Beldycki Estate v. Jaipargas et al.,

• Jurisdiction: Ontario
• Judge: Sharpe, Armstrong and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2012 ONCA 537,(2012), 295 O.A.C. 100 (CA)
• Date: 06 February 2012

Beldycki Estate v. Jaipargas (2012), 295 O.A.C. 100 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AU.016

The Estate of Adam Beldycki, by Estate Trustees Mariusz Beldycki and Evelina Beldycki, Zdzislaw Beldycki, Jadwiga Beldycki, Mariusz Beldycki and Evelina Beldycki (plaintiffs/respondents) v. Dr. Charles Jaipargas, Dr. Donald Munnings, Dr. Claire Coire, Dr. Michael King, Dr. William Magnuson and Trillium Health Centre, Mississauga Site (defendants/appellant)

(C53118; 2012 ONCA 537)

Indexed As: Beldycki Estate v. Jaipargas et al.

Ontario Court of Appeal

Sharpe, Armstrong and Watt, JJ.A.

August 10, 2012.

Summary:

The plaintiff sued a radiologist for missing a cancerous lesion in his liver following surgery for colon cancer, delaying treatment.

The Ontario Superior Court, sitting with a jury, found the radiologist negligent and that the negligence caused or contributed to the plaintiff not being disease-free when the case was tried and awarded him substantial damages. The plaintiff died four months after the jury returned its verdict. The radiologist appealed, arguing that that the jury was wrong in finding that his negligence caused the damages claimed, and in failing to reduce the award for future loss of income by taking into account certain contingencies.

The Ontario Court of Appeal dismissed the appeal.

Damages - Topic 1412

Special damages - Loss of wages - Deductions (including income tax and contingencies) - The plaintiff sued a radiologist for missing a cancerous lesion in his liver following surgery for colon cancer, delaying treatment - A jury found the radiologist's negligence caused or contributed to the cancer metastasizing and awarded damages - The radiologist appealed, arguing that the jury failed to take into account future adverse contingencies in its award for future income loss - The Ontario Court of Appeal rejected this ground of appeal - The award was not unreasonable - In any event, the radiologist's argument was flawed - Once it was established on a balance of probabilities that his failure to detect the liver lesion caused the metastasis of the colon cancer, no principle of law entitled him to a discount from the full measure of the plaintiff's damages to reflect the chance that, even given prompt treatment after detection, the colon cancer might well still have metastasized - The court also noted that this issue was not raised at trial - See paragraphs 63 to 85.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - The plaintiff sued a radiologist for missing a cancerous lesion in his liver, delaying treatment - A jury found the radiologist's negligence caused or contributed to the plaintiff not being disease-free at trial and awarded damages - The radiologist appealed, arguing that the jury's finding on causation was unreasonable - The Ontario Court of Appeal disagreed - The jury performed its judicial duty - The jury was entitled to rely on expert evidence favourable to the plaintiff - The jury was properly instructed on causation (incl. "but for" test) - Causation was a finding of fact for the jury to make on all the evidence adduced at trial - Causation need not be determined with scientific precision - Also, the radiologist's trial counsel did not object to the judge's charge on causation - See paragraphs 20 to 51.

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - The plaintiff sued a radiologist for missing a cancerous lesion in his liver, delaying treatment - A jury found the radiologist's negligence caused or contributed to the cancer metastasizing and awarded damages - The radiologist appealed, raising a causation issue and an issue as to the jury's failure to take into account certain adverse contingencies in awarding damages for future income loss - The Ontario Court of Appeal dismissed the appeal - One of the factors considered by the court in rejecting the radiologist's arguments was that neither of these had been raised at trial - See paragraphs 51 and 85.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - [See Medicine - Topic 4241.2 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See Medicine - Topic 4241.2 ].

Cases Noticed:

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 41].

Bovingdon et al. v. Hergott (2008), 233 O.A.C. 84; 88 O.R.(3d) 641 (C.A.), refd to. [para. 41].

C.N.R. v. Miller, [1934] 1 D.L.R. 768 (S.C.C.), refd to. [para. 41].

Fiddler v. Chiavetti et al. (2010), 260 O.A.C. 363; 317 D.L.R.(4th) 385; 2010 ONCA 210, refd to. [para. 42].

Kerr et al. v. Loblaws Inc. (2007), 224 O.A.C. 56; 2007 ONCA 371, refd to. [para. 43].

Brochu v. Pond et al. (2002), 166 O.A.C. 353; 62 O.R.(3d) 722 (C.A.), refd to. [para. 43].

Mizzi v. Hopkins (2003), 171 O.A.C. 161; 64 O.R.(3d) 365 (C.A.), refd to. [para. 43].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 67 O.R.(3d) 737 (C.A.), refd to. [para. 44].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 16, refd to. [para. 44].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 45].

Graham et al. v. Rourke (1990), 40 O.A.C. 301; 75 O.R.(2d) 622 (C.A.), refd to. [para. 75].

Andrews et al. v. Grand and Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452, refd to. [para. 78].

Schrump et al. v. Koot et al. (1977), 18 O.R.(2d) 337, refd to. [para. 79].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 81].

Walker and Walker Brothers Quarries Ltd. v. CFTO Ltd. (1987), 19 O.A.C. 10; 59 O.R.(2d) 104 (C.A.), refd to. [para. 81].

Cabral v. Gupta, [1993] 1 W.W.R. 648; 83 Man.R.(2d) 2; 36 W.A.C. 2; 13 C.C.L.T.(2d) 323; 1992 CarswellMan 145 (C.A.), refd to. [para. 84].

Hotson v. East Berkshire Health Authority, [1987] A.C. 750; 80 N.R. 95 (H.L.), refd to. [para. 84].

Counsel:

Kirk F. Stevens and Jennifer L. Hunter, for the appellant;

Duncan N. Embury and Daniela M. Pacheco, for the respondents.

This appeal was heard on February 6, 2012, before Sharpe, Armstrong and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court, by Watt, J.A., on August 10, 2012.