Acting for an appellant can feel like climbing Mount Everest. Leading judgments from the Supreme Court of Canada make overturning a trial judgment seem insurmountable. InHousen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.) the Court held that a trial judge’s findings of fact cannot be overturned in the absence of a palpable and overriding error. Inferences drawn from the facts also cannot be overturned in the absence of a palpable and overriding error, and a finding of negligence cannot be overturned in the absence of a palpable and overriding error. What this has meant in practice is that, if there is evidence in the record upon which a trial judge could have made the challenged findings of fact, the decision will not be overturned.

Long before the Housen decision, however, it was recognized that where a trial judge misapprehended or failed to appreciate the significance of relevant evidence, there would be an error of law which might warrant appellate intervention. As this principle was not expressed in this manner in Housen, it did not receive much attention thereafter. Nonetheless, it is clear that decisions setting forth this view have not been overturned and represent an alternative route to the setting aside of a trial judgment. That is what I propose to discuss in this paper.

In R. v. Harper, [1982] 1 S.C.R. 2 (S.C.C.), Estey J. for the Supreme Court of Canada said: “An appellate tribunal has neither the duty nor the right to reassess the evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, disclose a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.”

The principle in Harper was applied by the Ontario Court of Appeal in the civil context inCyanamid of Canada Ltd. v. Bigelow Liptak of Canada Ltd. (1993), 99 D.L.R. (4th) 118 (Ont. C.A.) where Goodman J.A. stated with reference to the Harper decision: “Those words were stated in the context of a criminal case but, in my opinion, they are equally applicable in a civil case where the reasons for judgment are such that it is not clear whether all relevant evidence has been considered and the reason for rejecting it, if such is the case.”

In Keljanovic Estate v. Sanseverino (2000), 186 D.L.R. (4th) 481 (Ont. C.A.) O’Connor J.A. explained this principle in more detail, characterizing it for the first time as a processing error. “The second kind of error that may warrant appellate interference is what might be called a ‘processing error’, that is an error in processing the evidence that leads to a finding of fact. This type of error arises when a trial judge fails to appreciate the evidence relevant to a factual issue, either by disregarding or misapprehending that evidence. When the appellate court finds such an error it must first determine the effect of that error on the trial judge’s reasoning. It may interfere with the trial judge’s finding if it concludes that the part of the trial judge’s reasoning process that was tainted by the error was essential to the challenged finding of fact.”

Although these cases were decided before the Housen decision, I believe the principles set out therein have survived the reasoning in Housen. For example, in Waxman v. Waxman(2004), 186 O.A.C. 201 (C.A.), the Court said at paras. 343-344: “The failure to consider relevant evidence can amount to a palpable error if the evidence was potentially significant to a material finding of fact. The appellants bear the onus of demonstrating a failure to consider such evidence. The mere absence of any reference to evidence in reasons for judgment does not establish that the trial judge failed to consider that evidence. The appellants must point to something in the trial record, usually in the reasons, which justifies the conclusion that the trial judge failed to consider certain evidence. When assessing an argument that a trial judge failed to consider relevant evidence, it is helpful to begin with an overview of the reasons provided by the trial judge. If that overview demonstrates a strong command of the trial record and a careful analysis of evidence leading to detailed findings of fact, it will be difficult for an appellant to suggest that the mere failure to refer to a specific piece of evidence demonstrates a failure to consider that evidence. The failure to refer to evidence in the course of careful and detailed reasons for judgment suggests, not that the trial judge ignored that evidence, but rather that she did not regard that evidence as significant. The reasons for judgment in this case leave no doubt that the trial judge knew this record, appreciated the contentious factual issues, and understood the positions of the parties and the evidence they relied on.”

In Peart v. Peel Regional Police Services Board (2006), 217 O.A.C. 267 (C.A.) at para. 158, Doherty J.A. provided a helpful summary of different types of processing errors: “It is probably impossible to provide an exhaustive list of the errors in the fact finding process that could potentially produce an unreasonable finding of fact. The list, however, would include:

the failure to consider relevant evidence;
the misapprehension of relevant evidence;
the consideration of irrelevant evidence;
a finding that has no basis in the evidence;
a finding based on an inference that is outside of even the generous ambit within which there may be reasonable disagreement as to the inference to be drawn; that is, an inference that is speculation rather than legitimate inference.”

In Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada(2007), 85 O.R. (3d) 185 (C.A.) the Court of Appeal overturned a comprehensive trial judgment on the basis that the trial judge had failed to consider admissions made by a representative of one of the parties. The majority said at paras. 94 and 95: “Rick Lovat’s evidence bore directly on this issue and, hence, on material findings of fact that led the trial judge to conclude that the faulty or improper design exclusion did not apply. His evidence was highly relevant to the question of whether the failure of the TBM’s sealing system due to excess differential deflection was foreseeable and foreseen and, thus, to the ultimate question of whether the faulty or improper design exclusion applied. In these circumstances, Rick Lovat’s testimony could not be disregarded. We conclude that the trial judge’s failure to consider the import of this evidence taints his foreseeability findings with palpable and overriding error warranting appellate intervention.” It should be noted that the decision of the Court of Appeal was set aside by the Supreme Court of Canada at [2008] 3 S.C.R. 453, however this was based on insurance issues in the case and the above noted principle extracted from the reasons of the majority was not called into question in the Supreme Court of Canada decision.

In the recent case of Johnson v. Milton (Town) (2008), 91 O.R. (3d) 190 (C.A.) in setting aside a decision on contributory negligence, Moldaver J.A. stated at para. 62: “With respect, the critical findings that led the trial judge to conclude that the Johnsons were not negligent in the operation of their bicycle are not borne out by the evidence. In arriving at those findings, the trial judge either ignored or misstated pertinent evidence. Had he properly construed the evidence, I am satisfied that on this record he would have found that Mr. Johnson was operating the bicycle in a negligent manner and that his negligence materially contributed to the accident. In particular, the evidence establishes that Mr. Johnson was travelling too fast for the road conditions and was not keeping a proper lookout.”

It can be seen from this review of decisions rendered since Housen v. Nikolaisen that a misapprehension of the evidence by a trial judge or a failure to appreciate the significance of relevant evidence, can lead to the overturning of a trial judgment. What can also be seen from these decisions is that, in appeals alleging this type of processing error, the reasons for judgment of the trial judge take “centre stage.” In this respect, there is much to be learned from the criminal law context to assist in advancing appeals of this kind in the civil context.

In R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), Doherty J.A. said at p. 541: “When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.”

Criminal law jurisprudence has also emphasized the importance of adequate reasons for judgment. In R. v. Sheppard, [2002] 1 S.C.R. 869 (S.C.C.), Binnie J. said at paras. 15, 28 and 46:

“Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of fact and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and the appellate courts.”

“The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached where, as here, the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.”

“These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some circumstances consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properlyscrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function.” (Emphasis in original)

These important statements have now been transposed into the civil context, and the proposition that inadequate reasons for judgment can amount to an independent ground of appeal has recently been applied in Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388 (C.A.), a case involving a claim on an insurance policy. Epstein J.A. said at paras. 88 and 99-100.

“Against this background, it was incumbent upon the trial judge to explain, even in succinct terms, how he resolved the challenges to the credibility and reliability of the evidence upon which Sagl relied in support of the amount of her loss, particularly in the light of his own concern expressed at para. 195, where he states: ‘I have some difficulty comprehending how the plaintiff could remember 2,580 items, especially those that were not on display at 2415 but were in storage areas.’”

“In my view, the trial judge fell into error by failing to explain how he reconciled the obvious problems associated with Sagl’s credibility and reliability, especially given the challenges to the authenticity, contents and values of the inventory she provided to Elliott and with her willingness to ask the trial judge to accept Elliott and his report as supporting her claim that the value of her art collection lost in the fire was in excess of $9,000,000. As noted in Sheppard, at para. 46, where ‘the path taken by the trial judge through confused or conflicting evidence is not at all apparent,…the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal.’”

