Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470

• Judge: Feldman, Sharpe and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 02, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 470;(2010), 273 O.A.C. 397 (CA)

Berthiaume-Palmer v. Borgundvaag (2010), 273 O.A.C. 397 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.105

Darcy Berthiaume-Palmer, personally and in her capacity as Estate Trustee of The Estate of Dave Ignatius Palmer, and Maxwell Palmer and Mia Palmer, by their litigation guardian Darcy Berthiaume-Palmer, Cheryl Palmer and Edith Martin (plaintiffs/appellants) v. Dr. Bjug Borgundvaag (defendant/respondent)

(C49087; 2010 ONCA 470)

Indexed As: Berthiaume-Palmer v. Borgundvaag

Ontario Court of Appeal

Feldman, Sharpe and Armstrong, JJ.A.

June 30, 2010.

Summary:

Palmer died of cardiac arrest secondary to a bowel obstruction. His estate and family members (plaintiffs) sued an emergency room physician, claiming that he was negligent in failing to diagnose a bowel obstruction and in discharging him from the hospital the day before he died. A jury returned a verdict in favour of the physician, finding that there was no negligence on his part. The plaintiffs appealed, arguing that the trial judge erred by failing to provide an adequate jury instruction (i.e., he failed to review the facts).

The Ontario Court of Appeal dismissed the appeal.

Practice - Topic 5190.2

Juries and jury trials - Charge to jury - Review of the facts - The plaintiffs sued the defendant for damages for medical malpractice - A jury returned a verdict in favour of the physician - The plaintiffs appealed, arguing that the trial judge failed to provide the jury with an adequate instruction (i.e., he failed to review the facts) - The Ontario Court of Appeal dismissed the appeal - The court knew of no authority laying down the rule that, in a civil jury trial, the judge was inevitably required to review the facts - Nor was any authority presented suggesting that the judge's failure to review the facts necessarily mandated a new trial - The court took a functional approach as the applicable analytical framework for the assessment of the adequacy of the jury instruction - Applying that approach, when reading the record as a whole, the court was satisfied that the jury was provided with an adequate explanation of the factual issues it was to resolve, the evidence that related to those issues, the proper law to be applied, and the positions of the parties - The charge was not materially deficient.

Cases Noticed:

R. v. Pomeroy (M.) (2008), 249 O.A.C. 287; 91 O.R.(3d) 261; 2008 ONCA 521, refd to. [para. 15].

1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127; 267 D.L.R.(4th) 690 (C.A.), refd to. [para. 17].

Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Co. - see 1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co.

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 17].

Brochu v. Pond et al. (2002), 166 O.A.C. 353; 62 O.R.(3d) 722 (C.A.), refd to. [para. 19].

Caza v. Casselman et al. (2003), 172 O.A.C. 388 (C.A.), refd to. [para. 20].

Counsel:

Ronald D. Manes and Duncan Embury, for the appellants;

Michael E. Royce and Naomi D. Loewith, for the respondent.

This appeal was heard on February 2, 2010, before Feldman, Sharpe and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on June 30, 2010.