fault the trial judges approach to
    the evidence of the triage nursing notes.  That she did not accord to them the
    weight urged by Dr. Joshi does not mean that she erred in law or ignored
    material evidence.  It simply means that, based on other evidence that she did
    accept, including evidence of contemporaneous events, she questioned the accuracy
    of the triage nursing notes and, hence, their reliability.  She was entitled to
    do so.

(ii)

Detention centre nursing notes

[72]

I provide a second example, involving the evidence of Nurse DeTomas
    observations of Mr. Barber on his return to the detention centre during the
    afternoon of February 13th and before his transport back to the Hospital later that
    night.

[73]

The trial judge did not ignore this evidence either.  Indeed, she specifically
    addressed Dr. Joshis contention that the detention centre records suggested that
    Mr. Barbers condition and mental status were normal while he was back at the
    detention centre, and outlined her reasons for rejecting this claim.

[74]

The trial judge stated that the 3:30 p.m. nursing note made on Mr.
    Barbers return to the detention centre did not reflect normal, but rather
    abnormal, vital signs and that Nurse DeTomas 10:30 p.m. nursing note did not
    provide details of his breathing or his mental status.  These statements were
    accurate.

[75]

The trial judge also found, at para. 230, that the detention centre staff
    who testified at trial (including, therefore, Nurse DeToma), had little
    present recollection of the events at issue here.  Using incomplete
    contemporaneous notes, they too attempted to reconstruct what
must
have happened (emphasis in original).  She went on
    to emphasize that, while Mr. Barbers respiration appeared to have improved at
    the detention centre, his breathing had nonetheless been described as
    laboured.  And, while his improved temperature could be attributed to his receipt
    of Tylenol and Ibuprophen, this did not mean that his underlying fever had been
    cured.

[76]

These findings were available to the trial judge on the evidentiary
    record.  They do not support Dr. Joshis assertion that the trial judge ignored
    material evidence that militated against her findings about Mr. Barbers mental
    status.  Indeed, they suggest the opposite, namely, that the trial judge
    appreciated the conflicts in the evidence about Mr. Barbers mental status and
    came to grips with them.

[77]

This ground of appeal therefore fails.  The trial judges reasons
    include a thorough review of the evidence of Mr. Barbers condition and mental
    status at and leading up to the 10:00 a.m. Assessment.  They also explain which
    evidence she accepted, and why, and set out her reasons for concluding that Mr.
    Barber was experiencing confusion due to bacterial meningitis at the 10:00 a.m.
    Assessment.  I see no basis for appellate interference.

(2)

Reliance on Dr. Fongs Standard of Care Evidence

[78]

Dr. Joshi argues that the trial judge erred in law by relying
    exclusively on Dr. Fongs evidence to find that Dr. Joshi breached the standard
    of care.  He makes four submissions in support of this argument.

[79]

First, he submits that Dr. Fong is not qualified to offer an opinion on
    the standard of care applicable to an ER physician in 2006.

[80]

Second, he says that the trial judge erred by failing to provide reasons
    for her rejection of Dr. Brankstons opinion on the standard of care applicable
    at the 10:00 a.m. Assessment, which Dr. Joshi says directly conflicted with that
    of Dr. Fong.

[81]

Third, Dr. Joshi asserts that Dr. Fongs standard of care opinion was
    based on the erroneous factual assumption that Dr. Joshi had failed to perform
    a neurological evaluation at the 10:00 a.m. Assessment.  In fact, he performed a
    GCS test and documented the score it yielded.  Finally, Dr. Joshi maintains
    that Dr. Fong never actually expressed an opinion on what the standard of care
    required in the circumstances.

[82]

I make this preliminary comment.  The premise of this ground of appeal is
    the assertion that the trial judge relied
exclusively
on Dr. Fongs testimony to find that Dr. Joshi breached the standard of care.
    I do not accept this premise.

[83]

There is no doubt that the trial judge relied heavily on Dr. Fongs
    evidence in finding that Dr. Joshi breached the standard of care at both the
    10:00 a.m. Assessment and during his 12:30 p.m. examination of Mr. Barber.  But
    this was not the only evidence on which she relied.  In concluding that Dr.
    Joshi breached the standard of care at the 10:00 a.m. Assessment, the trial
    judge also relied on her factual findings, gleaned from all the evidence, about
    Dr. Joshis knowledge at 10:00 a.m. of Mr. Barbers history, presenting
    condition and mental status, as well as certain of the evidence of some of the
    other expert witnesses.

[84]

With respect to Dr. Joshis knowledge, following an extensive review of
    the evidence, the trial judge held that he knew at the time of the 10:00 a.m.
    Assessment:

(i)    of Mr.
    Barbers history of fever and of a decreased level of consciousness as
    documented by the paramedics and ER nursing staff (para. 289);

(ii)    that
    the paramedics had been unable to complete a thorough assessment of Mr. Barber
    because he had been unwilling or unable to answer questions while enroute to
    the Hospital (para. 289);

(iii)   that
    only five minutes before the 10:00 a.m. Assessment, Mr. Barber had been noted
    to be very sweaty, to have a respiratory rate of 29-35 breaths per minute, to
    be vague, unable to focus on conversation, and to be unoriented (the nursing
    note suggesting he was oriented as to person, place and time x 3 had been crossed
    out) (para. 292);

(iv)   that
    Mr. Barber appeared to be very ill when he arrived at the Hospital (paras. 290-91);

(v)   that Mr.
    Barber had been recorded as having much higher respiratory rates than the 20
    breaths per minute noted by Dr. Joshi and that his respiratory rates were far
    from consistently normal (paras. 297 and 300);

(vi)   that Mr.
    Barber had already received medication, albeit for chest pains, that could have
    reduced but not cured his underlying fever (para. 309);

(vii)  that
    Mr. Barbers oxygen saturation was normal, which cut against the possibility
    that pneumonia was the cause of his confusion (para. 318); and

(viii) that
    Mr. Barbers skin colour at 9:17 a.m. was observed to be ashen and that he
    had earlier been noted to be sweating profusely (para. 288).