“That is the situation here; the unarticulated basis of the trial judge’s conclusions, if any, concerning Sagl’s reliability, credibility, and her willingness to put forward a proof of loss that depended on Elliott, is certainly not apparent from the record. Therefore, the basis of the trial judge’s acceptance of her evidence supporting the amount of her loss cannot be ascertained. In short, the trial judge’s reasons fail to satisfy the second purpose articulated in F.H. v. McDougall: that is, they fail to explain why the trial judge accepted Sagl’s evidence as to her loss in the light of the myriad problems with her credibility and reliability. This amounts to reversible error, and in my view, taken alone is a sufficient reason to order a new trial.”

With this background, we can now review the application of these principles in the context of appeals in medical malpractice cases. There appears to be widespread belief that the Court of Appeal has been quick to overturn decisions in favour of Plaintiffs in these cases: see for example Erik S. Knutsen “Causation in Medical Malpractice at the Court of Appeal forOntario” OTLA Medical Malpractice News, September 2008. A close review of the decisions reveals that, although frequently not referred to as such, there were processing errors at play which caused the Court to lose confidence in the sufficiency of the reasons for judgment.

In Cottrelle v. Gerrard (2004), 67 O.R. (3d) 737 (C.A.) the Plaintiff, who suffered from diabetes, consulted her family doctor after developing a sore on her foot. Within three months, the sore had become infected and resulted in amputation of her left leg below the knee. The trial judge found that the doctor failed to examine the foot and to monitor the Plaintiff’s condition. The Court of Appeal reversed the decision, holding that the Plaintiff had not satisfied the test for causation. The Plaintiff’s expert was unable to testify that earlier intervention would have saved the leg on a balance of probabilities. The judge had relied on the defence expert that the Plaintiff missed a “window of opportunity” which might have made a difference before amputation.

Sharpe J.A. said that the Court was unable to discern the test for causation applied by the trial judge and held that there was no evidence on a balance of probabilities that, but for the physician’s negligence, the Plaintiff would not have lost her leg. He said at para. 31: “The evidence demonstrated it is more likely than not that even if the appellant had lived up to the standard of care, the respondent would have lost her leg” and at para. 36: “In view of the evidence I have reviewed, and in view of the respondent’s concession that there was no evidence to suggest that it was more than likely a better outcome would have followed had the appellant acted with care, the trial judge’s finding reveals either a misapprehension as to the law or a palpable and overriding error on the facts.”

Thus, while the application of the wrong test for causation was an error of law, the error stemmed from the trial judge’s failure to appreciate that the expert witnesses were unable to state that causation was established on a balance of probabilities.

Van Dyke v. Grey Bruce Regional Hospital (2005), 255 D.L.R. (4th) 397 (Ont. C.A.) involved the improper administration of Gentamicin, causing vestibular toxicity, dizziness and headaches. The trial judge found in favour of the Plaintiff in a claim against the otolaryngologist.

Based upon the trial judge’s finding of negligence, Doherty J.A. described the issue and conclusion on causation as follows: “On the findings of negligence made against Dr. Marsh, Mr. Van Dyke could succeed in establishing liability only if he could show that the delay of two or three days in seeking medical care after he had developed symptoms of vestibular toxicity prevented the reversal, at least in part, of those symptoms. The trial judge did not address this issue in her reasons. I do not think there is any evidence capable of supporting a finding, on the balance of probabilities, that but for the delay in discontinuing Gentamicin between June 30 and July 3, Mr. Van Dyke’s ultimate condition would have been better.” In reviewing the trial record, Doherty J.A. held that the expert witnesses had not addressed the effect of the two to three day delay in discontinuing Gentamicin. There was thus an absence of evidence on the point. The trial judge’s finding of causation, made in the absence of evidence, was a serious processing error.

