Benhaim v. St Germain, 2016 SCC 48 (Civil liability — Medical malpractice — Negligence)
On appeal from a judgment of the Quebec Court of Appeal (2014 QCCA 2207), setting aside in part a decision of Marcotte J. (2011 QCCS 4755).
E, a non‑smoker who exercised regularly and took care of himself, died tragically of lung cancer at the age of 47. His partner, in her own name, in her capacity as tutor to her son, and as E’s universal legatee, brought an action against E’s physicians. She alleged that the negligent delay in diagnosing E’s cancer caused his death. The physicians argued that the cancer would likely have taken E’s life even if he had been promptly diagnosed, and therefore, that the delay in diagnosing him was not the cause of his death. At trial, the three expert witnesses formed opinions on the basis of incomplete information and each opinion involved some degree of speculation and estimation as to the staging of E’s lung cancer. The trial judge allowed the action in part on the basis that while E’s physicians were both negligent, their negligence did not cause E’s death. In coming to this conclusion, the trial judge recognized that she could draw an adverse inference of causation against the physicians because their negligence made it impossible to prove causation, but she drew no such inference. Damages were only awarded to E’s partner personally and in her capacity as universal legatee for the anguish caused by the physicians’ negligent handling of E’s treatment. The Quebec Court of Appeal reversed that decision. The majority held that the trial judge erred in law by failing to draw an adverse inference of causation. The concurring judge concluded that the trial judge should have found that causation had been established.
Held (4-3) : The appeal should be allowed.
Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.:
A trier of fact is not required to draw an adverse inference of causation or apply a presumption of fact as defined in art. 2849 of the Civil Code of Québec in medical liability cases where the defendant’s negligence undermines the plaintiff’s ability to prove causation and where the plaintiff adduces at least some evidence of causation. This Court’s decisions in Snell v. Farrell,  2 S.C.R. 311, and St‑Jean v. Mercier, 2002 SCC 15,  1 S.C.R. 491, make it clear that in such circumstances, an adverse inference of causation is one that trial judges are permitted to draw. It is not one they are required to draw. In Quebec civil law, the adverse inference discussed in Snell constitutes nothing more than a presumption of fact as defined in art. 2849, and the principles laid down in Snell for drawing inferences as part of the ordinary fact‑finding process apply to triers of fact making determinations on causation. The principles must not be interpreted in a manner that alters the burden of proof or departs from the criteria for establishing presumptions of fact. In weighing the evidence, trial judges may consider the ability of the parties to produce evidence. Whether the inference or presumption arises on the facts must be assessed according to a legal, not a scientific, standard. Furthermore, because an adverse inference of causation is a component of the fact‑finding process, the decision as to whether the inference is warranted in a particular case falls within the discretion of the trier of fact, to be determined with reference to all of the evidence, and is reviewable on the stringent standard of palpable and overriding error.
In this case, despite using permissive language to describe the adverse inference discussed in Snell, the Court of Appeal failed to give effect to its discretionary nature. Indeed, by reversing the trial judge’s decision on the basis of an error of law the court wrongly treated the inference as compulsory. The trial judge did not commit an error of law in applying the rules of evidence. She applied St‑Jean, pursuant to which presumptions of causation can be applied only when they are serious, precise and concordant. She did not think that these criteria were met in this case, as she chose to believe the physicians’ expert over the plaintiff’s experts. She was not required by law to apply a presumption of fact against the physicians simply because (i) it was impossible to prove causation as a result of the physicians’ fault; and (ii) the plaintiff adduced some affirmative evidence that the physicians’ fault was linked to the loss.
The Court of Appeal also failed to show deference to the trial judge’s weighing of the evidence. The trial judge did not improperly rely on the speculative expert evidence adduced in this case at the expense of statistical evidence. Trial judges are empowered to make legal determinations even where medical experts are not able to express an opinion with certainty. Moreover, while courts may take statistics into account when determining causation, statistical evidence should be approached with caution — it is not determinative. It is also for the trial judge to decide what weight, if any, to give to statistical evidence, and drawing an inference from such evidence is an inherent, and often implicit, part of the fact‑finding process. It must be interpreted in light of the whole of the evidence, and that interpretation is entitled to considerable deference on appeal. In this case, the trial judge did not commit a palpable and overriding error in relying on the opinion of an expert who acknowledged the uncertainty in his opinion. She carefully weighed the evidence as a whole, including the statistical evidence, the evidence specific to E, and the three expert opinions, all of which involved some speculation. She made no palpable and overriding error in finding that the plaintiff had failed to establish causation on a balance of probabilities.