[85]

None of these factual findings depended on Dr. Fongs expert evidence.  Taken
    together, they strongly supported the conclusion that a full assessment of Mr.
    Barber, including a comprehensive neurological evaluation, was required at the
    10:00 a.m. Assessment.  Dr. Fong, in his testimony, confirmed that this was so.

[86]

The trial judge also expressly relied on the evidence of defence witnesses.
    For example, she relied on Dr. Boushys testimony that Dr. Joshi should not
    have ignored Mr. Barbers recorded and very elevated respiratory rates and on
    his testimony identifying the signs and symptoms of meningitis; and she relied
    on Dr. Powis evidence about the significance of elevated blood pressure
    readings.

[87]

I would therefore reject Dr. Joshis assertion that the trial judges
    finding that he breached the standard of care rested entirely on Dr. Fongs
    evidence.  This characterization of the trial judges reasons takes too narrow
    a view of her standard of care analysis and her factual findings.

[88]

I turn now to Dr. Joshis specific complaints regarding the trial
    judges reliance on Dr. Fongs evidence.

(a)      Dr. Fongs Standard of
    Care Evidence Was Admissible

[89]

At trial, the defence challenged the admissibility of Dr. Fongs
    evidence on the standard of care on the basis that he is not an ER physician,
    has no practice experience as an ER physician and possesses specialized skills
    and training that exceed those of an ER physician.  The defence maintained that
    Dr. Joshis conduct was to be measured against the standard of a reasonable ER
    physician, not that of an infectious disease specialist like Dr. Fong.
[3]

[90]

This challenge was addressed, and rejected, by the trial judge.  She
    ruled that, based on his experience teaching medical students in 2006 and his
    resulting knowledge of what general medical practitioners are taught, Dr. Fong
    was qualified to offer an opinion on what he knows that general practitioners
    were required to know and do in a certain area that he has expertise about in
    2006.

[91]

I see no reversible error in this ruling.  The courts have recognized
    that, in a proper case, a specialist physicians opinion on the level of care,
    skill, knowledge and judgment expected from a non-specialist medical practitioner
    may be admissible having regard to the nature of the medical question at issue:
    see for example,
Robinson v. St. Josephs General Hospital
(1999), 117
    O.A.C. 331 (C.A.), at para. 8;
Briffett v. Gander and District Hospital
(1996), 137 Nfld. & P.E.I.R. 271 (Nfld. C.A.), at paras. 47-48;
Quintal
    v. Datta
(1988), 68 Sask. R. 104 (C.A.), leave to appeal refused, [1988]
    S.C.C.A. No. 488.  In other words, the opinion of a medical specialist
    regarding the appropriate standard of care for a general medical practitioner may
    be admissible as necessary, relevant and helpful to the trier of fact.  It is
    for the trial judge to determine the weight to be given to the specialist
    physicians opinion, having regard to his or her different work experience and
    specialized training.

[92]

That was the situation here.  Dr. Fongs evidence on the standard of
    care was based on his personal knowledge and expertise regarding the knowledge
    and training that was common to and expected of all physicians in 2006 who were
    called upon to care for a patient with Mr. Barbers presenting history and
    symptoms.  It was Dr. Fongs uncontradicted testimony that the knowledge expected
    of
any
physician assessing a patient who presents
    with signs and symptoms of meningitis is at the core of the concepts taught to
    all physicians.  He said, for example, that knowing how a patient presents with
    a stroke, peritonitis, appendicitis, pneumonia or meningitis are core things
    that all medical students should know by the time they finish their training.
    Dr. Fong was experienced in teaching medical students on these very subjects, specifically,
    on the
minimum
standard applicable to all doctors
    in 2006, including ER physicians.

[93]

In admitting Dr. Fongs evidence on the applicable standard of care, the
    trial judge recognized, correctly, that an ER physician cannot properly be held
    to the standard of an infectious disease specialist. But that was not the
    standard about which Dr. Fong testified.  The trial judge limited his evidence on
    the standard of care to the minimum standard applicable to all medical doctors
    in 2006.  In doing so, she reasoned, at para. 249:

The minimum standard expected of [ER] physicians in 2006 cannot
    be lower than the minimum standard expected of all physicians.  While I accept
    the submission that the standard of [ER] doctors could conceivably be higher
    than the minimum standard expected of all MDs, I do not accept that it could
    ever be lower.

I agree.

(b)      Rejection of Dr.
    Brankstons Evidence

[94]

Dr. Joshi makes two arguments concerning the trial judges treatment of
    the evidence of Dr. Brankston, the respondents emergency medicine expert.
    First, he argues that, as Dr. Brankstons opinion on the standard of care
    directly contradicted that of Dr. Fong and because Dr. Brankston is an ER
    physician, Dr. Brankstons opinion should have been preferred to that of Dr.
    Fong.  Second, he submits that the trial judge erred by failing to reference Dr.
    Brankstons testimony on the standard of care applicable to the 10:00 a.m.
    Assessment in her reasons, thereby in turn failing to provide sufficient
    reasons for her decision.

[95]

There are several difficulties with these arguments.  First, like Dr.
    Fong, Dr. Brankston testified that Dr. Joshis care and treatment of Mr. Barber
    did not meet the standard of care expected of an ER physician, albeit for
    reasons that differed from those of Dr. Fong.

[96]

Unlike Dr. Fong, Dr. Brankston testified that Dr. Joshi did a pretty
    complete assessment and ordered appropriate investigations at the 10:00 a.m.
    Assessment and that it did not appear that Mr. Barber had meningitis at 10:00
    a.m.  However, he also said that Mr. Barber was sick enough to be admitted to
    the Hospital and should not have been discharged.  Rather, given his condition,
    symptoms and history, Mr. Barber should have been admitted and given
    intravenous antibiotics.  Dr. Brankston therefore offered the opinion that Dr.
    Joshi breached the standard of care by discharging Mr. Barber from the
    Hospital.  Thus, in this important respect, Dr. Brankstons evidence did not
    assist Dr. Joshi.  It merely provided an alternate basis for a finding of
    negligence against him.

[97]

Second, Dr. Joshis counsel argued forcefully at trial that little
    weight should be accorded to Dr. Brankstons testimony.  Having urged this outcome
    on the trial judge and having prevailed, at least to the extent that the trial
    judge did not rely on Dr. Brankstons standard of care opinion, it does not lie
    in Dr. Joshis mouth to now assert that the trial judge fatally erred for doing
    exactly what he, through counsel, pressed her to do.