In Barker v. Montfort Hospital (2007), 278 D.L.R. (4th) 215 (Ont. C.A.), the Plaintiff’s case again foundered on causation. The action involved the failure to properly treat a bowel obstruction, causing the loss of part of the Plaintiff’s intestine. The Court of Appeal dismissed the appeal on the trial judge’s finding of negligence but, as in the above noted cases, held that there was an absence of evidence on causation. As in Van Dyke, the difficulty arose due to a finding of negligence that differed from the theory advanced by the Plaintiffs, in this case that the surgery should have been carried out by late in the day on April 5, instead of April 4 or early April 5. The result was that there was no evidence on causation for the critical time period.

Rouleau J.A. for the majority said at para. 49: “As I outlined earlier in these reasons, there is, in my view, no way of determining on this record whether the volvulus was formed on April 3, 4 or 5. The evidence, therefore, does not establish that it is more likely than not that the bowel would have been alive and salvageable at the time surgery ought to have been performed. In the absence of evidence as to when, within the April 3 to 5 timeframe, the volvulus formed, I conclude that the respondents have done no more than show that surgery carried out eight to fourteen hours earlier would have afforded Ms. Barker a chance of avoiding the injury. This does not satisfy the requirement of showing that an earlier surgery would, more likely than not, have avoided the injury.” A processing error resulted from the trial judge’s finding of causation made in the absence of evidence.

Aristorenas v. Comcare Health Services (2007), 83 O.R. (3d) 282 (C.A.) also involved the thorny issue of causation. The Plaintiff developed an infection following a caesarian delivery which was improperly monitored by her physicians, resulting in necrotizing fasciitis. The trial judge’s finding of negligence was not at issue on the appeal. On causation, the trial judge said: “This would seem to be an appropriate case for the ‘robust and pragmatic approach’ to fact finding in relation to causation permitted by Snell v. Farell. This rare disease can be a complication of an infected wound. It is a matter of common sense that the negligence or delay on the part of the defendants allowed the wound to reach a complicated state and lead to rapid unpredictable consequences. There is absolutely no evidence to suggest that the plaintiff would have otherwise developed this serious complication but for the negligent diagnosis and treatment by the defendants. Therefore, as a matter of common sense, I conclude that the plaintiff has established, on a balance of probabilities, that the defendants’ negligence materially contributed to the injury.”

This approach did not find favour with the majority in the Court of Appeal. Rouleau J.A. stated: “The ‘robust and pragmatic’ approach is not a distinct test for causation but rather an approach to the analysis of the evidence said to demonstrate the necessary causal connection between the conduct and the injury. Importantly, a robust and pragmatic approach must be applied to evidence; it is not a substitute for evidence to show that the defendant’s negligent conduct caused the injury.” Rouleau J.A. ultimately found that there was no evidence that the delay in treating the wound caused or materially contributed to the Plaintiff contracting the necrotizing fasciitis. He said “Even if you assume that there is a link between the delay in the treatment of an infection and contracting necrotizing fasciitis, no witness considered or gave evidence as to what effect the three-day delay in performing the first debridement had in this case.” The trial judge’s finding on causation was again made in the absence of evidence.

In Power v. Carroll (2007), 222 O.A.C. 205 (C.A.), a thoracic surgeon was found negligent in performing a mediastinoscopy, an investigative procedure used to assess the stage of lung cancer. In advancing the mediastinoscope, the surgeon took a 0.7 centimetre biopsy of what he thought was a node suspicious for cancer but which turned out to be the oesophagus, perforating it in the process. The trial judge found that the surgeon should have taken a smaller biopsy and made a greater effort to differentiate between the nodes and the oesophagus before taking the biopsy. The Court of Appeal reversed the finding of negligence, saying “There is no evidence to support the trial judge’s finding that Dr. Carroll ought to have taken a smaller biopsy.” In addition, after a lengthy review of the evidence of the defence expert, the Court held that the trial judge had mischaracterized what the trial judge had referred to as a “concession” relating to a passage in the surgeon’s operative note. The trial judge’s misapprehension of the evidence amounted to a processing error, with the result that the trial judgment was set aside.