Per Abella, Côté and Brown JJ. (dissenting):
There is agreement with the majority that the Court of Appeal erred in characterizing as an error of law the trial judge’s failure to draw an adverse inference or to apply a factual presumption under the Code. However, the Court of Appeal did not misstate the rule described in Snell and St‑Jean. Rather, it correctly summarized Snell and held that judges are permitted to draw an unfavourable inference in some circumstances.
Nevertheless, the Court of Appeal’s mischaracterization of the trial judge’s failure to draw an adverse inference is of no consequence to the outcome of the case, because that failure constituted a palpable and overriding error. The trial judge committed three errors in her understanding of the evidence. First, she misconstrued the physicians’ expert’s testimony. Second, she omitted key objective evidence, namely the fact that E survived more than 31 months even though the life expectancy of patients diagnosed with stage III to stage IV lung cancer is 8 to 12 months. This evidence was supported by uncontested statistical data, and while such data should not be the sole basis for drawing an inference or applying a presumption of fact, it may help to confirm the trial judge’s factual determinations. Third, she erred in the resulting inference‑drawing process itself. Had the trial judge disregarded the highly speculative facts on which the physicians’ expert’s testimony was based, and had she taken into account E’s survival period, she would have drawn an inference of causation. It was a palpable and overriding error not to apply the presumption in art. 2849 of the Code. In light of the trial judge’s errors, it was the role of the Court of Appeal to intervene and reweigh the evidence.
REASONS FOR JUDGMENT: Wagner J. (McLachlin C.J. and Karakatsanis and Gascon JJ. concurring)
DISSENTING REASONS: Côté J. (Abella and Brown JJ. concurring)
Neutral Citation: 2016 SCC 48
Docket Number: 36291
APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Association of Justice Counsel v. Attorney General of Canada (FC)
Canadian Charter of Rights and Freedoms – Labour relations – Policy grievance
Since the early 1990s, the employer, the Immigration Law Directorate of the Quebec Regional Office of the Department of Justice Canada, has required its counsel to perform standby duty, generally from 5:00 to 9:00 p.m. on weekdays and from 9:00 a.m. to 9:00 p.m. on weekends, to respond to or present stay applications in the Federal Court. Before April 1, 2010, standby duty was voluntary for counsel, who were compensated through management leave based on the number of days spent on standby, regardless of whether there was an emergency. Starting on April 1, 2010, the employer informed its employees that they would no longer be compensated for their standby hours. They would be paid in cash or compensatory time off only for the hours they worked in the evenings and on weekends. In response to that announcement, counsel stopped volunteering. The employer’s reaction was to require that all counsel be available for standby duty an average of one to three times a year, on a rotational basis, with authorization to arrange for replacements with one another. On May 18, 2010, the applicant, the Association of Justice Counsel, filed a policy grievance challenging the employer’s new directive requiring standby duty outside normal work hours. The Public Service Labour Relations board allowed the policy grievance. The Federal Court of Appeal allowed the application for judicial review and the grievance was returned to a new adjudicator.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Jacques Cyr v. Her Majesty the Queen
Canadian Charter of Rights and Freedoms – Criminal law
Mr. Cyr and Ms. Miron were spouses from 1999 to 2004, and their son was born a few days after they separated. Multiple family proceedings were subsequently brought in the civil courts. On the morning of March 12, 2012, an incident occurred when Ms. Miron took her son to school and Mr. Cyr showed up there. He was charged with assault, intimidation, harassing telephone calls, criminal harassment and death threats. The Municipal Court of Montréal convicted the Applicant of assault and intimidation. The Quebec Superior Court dismissed the motion to adduce new evidence, dismissed the appeal and affirmed the trial judgment. The Quebec Court of Appeal dismissed the motion for leave to appeal.