[98]

Third, based on the evidence of Dr. Fong, Dr. Powis, Dr. Boushy and, to
    some extent, that of Dr. Joshi himself, the trial judge found as a fact that
    Mr. Barber was displaying signs and symptoms of bacterial meningitis at the
    10:00 a.m. Assessment.  It follows that she rejected Dr. Brankstons contrary
    opinion, implicitly concluding that his testimony about the appropriate steps
    to be taken at the 10:00 a.m. Assessment to treat pneumonia was largely
    irrelevant.

[99]

Finally, Dr. Joshis attack on the adequacy of the trial judges reasons
    must be squarely rejected.  I have already concluded that her reasons clearly
    explain why she ruled as she did on the standard of care and that they carefully
    delineate the basis for her decision.  I see nothing in her reasons suggesting
    that she failed to properly consider Dr. Brankstons evidence.  Given his conflicting
    testimony on the trial judges key findings and the position taken by Dr.
    Joshis counsel regarding his evidence, it is apparent why it was unnecessary
    to make detailed reference to his testimony.

(c)

Incomplete Neurological Assessment

[100]

Dr. Joshis
    third submission is that Dr. Fongs standard of care opinion was fatally flawed
    because it was premised on the false assumption that Dr. Joshi did not conduct
    any neurological evaluation of Mr. Barber at the 10:00 a.m. Assessment, specifically,
    a GCS assessment.  This proposition was not put to Dr. Fong on
    cross-examination and he was not asked if his opinion would change in light of
    the GCS scores.

[101]

I have already
    considered Dr. Fongs failure to recognize Mr. Barbers GCS scores.  Suffice it
    to say that the trial judge fully considered and rejected Dr. Joshis attack on
    Dr. Fongs evidence on this basis.  In my view, she was entitled to do so.  The
    critical point is that Dr. Joshis notes from the 10:00 a.m. Assessment
    referred not only to the less than perfect results of a GCS test but,
    additionally, to Mr. Barber being confused.  On the trial judges findings,
    this observation was made at a time when Mr. Barber, to Dr. Joshis knowledge,
    had a documented history of fever and a lowered level of consciousness prior to
    arrival in the ER.

[102]

In these
    circumstances, the trial judge held, at para. 257, that even with the GCS test
    conducted by him, [Dr.] Joshi did not do the full and complete neurological
    testing required in all the circumstances.  Dr. Fong was clear in his evidence
    that where, as here, there is a history of a decreased level of consciousness,
    coupled with a fever, a lumbar puncture should be performed to rule out
    possible meningitis.  Dr. Powis evidence was to a similar effect.  And, as the
    trial judge noted at para. 67 of her reasons, Dr. Boushy agreed that, with a
    history of lowered consciousness for two days and fever, any emergency
    physician would be concerned about [it] and would want to determine its
    cause.  He also agreed that Mr. Barbers symptoms on arrival in the ER
    suggested he was experiencing an altered level of consciousness.  Moreover, Dr.
    Joshi himself acknowledged in his testimony that if there were even the
    slightest suspicion of meningitis, testing and treatment for it was required.
    This did not occur in this case.

(d)

Dr. Fongs Standard of Care Opinion

[103]

In my view, Dr.
    Joshis argument that Dr. Fong did not actually express an opinion on what the
    standard of care required in this case is unsustainable on this record.  I
    think it beyond dispute that, given the trial judges ruling about the
    permissible scope of his testimony, described above, when Dr. Fong testified
    about the core concepts that he taught to medical students and the common
    knowledge that all general medical practitioners were expected to have in 2006,
    he was testifying about the requisite standard of care in 2006.  That this was
    so is made clear by the trial judges ruling confining the scope of Dr. Fongs
    testimony on the standard of care and by defence counsels objections to
    questions of Dr. Fong that strayed beyond his knowledge of what was taught to,
    and therefore expected, of general practitioners in 2006.

[104]

I would not give
    effect to this argument.

(3)

Causation Analysis

[105]

There was no
    dispute in this case about the governing test for the proof of causation in
    medical malpractice cases.  The trial judge identified it, at para. 437, as
    requiring proof by the respondents that, but for Dr. Joshis breach of the
    standard of care, it was more likely than not that Mr. Barber would not have
    died.

[106]

Citing the
    Supreme Courts decision in
Ediger v. Johnston
, 2013 SCC 18, [2013] 2
    S.C.R. 98, the trial judge also recognized that inherent in the but for test
    for causation is the requirement that the defendants negligence was necessary
    to bring about the injury in question.  Further, the plaintiff bears the burden
    of proving causation on a balance of probabilities.  As explained in
Ediger
,
    at para. 36, in determining whether the plaintiff has discharged this burden,
    the trier of fact may, upon weighing the evidence, draw an inference against a
    defendant who does not introduce sufficient evidence contrary to that which
    supports the plaintiffs theory of causation.

[107]

The causation
    dispute in this case arose from the fact that, on Dr. Joshis orders, Mr.
    Barber received the antibiotic Avelox shortly after the 10:00 a.m. Assessment
    rather than the Standard Treatment for meningitis.  Relying on Dr. Fongs
    testimony and on peer-reviewed medical studies concerning survival statistics
    for patients with meningitis referenced by Dr. Powis in his testimony, the
    respondents argued at trial that, although Mr. Barber was seriously ill and
    confused before the morning of February 14, 2006, he would have survived with
    the appropriate treatment.

[108]

In contrast, Dr.
    Joshi maintained that Mr. Barbers actual outcome following the administration
    of Avelox was the appropriate measure of the probability of his survival.  As Mr.
    Barber unfortunately died notwithstanding his receipt of Avelox, a recognized second-line
    of treatment for meningitis, his likelihood of survival with or without
    significant neurological damage was low.  Simply put, the defence argued that
    Mr. Barber would have died even if he had received the Standard Treatment for
    meningitis.