Fisher v. Atack (2008), 242 O.A.C. 164 (C.A.) involved a complicated delivery and a failure to monitor the fetal heart rate for 12-17 minutes, during which the doctors did not intervene. The baby suffered asphyxia during labour resulting in cerebral palsy. The claim against the obstetrician was dismissed, but the trial judge found the nurses were negligent in failing to auscultate the heart rate for a period some two to three hours before birth. Had the monitoring occurred earlier, there would likely have been an expedited delivery, sparing the baby the magnitude of her injuries. The theory of causation found by the trial judge differed from that advanced by the Plaintiffs. Simmons J.A. said on behalf of the Court at paras. 63-66.

“The trial judge’s central findings that the prolonged partial asphyxia occurred between 6:00 and 7:30 and that the nurses would have detected it had they auscultated the fetal heart as required at 6:30 and 7:00 p.m. rest on a conclusion that the prolonged partial asphyxia that occurred before 9 p.m. was detectable by intermittent auscultation every half hour. However, the trial judge made no explicit finding to that effect, stating instead that it was ‘reasonable to infer that if the nurses auscultated the fetal heart [as required], they would have detected decelerations or perhaps a bradycardia.’

In my view, taken as a whole, the trial judge’s reasons indicate that she made the final four findings based on common sense, applying the robust and pragmatic approach. Although I agree that that approach can be used to evaluate evidence and to draw reasonable inferences concerning the issue of ultimate causation, particularly in a case involving complex medical evidence, it cannot be used as a substitute for reviewing relevant evidence and making necessary findings of fact.

None of the expert witnesses at trial testified that Alecia’s injury was caused in the precise manner determined by the trial judge. As I have said, the respondents’ experts testified that the asphyxial insult began between 40-50 minutes and up to one to two hours before birth and that the injury happened within minutes of birth. The balance of the expert evidence was divergent, but no one expressed an opinion that corresponds to the findings of trial judge.

Further, and in particular, there was no expert evidence specifically relating to the crucial issues of whether the earlier period of prolonged partial asphyxia likely occurred between 6:00 and 7:30 p.m. and concerning whether and when the earlier period of prolonged partial asphyxia would likely have been detected by intermittent auscultation at half hour intervals. However, although there was no expert evidence at trial addressing these issues specifically, there was extensive expert evidence concerning the nature of prolonged partial asphyxia and some expert evidence concerning when and how it can be detected. The trial judge did not review any of this evidence.”

Thus, the Court of Appeal held that the trial judge’s findings of fact on causation were made in the absence of evidence, a processing error similar to that in other cases noted above.

The recent decision in Rowlands v. Wright, 2009 ONCA 492 (C.A.) involved a laparoscopic surgery during which the surgeon mistakenly cut the Plaintiff’s common bile duct, believing it to be the cystic duct. The trial judge found the surgeon used the proper techniques to identify the cystic duct but that “a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.”

The Court of Appeal disagreed with this approach, saying “In the face of an apparently conflicting medical opinion as to what actions were required in the circumstances, it was not appropriate to assess the surgeon’s conduct based on common sense.” The Court went on to say “The fact that Dr. Wright may have used the proper techniques does not demonstrate that he went far enough in dissecting before making the decision to cut. There is a difference between using the appropriate technique and executing it properly. Based on my review of the trial judge’s reasons, he did not make a finding concerning this important issue and concerning whether Dr. Wright, in fact, obtained the critical view. Such findings are essential to determining whether Dr. Wright met the standard of care. In the circumstances, I see no option but to order a new trial.” The trial judge had thus made a finding of negligence without the necessary factual foundation, another example of a processing error similar to that seen in some of the cases noted above.

The purpose of this review is not to comment on whether or not these cases were correctly decided. It is to show that, in advancing an appeal in the medical malpractice context, there is scope to carefully review the evidence within the framework of the trial judge’s reasons for judgment. The purpose is to try and demonstrate to the Court of Appeal that the trial judge either misapprehended or failed to appreciate the significance of relevant evidence. The ability to show the Court that a processing error has been made in the trial judge’s consideration of the evidence can go a long way towards the prosecution of a successful appeal.