Calvin Prosser v. Her Majesty the Queen
(Ont.) (Criminal) (By Leave)
Charter of Rights and Freedoms – Criminal Law – Search and seizure
Acting on tips from confidential informants regarding drug dealing, the police obtained warrants to search Mr. Prosser’s apartment and a motor vehicle. No information from the informants indicated that drug dealing or related activity occurred at Mr. Prosser’s apartment although their information linked drug dealing to his apartment building, the vicinity, and the vehicle. The officer who authored the Information to Obtain the warrants stated in his supporting affidavit an opinion that Mr. Prosser would keep his drugs, money and firearms with him when he was not in his vehicle. The apartment and the vehicle were searched. In the apartment, the police seized cash, cocaine, weigh scales, cell phones, ammunition, and an unlicensed, loaded firearm. Mr. Prosser brought a motion to exclude the evidence for breach of s. 8 of the Canadian Charter of Rights and Freedoms. At the hearing of the motion, the same officer gave testimony that, in his opinion, drug dealers keep drugs, money and firearms close to where they are physically located. The trial judge dismissed Mr. Prosser’s motion and admitted the evidence. Mr. Prosser was convicted of possession of cocaine for the purpose of trafficking, two firearms offences and possession of proceeds of crime. The Court of Appeal for Ontario dismissed an appeal from the convictions.
Marc-André Larocque v. Agence du revenu du Québec
Taxation – Time – Impossibility to act
The applicant was the sole shareholder and director of a company operating as Construction LMA (“CLMA” or “LMA”), which specialized in the promotion and construction of detached houses. On January 13, 2009, CLMA sold the applicant a property. The act of sale provided that the applicant transferred his right to a QST new housing rebate to CLMA in return for a credit equal to the amount of the rebate. CLMA subsequently filed a QST rebate application with the Agence du revenu du Québec (the respondent or “ARQ”).
More than two years later, the ARQ conducted a tax audit of CLMA, as a result of which it denied its application and demanded repayment of the amounts credited. Since those amounts had been claimed as a result of a notarial error in the act of sale, CLMA repaid them to the respondent.
The applicant then filed an application for a “new residential rental property QST rebate” under s. 378.16 of the Act respecting the Québec sales tax, CQLR, c. T‑0.1 (“AQST”). On October 17, 2011, the respondent issued a notice of assessment to the applicant denying his application, in part because it had been filed outside the two‑year time limit set out in s. 378.16 AQST. The applicant then challenged the notice of assessment in question. The Court of Québec allowed the motion to appeal assessment. The Quebec Court of Appeal allowed the appeal.
Michel Miron v. Syndicat des travailleuses et des travailleurs du Comité de gestion de la taxe scolaire de l’île de Montréal
Labour law – Right to fair representation – Dismissal
Mr. Miron was employed by the Comité de gestion de la taxe scolaire de l’île de Montréal (“committee”) until June 18, 2010, when he was dismissed. The union representing employees of the committee filed a grievance that was referred to arbitration. The first day of the hearing was held before arbitrator Jean‑Marie Gagné. The debate was limited to the legality of the committee’s surveillance of Mr. Miron while he was absent as a result of a work accident. On September 6, 2011, the arbitrator made an award allowing the production of the surveillance. In November 2011, a union advisor contacted Mr. Miron to explain the implications of the award and suggest that an attempt be made to settle. Mr. Miron did not agree, but the union nonetheless decided that the status of the case militated in favour of discontinuing Mr. Miron’s grievance in the absence of a settlement. The union conveyed its decision to Mr. Miron on January 17, 2012, thus ending the grievance proceedings. On February 10, 2012, Mr. Miron filed a complaint with the Commission des relations du travail under s. 47.2 of the Labour Code. The complaint was dismissed at the intake stage through a decision dated May 1, 2012. Mr. Miron applied for review of that decision. The Quebec Superior Court dismissed the motion to institute proceedings for damages and allowed the defendant’s motion for declinatory exception and dismiss. The Quebec Court of Appeal dismissed the appeal.
Meredith Johnson v. Her Majesty the Queen in Right of Ontario, as represented by the Minister of Finance
Judgments and orders – Reasons – Costs
Ms. Johnson was injured in a motor vehicle accident in August 1999. She obtained a default tort judgment against the driver of the vehicle in September, 2006 and also applied for payment out of the Motor Vehicle Accident Claims Fund. Her claim was refused by the Minister administering the Fund. Her application for payment out of the Fund was dismissed by Echlin J. in May, 2008 with costs “payable…to the Queen in Right of Ontario…within 30 days from the February 2009 trial directly from the proceeds, if any, received by Meredith Johnson from Axa Insurance (Canada).” The claim settled prior to trial and Ms. Johnson received a settlement award from the insurer. The Minister brought a motion to give effect to the costs order of Echlin J. The Ontario Superior Court of Justice dismissed the Applicant’s claim with costs payable to the respondent from proceeds received by applicant from insurer. The Court of Appeal for Ontario dismissed the Applicant’s application for leave to appeal with all-inclusive costs of $21,000.