[109]

The trial judge
    rejected Dr. Joshis causation argument.  She held that the best evidence
    before her of Mr. Barbers probable outcome had he received the Standard Treatment
    for meningitis was contained in the medical studies cited by Dr. Powis and in
    the prognosticating factors outlined in those studies and by Dr. Fong.  Based
    on that evidence, she held that the respondents had established that it was
    more likely than not that, but for Dr. Joshis negligence in failing to
    diagnose and properly treat meningitis at the 10:00 a.m. Assessment, Mr. Barber
    would not have died or sustained serious neurological injury.

[110]

Dr. Joshi argues
    that the trial judge erred in so holding because she failed to assess causation
    in light of all the evidence and, in particular, with the benefit of hindsight.
    Specifically, he submits that the trial judge erred by ignoring Mr. Barbers
    actual outcome and failing to use it to determine the likelihood of Mr.
    Barbers survival but for Dr. Joshis breach of the standard of care.

[111]

I disagree.

[112]

The trial
    judges reasons confirm that she appreciated the two competing causation
    theories advanced at trial, the evidence marshalled in support of each, and the
    fact that Dr. Joshis theory hinged on Mr. Barbers actual outcome following
    the administration of Avelox.  The trial judge did not ignore Dr. Joshis actual
    outcome approach to causation.  She simply did not accept it.  In my view, for
    the reasons that follow, she cannot be faulted for this decision.

[113]

Dr. Powis was the
    primary proponent at trial of the causation theory posited by the defence.  He testified
    that Mr. Barbers actual outcome following the administration of Avelox was the
    best prognosticator of his likely outcome had he received the Standard Treatment
    for meningitis shortly after the 10:00 a.m. Assessment.  However, several
    factors significantly undercut this proposition.

[114]

First, Dr. Fong
    and Dr. Powis agreed, and the trial judge found, that Avelox is not the
    standard treatment for bacterial meningitis.  Although Dr. Juurlink testified
    that Avelox was an appropriate therapy for Mr. Barbers type of bacterial
    meningitis, he did not suggest that Avelox was the accepted standard treatment
    for meningitis.

[115]

Further, there
    was no evidence at trial that Avelox is as effective in treating meningitis as
    the Standard Treatment of Ceftriaxone, Vancomycin and Decadron.  As the trial
    judge put it, at para. 500, Avelox is a second-line treatment for
    unspecified types of meningitis [that is suitable for use] in specific limited
    circumstances where the Standard of Care treatment is contraindicated [
sic
]
    because of allergy or resistance.

[116]

Second, the
    medical studies relied upon by Dr. Powis in his evidence indicated that the
    mortality rate for all patients with pneumococcal meningitis following Standard
    Treatment is about 20 percent to 40 percent.  Dr. Fong, relying on the
    prognosticating factors that he regarded as relevant, estimated that Mr.
    Barbers mortality rate was even lower  at 10 percent.  He testified that Mr.
    Barbers probability of survival if the Standard Treatment had been employed
    was about 90 percent.

[117]

Third, Dr.
    Powis own evidence at trial supported the conclusion that with Standard Treatment
    for meningitis commenced shortly after the 10:00 a.m. Assessment, Mr. Barber
    was more likely than not to have survived or not suffered serious neurological
    deficits.

[118]

Specifically, Dr.
    Powis testified that a patients best chance of surviving bacterial meningitis
    (that is, realizing a positive outcome), is early diagnosis and prompt
    treatment.  He also acknowledged that if a lumbar puncture had been performed
    on Mr. Barber shortly after the 10:00 a.m. Assessment, it was likely that his
    spinal fluid would have revealed the presence of bacteria.  Further, and
    critically, Dr. Powis conceded that if the statistical outcomes based on the
    prognosticating factors identified in the medical literature that he cited were
    applied to Mr. Barber (to project his likely outcome at 10:00 a.m. on February
    13th when, on the trial judges findings, the Standard Treatment should have
    been administered), Mr. Barbers likelihood for not only survival but [for]
    very mild, if any impairment were pretty good.

[119]

Fourth, apart
    from the
fact
of Mr. Barbers death after the
    administration of Avelox, Dr. Powis provided no rationale for ignoring the
    statistical outcomes identified in the medical studies he cited.  As the trial
    judge observed, at paras. 494 and 498, Dr. Powis, in effect, maintained that
    the fact of Mr. Barbers death following the receipt of Avelox, by itself, was
    sufficient justification to trump the medical/statistical evidence on the
    effectiveness of the Standard of Care treatment for pneumococcal meningitis
    even though there was a paucity of evidence at trial regarding the comparative
    effectiveness of Avelox and the Standard Treatment for meningitis.

[120]

The trial judge recognized
    this for what it was: a plea to disregard the evidence of reported statistical
    outcomes for patients with meningitis who received the Standard Treatment that should
    have been administered to Mr. Barber, in favour of what the trial judge found, at
    para. 509, was an outcome after a
different
inferior
    treatment (emphasis in original).  The trial judge was not obliged to accept
    this plea.  On the evidence before her, she was entitled to conclude, as she
    essentially did, that the defence actual outcome theory was not the relevant
    point of comparison.

[121]

The trial
    judges causation analysis was thoughtful and thorough.  Faced with conflicting
    expert evidence on the determination of Mr. Barbers probable outcome had he
    received the Standard Treatment for meningitis, she declined to adopt the
    defence actual outcome theory of causation, instead relying on the medical
    studies and statistical outcomes evidence proferred by Dr. Powis, Dr. Fongs
    evidence and, significantly, Dr. Powiss own testimony.  The assessment of the
    conflicting evidence on this issue was at the core of the trial judges
    function.

[122]

I therefore
    conclude that the trial judges causation analysis and her causation finding in
    respect of Dr. Joshi, which also attract deference from this court, are
    unassailable.

(4)

Sanderson Costs Order

[123]

The trial judge
    awarded the respondents $315,000 in costs, inclusive of disbursements and
    applicable taxes, as against Dr. Joshi.  There is no challenge on appeal to
    this aspect of the trial judges overall costs award.

[124]

However, the
    trial judge also made a Sanderson order, requiring Dr. Joshi, rather than the
    respondents, to pay the amount of $43,000, inclusive of disbursements and
    applicable taxes, on account of those partial indemnity costs to which Dr.
    Shergold was found to be entitled on account of his successful defence of the
    action.  It is this component of the trial judges costs ruling that Dr. Joshi
    now seeks to appeal, arguing that it was unreasonable.

[125]

The jurisdiction
    of this court to interfere with a trial judges costs award is very limited.
    Unless the impugned award is plainly wrong or tainted by an error in principle,
    a reviewing court is precluded from interfering with it:
Hamilton v. Open
    Window Bakery Ltd.
, [2004] 1 S.C.R. 303, at p. 313.

[126]

I see no basis
    for appellate interference with the trial judges discretionary Sanderson
    order.  The trial judges costs reasons confirm that she considered the
    governing principles for granting a Sanderson order and the test for such an
    order outlined by this court in
Moore v. Wienecke
, 2008 ONCA 162, 90
    O.R. (3d) 463, and related authorities.  Her application of that test to the
    facts as she found them was neither plainly wrong nor infected by reviewable
    error.  In particular, her holding that, in the circumstances here, it would be
    unfair to require the respondents, who are of limited means, to pay Dr.
    Shergolds costs when it was reasonable for them to join him in the action, is
    unimpeachable.

[127]

Accordingly,
    while I would grant leave to appeal costs, I would decline to interfere with
    the trial judges Sanderson order.

Disposition

[128]

For the reasons
    given, I would dismiss the appeal, grant leave to appeal costs and dismiss the
    costs appeal.  The respondents are entitled to their costs of the appeal,
    including the costs of the leave to appeal motion, which I would fix in the
    total amount of $50,000, inclusive of disbursements and all applicable taxes.

Released:

EAC                                                  E.A.
    Cronk J.A.

NOV 28 2016                          I agree R.G.
    Juriansz J.A.

I agree
    L.B. Roberts J.A.

[1]
The respondents claims against other named defendants were resolved or
    dismissed on consent.

[2]
The fact that Dr. Joshi may not have read Dr. Muellers health care consultation
    note until after the 10:00 a.m. Assessment is immaterial.  The paramedics
    notes, which were available to Dr. Joshi, clearly stated that Mr. Barber had a
    two-day history of fever and a decreased level of consciousness, and was being
    sent to the Hospital for this reason.

[3]
At trial, the defence did not challenge the admissibility of Dr. Fongs
    evidence on causation.


COURT OF APPEAL FOR ONTARIO

CITATION: Berkley Insurance Company v. Rob Piroli
    Construction Inc., 2016 ONCA 885

DATE: 20161122

DOCKET: C61859

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Berkley Insurance Company

Applicant

and

Rob Piroli Construction Inc.

Respondent

Sonny Ingram, for the appellant

Myron W. Shulgan, for the respondent

Heard and released orally: November 16, 2016

On appeal from the order Justice Paul Perell of the
    Superior Court of Justice, dated February 8, 2016.

ENDORSEMENT

[1]

The appellant brought an application under rule 14 of the
Rules of
    Civil Procedure
seeking a mandatory order for the payment of money
    pursuant to an undertaking to pay.  The respondent agreed in its material that
    there was a contract wherein it undertook to pay the money as part of security
    for bonds in a construction project and that when the time came for the company
    to live up to its undertaking, it failed to do so and was in breach of that contract.

[2]

The application judge accepted the argument of the respondent that the
    application had to be dismissed on the ground that the application was not
    properly brought under rule 14 because the request for a mandatory order was
    not ancillary to a claim for relief.

[3]

We do not agree.  The application was properly founded under subrule (h),
    no material facts in dispute, and under subrules (d) and (g), the determination
    of rights following the interpretation of a contract and relief ancillary to
    those rights.  In this case, the interpretation of the contract was conceded,
    allowing the court to determine whether the right to a mandatory order flows
    from the breach of contract.

[4]

Because the application was dismissed on procedural grounds, the
    application judge did not decide the substantive legal issue nor did he make
    the necessary findings of fact based on the record to do so.

[5]

The respondents position on the merits is that an undertaking to pay
    money is not enforceable by a mandatory order.  Damages must be proved.  Also,
    no irreparable harm was shown on this record.

[6]

The decision of the application judge that the appellant was not
    entitled to proceed by application is set aside.  The matter is referred back
    to the application judge for decision on the merits based on the record as it
    exists, or on an expanded record as determined by the application judge, if
    requested by the parties.

[7]

Costs of the appeal in the agreed amount of $7,500 inclusive of
    disbursements and HST to the appellant.  The disposition of the order of costs
    below in the amount of $10,000 will be left to the application judge.

K. Feldman J.A.

P. Lauwers J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Campoli v. Gianforcaro, 2016 ONCA 818

DATE: 20161104

DOCKET: C61588

Simmons, LaForme and Pardu JJ.A.

BETWEEN

Nancy Campoli

Plaintiff (Respondent)

and

Giuseppe Gianforcaro and Lillian Gianforcaro

Defendants (Appellants)

AND BETWEEN

Giuseppe Gianforcaro and Lillian Gianforcaro

Plaintiffs by counterclaim (Appellants)

and

Nancy Campoli and Bruno Campoli

Defendants
    by counterclaim (Respondents)

Bhupinder Nagra, for the appellants

Conor D. O'Hare, for the respondents

Heard: September 26, 2016

On appeal from the judgment of Justice Graeme Mew of the
    Superior Court of Justice dated November 27, 2015.

ENDORSEMENT

[1]

The appellants appeal from a judgment requiring that they pay to the
    respondent plaintiff the sum of $30,000, being the balance owing under the
    terms of Minutes of Settlement, and exchange full and final releases as
    required under the Minutes.

[2]

Absent palpable and overriding error or an extricable error of law, the
    motion judges interpretation of the Minutes is entitled to deference:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633. The
    appellants have demonstrated neither. Moreover, the appellants cannot rely on
    their own conduct to support a claim that the Minutes were frustrated: G.H.L.
    Fridman,
The Law of Contract in Canada
, 6th ed. (Toronto: Carswell,
    2011), at p. 623.