Toronto Police Services Board v. Sherry Good
Charter – Civil Procedure – Class actions
The respondent, Sherry Good, was among the individuals detained at specially constructed Detention Centres during the G20 summit held in Toronto in June, 2010. Ms. Good commenced a proposed class action against the applicant, Toronto Police Services Board, and three other defendants, asserting multiple claims, including a breach of her rights pursuant to the Charter of Rights and Freedoms and that of other detainees who would be included in the class. The motion judge dismissed Ms. Good’s motion for certification. Then, Ms. Good narrowed her proposed class proceeding before appealing to the Divisional Court. The Divisional Court allowed the appeal and certified the narrowed claim as two separate class proceedings. It also awarded costs. The Court of Appeal dismissed the applicant’s appeal, granted leave to Ms. Good to cross-appeal the costs awarded by the Divisional Court, allowed the cross-appeal and awarded all-inclusive costs on the certification motion to Ms. Good.
Mohamed Benkhaldoun v. Manulife Financial
Insurance – Right to equality – Time
On May 5, 2011, the applicant had to take time off work for reasons of mental health. Two weeks later, he resigned because of the severity of his medical condition. In June 2013, he took the administrative steps required to obtain short‑term disability benefits and subsequently long‑term benefits from the respondent. The respondent denied the claim for long‑term benefits on the ground that the time limits in the insurance policy had expired. The applicant then brought legal proceedings in the Court of Québec, which were dismissed on a motion to dismiss made by the respondent under art. 165(4) C.C.P. alleging that the applicant’s right to long‑term disability benefits had been forfeited under art. 2435 C.C.Q.
The Court of Québec allowed the motion to dismiss and the Court of Appeal dismissed the appeal
Paul Abi-Mansour v. Deputy Minister of Foreign Affairs and International Trade Canada
Public Service – Complaints
Mr. Abi-Mansour, applicant, applied for an information technology position with the Department of Foreign Affairs and International Trade. The job opportunity advertisement required applicants to include a cover letter demonstrating how they met the education and experience requirements for the job, and indicated that resumes could be used as secondary sources to validate the information provided in the cover letter. The advertisement also specified that a failure to provide the required information in the proper form would result in the rejection of the application. In his job application, Mr. Abi-Mansour did not mention his education in his cover letter and he did not explain that his degree in applied mathematics included an option in computer science. As a result, he was screened out. Mr. Abi-Mansour made several complaints to the Public Service Staffing Tribunal (now called the Public Service Labour Relations and Employment Board), alleging abuse of authority by the Department. Specifically, he argued that the Department discriminated against him in the application process, failed to apply organizational requirements, and appointed candidates who did not meet the education requirements for the position. The Tribunal dismissed the complaints. The Federal Court dismissed Mr. Abi-Mansour’s application for judicial review, and the Federal Court of Appeal dismissed his appeal.
ContainerWest Manufacturing Ltd. v. President of the Canada Border Services Agency
Taxation – Customs and excise – Legislation
ContainerWest Manufacturing Ltd. purchased steel shipping containers from a vendor in China and shipped them to Canada. It did not obtain shipping documents for the containers. It claimed entitlement to General Preferential Tariff treatment under the Customs Tariff, S.C. 1997, c. 36, and the General Preferential Tariff and Least Developed Country Tariff Rules of Origin Regulations, S.O.R./2013-165. Canada Border Services Agency determined that the containers were not entitled to General Preferential Tariff treatment. ContainerWest requested a re-determination. Canada Border Services Agency affirmed its decision. The Canadian International Trade Tribunal dismissed an appeal, holding that entitlement to General Preferential Tariff treatment is conditional on direct shipment on a through bill of lading and ContainerWest did not obtain a through bill of lading. ContainerWest appealed to the Federal Court of Appeal. The Federal Court of Appeal applied a reasonableness standard of review and dismissed the appeal.
Wael Maged Badawy v. Zeinab Hassanein, Fatima Alashmawi also known as Fatima Rady, Safia Rady, Mohammed Hamdy and Ghada Nafie
Judgments and orders – Interlocutory orders – Adjournment
The applicant’s three applications were adjourned by the chambers judge on January 10, 2014. One aspect of the order directed counsel for at least one of the respondents to indicate to the applicant which respondents he represented. Another aspect of the order directed the parties to provide the case management judge with a letter summarizing various actions, claims, appeals and applications currently before the court and to serve those letters on the party opposite. The applicant appealed the order and sought rescission of the respondents’ letter. The Court of Queen’s Bench of Alberta adjourned the applicant’s three applications. The Court of Appeal of Alberta dismissed the appeal.
Wael Maged Badawy v. Law Society of Alberta, Alberta Lawyers Insurance Association, Waldemar A. Igras, Waldemar A. Igras Professional Corporation
Civil procedure – Case management
Mr. Badawy is a plaintiff and a defendant by counterclaim in an action he launched in the Federal Court. Mr. Badawy sought leave to file a third party claim against the Alberta Law Society and the Alberta Law Insurance Association. He also requested leave to file an affidavit of documents and to have a summary trial procedure set. The Federal Court dismissed the Applicant’s motion. The Federal Court of Appeal dismissed the Applicant’s appeal.
Da’naxda’xw/Awaetlala First Nation, Kleana Power Corporation v. Minister of Energy, Mines and Natural Gas, Her Majesty the Queen in right of the Province of British Columbia, British Columbia Hydro and Power Authority
Aboriginal law — Honour of the Crown
The applicants sought to develop a hydro-electric power project within the First Nation’s claimed traditional territory. The project, however, could not proceed without the Province altering the boundaries of an environmentally protected area. In 2008, the provincial Energy Minister made a commitment to the applicant First Nation that he would direct the relevant public utility to negotiate an agreement with the applicant power company once the boundaries were adjusted, if the boundary adjustment occurred after the deadline for submitting bids to the public utility during a call for project proposals that same year. When the boundary was eventually amended in 2012, the project was no longer viable given the price for electricity the public utility was willing to pay at that point. The First Nation brought an application for judicial review, claiming that the Minister’s commitment was broader than that stated by the Crown, and required the Crown to not only direct the public utility to negotiate with the power company, but to do so on terms and under a price structure comparable to other similar projects that had been approved in 2008.
A judge of the B.C. Supreme Court dismissed the application for judicial review, finding that the Minister’s commitment in 2008 was more limited in scope in contrast to what the applicants alleged. Nevertheless, the judge issued declarations to the effect that the Crown had a legal duty to consult with the First Nation on the boundary adjustment, and that it had failed to do so. The B.C. Court of Appeal unanimously dismissed the applicants’ appeal and upheld the chambers judge’s characterization of the scope of the commitment. It also allowed the Crown’s cross-appeal and set aside the declarations, and it remitted the matter of a remedy back to the chambers judge
Steven Ward Leason v. Alyssa-Rea Doranne McAlpine
Family law – Custody – Mobility
The Respondent, McAlpine applied to relocate with her child from Calgary to Winnipeg. She submitted that her childcare obligations rendered her unable to continue in her current employment. She sought to move to Winnipeg where family support would assist with childcare. The Applicant, Leason is the father of the child and he opposed the relocation and sought transfer of the child’s primary residence. The trial judge found that the child’s best interests were consistent with remaining in Calgary. The trial judge directed that primary care would remain with the mother until the move occurred, following which, primary care would transfer to the father. The mother’s appeal was allowed.
Hwlitsum First Nation, as represented by its Chief and Council Chief Raymond Clayton Wilson, Councilors Lindsay Wilson, Janice Wilson, Jim Hornbrook and Danny Wilson on their own behalf and on behalf of the members of the Hwlitsum First Nation v. Attorney General of Canada, Musqueam First Nation, Tsawwassen First Nation, Cowichan Tribes, Halalt First Nation, Chemainus First Nation and Penelakut First Nation
Charter of Rights – Right to equality – Discrimination
The applicants sought an interim injunction pending the resolution of their application for judicial review of a decision of the Department of Fisheries and Oceans (“DFO”), and an order allowing them to engage in their coastal fishery pursuant to their asserted aboriginal right to fish. They sought to enjoin DFO from interfering with that right and from imposing any conditions on it “at all times and seasons of the year within their traditional territory” other than for bona fide conservation purposes. The Federal Court dismissed the Applicants’ motion for interim injunction. The Federal Court of Appeal dismissed the Applicants’ appeal.