[3]

The appeal is therefore dismissed. The appellants did not seek leave to
    appeal costs and therefore withdrew their costs appeal at the oral hearing. Costs
    of the appeal are to the respondents fixed in the amount of $7,500 inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

H.S. LaForme J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carnevale v. Water Matrix Inc., 2016 ONCA 875

DATE: 20161118

DOCKET: C62093

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Anna
    Maria Carnevale, a.k.a Anna Carnevale-Cordeiro,

a.k.a.
    Anna M. Cordeiro, a.k.a. Anna C. Ottorino, Stephen M. Cordeiro,

a.k.a
    Steve Cordeiro, a.k.a. Stephen Cordeiro and

Cordeiro
    Trucking Limited

Appellants (Defendants)

and

Water Matrix Inc.

Respondent (Plaintiff)

Domenic Saverino, for the appellants

Stewart D. Thom, for the respondent

Heard: November 14, 2016

On appeal from the order of Justice E.M. Morgan of the
    Superior Court of Justice, dated April 14, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We see no merit in the appellants appeal.  The motion judge found that
    the appellants had never paid in full the $300,000 required as a condition of
    extending a 30 day grace period; that there was no evidence that a lender was
    actually prepared to advance the balance of the funds required under the
    settlement agreement within the stipulated time period; that it was reasonable
    for the respondent to refuse to sign the consent, as proffered, to lift the
    Mareva injunction; and that, overall, the respondents actions were not
    unreasonable.

[2]

These findings are fully supported by the record.  The proposed fresh
    evidence is not capable of undermining these findings; nor does it meet the
    other prongs of the fresh evidence test.

[3]

The appeal is dismissed.  Costs of the appeal are to the respondent on a
    partial indemnity scale fixed in the amount of $10,000 inclusive of
    disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Chuang v. Toyota Canada Inc., 2016
    ONCA 852

DATE: 20161110

DOCKET: M46812 (C60102)

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Dr. Sylvester Chuang, HSC Holdings Inc.,
    Transoriental Fine Cars Ltd., 1405768 Ontario Limited and Ontasian Enterprises
    Inc.

Plaintiffs

(Appellants/Respondents
    by Cross-Appeal)

and

Toyota Canada Inc.

Defendant

(Respondent/Appellant by Cross-Appeal)

Fred A. Platt, for the appellants/respondents by
    cross-appeal

Timothy Pinos, for the respondent/appellant by
    cross-appeal

Heard: In writing

ENDORSEMENT

[1]

The appellants Dr. Sylvester Chuang and several related companies seek
    to re-open their appeal to this court of the decision of Spence J. of the
    Superior Court of Justice. The trial judge interpreted a commercial contract
    between the Chuang plaintiffs and the corporate defendant Toyota Canada Inc.
    (Toyota). Based on his interpretation of the contract, the trial judge
    dismissed the Chuang action:
Chuang v. Toyota Canada Inc.
, 2015 ONSC
    885.

[2]

The central issue at trial was whether Toyotas termination of the
    contract was reasonable. The trial judge held that it was not, but went on to
    hold that an exclusion clause referring to Toyotas exercise of its termination
    rights protected Toyota from any obligation to pay damages or other losses
    caused to Dr. Chuang by termination of the agreement.

[3]

This court dismissed the appeal:
Chuang v. Toyota Canada Inc.
, 2016
    ONCA 584.

[4]

Now the appellants, with different counsel than trial and appeal
    counsel, seek to re-open the appeal on an entirely different ground not argued
    in the trial court or this court. The appellants say that Toyota did not
    terminate the contract; rather it repudiated it and a proper legal analysis
    relating to the law of repudiation of a contract would lead to a different
    result.

[5]

The motion to re-open the appeal in this case must fail. The legal
    theory relating to repudiation was not raised at trial; indeed the word
    repudiation is not employed in the Statement of Claim. Nor was it advanced as
    a legal argument. In his opening argument, the plaintiffs trial counsel said:

Its the plaintiffs position, Your
    Honour that Toyotas conduct was tantamount to a breach of contract; that it
    acted unreasonably and in bad faith in
terminating
the amended LOC and
    that they breached the very terms of the LOC by failing to give appropriate
    notice; and in any event they cant rely on their own conduct in misleading the
    Plaintiffs, and that as a result of their wrongful
termination
the
    Plaintiffs are entitled to damages. [Emphasis added.]

[6]

The same point applies on the appeal. In both written and oral argument,
    the repudiation argument was entirely absent. As explained by LHeureux-Dubé
    J. in
R. v. Brown
, [1993] 2 S.C.R. 918, at p. 923:

Courts have long frowned on the practice of raising new
    arguments on appeal. The concerns are two-fold: first, prejudice to the other
    side caused by the lack of opportunity to respond and adduce evidence at trial
    and second, the lack of a sufficient record upon which to make the findings of
    fact necessary to properly rule on the new issue. [Citations omitted.]

While LHeureux-Dubé J. was writing in dissent, the
    majority did not take issue with this part of her judgment. See also:
College
    of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses)
,
    2008 ONCA 685, 93 O.R. (3d) 139, at para. 90 and
Kaiman v. Graham
,
    2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[7]

A party seeking to re-open an appeal after the appeal decision has been
    rendered faces a high hurdle. After more than 10 years of litigation, it would
    be unfair to permit the appellants to re-open their appeal on a different legal
    issue. In
Mujagic v. Kamps
, 2015 ONCA 360, 125 O.R. (3d) 715, at para.
    12, this court said that the power to re-open an appeal will be exercised
    sparingly and only where it is clearly in the interests of justice (citation
    omitted). It is not in the interests of justice that this appeal be re-opened.

[8]

The motion is dismissed with costs to the respondent.

Doherty J.A.

J.C. MacPherson J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Coburn v. Wilkie, 2016 ONCA 876

DATE: 20161121

DOCKET: C61086

MacPherson, Blair and Watt JJ.A

IN THE MATTER OF an application under subsection
    32)1) of the
Health Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule
    A, as amended.

AND IN THE MATTER OF Lillian Coburn, a patient at
    Centre for Addiction and Mental Health, Toronto, Ontario

BETWEEN

Lillian Coburn

Applicant

(Appellant)

and

Dr. Treena Wilkie

Respondent

(Respondent in Appeal)

Anita Szigeti and Joanna Weiss, for the appellant

Kendra Naidoo, for the respondent

Heard: November 15, 2016

On appeal from the order of Justice Edward Belobaba of
    the Superior Court of Justice, dated September 1, 2015.

BY THE COURT:

[1]

Ms. Coburn appeals from the order of Justice Belobaba dismissing her
    appeal from an order of the Consent and Capacity Board. The Board had affirmed
    the finding of Dr. Wilkie that Ms. Coburn was incapable of consenting to
    treatment involving the administration of anti-psychotic and mood stabilizing
    medication for a diagnosed psychiatric ailment.

[2]

On her behalf, Ms. Szigeti argues that the appeal judge erred:

(a) in finding that the Board had applied
    the correct test for capacity; and,

(b) in failing to find that the
    Boards decision was unreasonable, both generally and because there had been a
    breakdown in the doctor-patient relationship between Ms. Coburn and Dr. Wilkie
    and her resident psychiatrist Dr. Cyr.

[3]

We would not give effect to these submissions.

The
    Legal Test for Capacity

[4]

There are two elements of the test for determining whether a person is
    capable with respect to treatment under s. 4(1) of the
Health Care Consent
    Act, 1996
, S.O. 1996, c.2 (the
HCCA
). A person is capable if
    the person is able (i) to understand the information that is relevant to making
    a decision about the treatment; and, (ii) to appreciate the reasonably
    foreseeable consequences of a decision or lack of decision.

[5]

This proceeding and the appeal turn on the second element of the test. It
    is not contested that Ms. Coburn is able to understand the information with
    which she has been provided concerning the treatment proposed by her team of
    psychiatrists at CAMH, Dr. Wilkie and Dr. Cyr. The issue is whether she is able
    to appreciate the reasonably foreseeable consequences of a decision to reject
    that treatment.

[6]

Doctors Wilkie and Cyr propose to treat Ms. Coburn with anti-psychotic
    medications and mood stabilizing medications for a mental condition they have
    diagnosed as schizoaffective disorder (bipolar type), manifesting itself
    amongst other ways  in periods of delusion and paranoia. Ms. Coburn does not
    wish to undergo that treatment. She says that she has taken such medication
    before without benefit (the medical evidence is to the contrary), that she does
    not like the side effects, and that any symptoms she is displaying are the
    result of her various physical ailments (fibromyalgia and obstructive sleep
    apnea) and are not the result of a mental condition, as her physicians assert.

[7]

In its decision dated May12, 2015, the Board held that Ms. Coburn was
    not able to appreciate the consequences of her decision to reject the proposed
    treatment. Belobaba J. (the appeal judge) upheld the Boards decision.

The
    Test Applied

[8]

In support of her submission that the appeal judge erred in holding that
    the Board applied the proper test for capacity, Ms. Szigeti fastens upon a
    remark made by him to the effect that several sentences in the Boards
    reasons did not align with what was said by the Supreme Court of Canada in
Starson
    v. Swayze
, [2003] 1 S.C.R. 722. Quoting from
Starson
, at para.
    79, the appeal judge stated that while a patient must be able to recognize
    the possibility that he is affected by a mental condition, he does not have to
    agree with the attending physicians opinion regarding the cause of the
    condition. He then observed that the sentence in the Boards decision stating
    that LC is not able to appreciate there was any possibility she was suffering
    from any delusional or paranoid thinking misstated the legal requirement.

[9]

In Ms. Szigetis submission, having found this misstatement of the legal
    requirement, the appeal judge was required to hold that the Board had erred in
    law and therefore to set aside its decision.

[10]

We are not persuaded by this submission, for several reasons.

[11]

First, it is not clear to us that the isolated sentence referred to
    above misstates the proposition articulated in
Starson
. Indeed, it
    appears to track the first part of the
Starson
proposition cited by
    the appeal judge quite closely.

[12]

Secondly, although the isolated sentence makes no reference to Ms.
    Coburns right to disagree with the physicians, the comment by the Board was
    not made in that context. It was made in support of the inference that Ms.
    Coburn had no trust in the health practitioners at CAMH because she could not
    make the connection between her health issues and her mental health issues.  Nonetheless,
    the Board was clearly alive to the patients right to disagree because it based
    its distinction between this case and
Starson
on that very point
    (Professor Starson could appreciate the consequences of his decisions and was
    entitled to disagree and decline treatment, even if it may not have wise to do
    so; Ms. Coburn did not have the necessary appreciation to enable her to do so).

[13]

Finally, the appeal judge did not base his decision on the several
    sentences he referred to.  He based his decision on a review of the Boards
    reasons as a whole and was satisfied, having done so, that the Board had
    applied the proper test for capacity under s. 4(1) of the
HCCA
, in
    spite of the isolated misstatements that were identified.  We agree.

[14]

In a further submission, advanced during oral argument, Ms. Szigeti
    appeared to argue that the Board erred by applying the test in a more stringent
    fashion than that called for in
Starson
. The Board focussed too
    closely on the label mental condition, she contended, and too little on the
    fact that the symptoms Ms. Coburn was experiencing from her fibromyalgia and
    sleep apnea problems  fearfulness, anxiety, stress, irritability, loss of
    concentration, lack of sleep  can affect mood and behavioural patterns in the
    same way as a mental disorder diagnosed in the form of a particular label. Labelling
    should not determine the test.

[15]

Starson
sets a low threshold and makes clear that a patients
    refusal to acknowledge a mental illness is insufficient, on its own, to prove
    incapacity.  Here, Ms. Coburn was mindful of the fact that she was struggling
    with a number of symptoms that manifest themselves as mood or behavioural
    issues. Because she declined to accept their characterization under a mental
    condition label does not detract from the fact that she recognized them and
    their impact on her.  The Board was wrong, therefore, to hold that Ms. Coburn
    was unable to appreciate that she was suffering from a mental condition and to
    deprive her of her right to disagree with the doctors diagnosis and proposed
    treatment.

[16]

Ms. Szigeti worries that if the Board begins to parse each and every
    symptom exhibited by a patient to determine whether that symptom amounts to a
    mental condition, the Board will be returning to a pre-
Starson
environment where an uncooperative patient is required to show that he or she
    is on board with everything the doctors are saying.

[17]

We do not read the Boards decision as simply an exercise in labelling
    or as pointing towards any such result, however. As noted above, the Board found
    that Ms. Coburn was suffering from a delusional disorder and a mood disorder
    caused at least in part by a mental condition. Ms. Coburn did acknowledge that
    she was suffering from symptoms such as fearfulness, anxiety, stress, lack of
    sleep and irritability; but she denied that she was experiencing periods of
    delusion and paranoia.

[18]

While it is true that a patient need not agree with or accept a proposed
    treatment,
Starson
does not eliminate the distinction between physical
    and mental conditions and the appreciation of their consequences. The Court
    made it clear that a patient must be able to recognize the possibility that he
    or she is affected by a mental condition and to appreciate the consequences of
    the decision not to agree with a treatment proposal. As Major J. said on behalf
    of the majority, at para. 79:

While a patient need not agree with a particular diagnosis,
if it is demonstrated that he has a mental condition, the
    patient must be able to recognize the possibility that he is affected by that
    condition
.

As a result, a patient is not required to describe his mental
    condition as an illness, or to otherwise characterize the condition in
    negative terms. Nor is a patient required to agree with the attending
    physicians opinion regarding the cause of that condition.
Nonetheless, if the patients condition results in him being
    unable to recognize that he is affected by its manifestations, he will be
    unable to apply the relevant information to his circumstances, and unable to
    appreciate the consequences of his decision
.

[Emphasis
    added.]

[19]

Here, the Board arrived at its decision by following that very path. The
    Board specifically examined the evidence by asking itself Did the evidence
    establish that LC was unable to appreciate the reasonably foreseeable
    consequences of a decision or lack of decision about the treatment in
    question?  the second branch of the s. 4(1) test. This was the proper
    approach.

[20]

The Board accepted that Ms. Coburns symptoms could be attributable, in
    part, to her pain, sleep deprivation and her unhappiness at being in hospital.
    After reviewing the record and the testimony of Dr. Wilkie, Dr. Cyr and Ms.
    Coburn, however, the Board determined that her symptoms were caused, at least
    in part as well, by her mental condition and that she was not able to
    appreciate that she was suffering from any delusional or paranoid thinking or
    that there was the possibility of any link between her symptoms, as manifested,
    and a mental condition. The Board found that Ms. Coburn was suffering from a
    delusional disorder and  a mood disorder that at least in part is caused by a
    mental condition although complicated by her sleep and pain issues. It
    concluded that:

Without being able to make the connection between the
    manifestations of mental disorder, and its effect on her, [Ms. Coburn] is
    unable to make a risk/benefit analysis of taking or not taking the medications
    designed to deal with these symptoms, a fact which renders her incapable of
    making decisions regarding treatment of her condition.

[21]

These findings were open to the Board on the record. Viewing its reasons
    as a whole, we are satisfied  as was the appeal judge  that the Board applied
    the proper test for capacity.

The
    Boards Decision was not Unreasonable

[22]

Ms. Szigeti also argues that the Boards decision was unreasonable
    because the evidence did not support a finding that Ms. Coburn was suffering
    from a mental condition. This argument overlaps with the former submissions,
    because it goes to the underpinnings of those submissions, and we reject it for
    similar reasons.

[23]

There is ample support in the record for the finding. Ms. Coburns
    denial that she is suffering from a mental condition is hardly dispositive. Indeed,
    as mentioned above, it is reflective of the problem. Nor does the fact that the
    treating physicians recognized that some of Ms. Coburns symptoms could flow
    from her various physical ailments preclude a diagnosis that she was also
    suffering from a mental condition manifesting itself in delusions and paranoia.

[24]

Dr. Cyr, one of Ms. Coburns attending psychiatrists, testified that Ms.
    Coburn was suffering from a mental condition known as schizoaffective disorder,
    characterized by both psychotic and manic symptoms and manifesting itself in
    persecutory delusions, difficulty sleeping and wide mood shifts. This
    schizoaffective disorder impaired her cognitive functioning. Dr. Cyr also
    testified that Ms. Coburns physical complaints could not explain all of her
    symptoms and that the burden of her symptoms was attributable to her mental
    condition and went beyond what would be expected of someone who was
    experiencing a normal reaction to stress. In her opinion, Ms. Coburn was unable
    to appreciate the reasonably foreseeable consequences of a decision regarding
    the proposed treatment. The Board was entitled to accept this evidence, as it
    did.

[25]

In the end, the Board determined that, unlike Professor Starson, Ms.
    Coburn was unable to appreciate the consequences of her decision to reject
    treatment. She was unable to evaluate the information provided to her by
    medical personnel. She was unable to appreciate that she was exhibiting
    continuous manifestations of paranoia and was at times delusional as distinct
    from simply experiencing pain as a result of her physical ailments such as
    fibromyalgia and sleep apnea, as she claimed. These findings were open to the
    Board on the record and were not unreasonable.

[26]

The Boards decision is entitled to deference.

The
    Doctor-Patient Relationship

[27]

Like the appeal judge, we do not think the record supports the ground of
    appeal that there had been a clear breakdown in the doctor-patient relationship.

[28]

As noted, the Board found that because of her inability to appreciate
    that there was any possibility she was suffering from any delusional or
    paranoid thinking, Ms. Coburn has absolutely no trust in the health
    practitioners at CAMH or in any doctors paid by OHIP. This undoubtedly explains
    the tension between her and her physician care-givers, but must not be uncommon
    in similar patient-doctor situations and cannot by itself establish a breakdown
    in relations.

[29]

Despite this state of affairs, it appears that there were extensive
    discussions between the doctors and Ms. Coburn, albeit sometimes tinged with an
    element of hostility on her part. There is nothing to indicate that Ms. Coburn
    failed to receive any necessary information regarding her proposed treatment as
    a result of these issues or that they in any way interfered with her ability to
    understand the information she received. She was simply unable to evaluate the
    impact of that information and to appreciate the consequences of refusing that
    treatment.

[30]

We would not give effect to this ground of appeal.

Disposition

[31]

For the foregoing reasons, the appeal is dismissed.

Released: November 21, 2016

J.C. MacPherson J.A.

R.A. Blair J.A.

David Watt J.A.