Marchand v. Chatham Hospital Soc., (2000) 138 O.A.C. 201 (CA)

• Judge: Laskin, Goudge and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 27, 2000
• Jurisdiction: Ontario
• Citations: (2000), 138 O.A.C. 201 (CA);2000 CanLII 16946 (NS CA);2000 CanLII 16946 (ON CA);51 OR (3d) 97;[2000] CarswellOnt 4362;[2000] OJ No 4428 (QL);101 ACWS (3d) 634;138 OAC 201;43 CPC (5th) 65

Marchand v. Chatham Hospital Soc. (2000), 138 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. NO.073

Joel Marchand, a minor by his litigation guardian Richard Allen Marchand, the said Richard Allen Marchand, and Barbra Marchand (appellants) v. The Public General Hospital Society of Chatham (also known as the Public General Hospital), A. Olson, P. Colebrook, M. Want and G. Asher (respondents)

(C25915)

Indexed As: Marchand v. Public General Hospital Society of Chatham et al.

Ontario Court of Appeal

Laskin, Goudge and Sharpe, JJ.A.

November 27, 2000.

Summary:

A pregnant mother was 16 days beyond her due date and her obstetrician arranged for her labour to be induced in hospital. This was done and the baby was delivered by emergency caesarean section performed by the obstetrician. The baby was born pro­foundly disabled. He suffered asphyxia as a fetus resulting in the cells in the cortex of his brain being destroyed. He therefore could not walk or talk and would be entirely de­pendent on others for his care throughout his life. He and his parents (the plaintiffs) sued the obstetrician, the hospital and three nurses (the defendants), claiming that their negli­gence caused the baby's condition.

The Ontario Court (General Division) dismissed the action. The plaintiffs appealed, claiming firstly that the trial judge erred in declining to find that plaintiffs were negli­gent in not properly monitoring the mother's pregnancy and in not delivering the baby earlier. The plaintiffs also argued that they did not receive a fair trial because of erro­neous and one-sided evidentiary rulings made by the trial judge and that the trial judge's conduct raised a reasonable ap­prehension of bias towards them (i.e., that the trial judge failed to restrain or control the unprofessional conduct of defence coun­sel throughout the entire trial).

The Ontario Court of Appeal dismissed the appeal without costs. The court held that there was ample evidence before the trial judge to support the finding that there was no negligence on the part of the defendants. Further the plaintiffs received a fair trial and the trial judge's conduct did not give rise to a reasonable apprehension of bias.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - A baby was born profoundly disabled following a caesarean section - The baby and his parents (the plaintiffs) sued the obstetrician, the hos­pital and three nurses (the defendants), claiming that their negligence caused the baby's condition - At trial, the action was dismissed - The plaintiffs appealed, argu­ing that they did not receive a fair trial because of cumulative erroneous and one-sided evidentiary rulings by the trial judge - The Ontario Court of Appeal dismissed the appeal - The court reviewed each of the impugned rulings and held that the plaintiffs' complaints lacked substance - See paragraphs 28 to 128.

Courts - Topic 685

Judges - Disqualification - Bias - General - The Ontario Court of Appeal reviewed the principles applicable to a claim of judicial bias - See paragraph 131.

Courts - Topic 691

Judges - Disqualification - Bias - Reason­able apprehension of bias - A baby was born profoundly disabled following a caesarean section - The baby and his par­ents (the plaintiffs) sued the obstetrician, the hospital and three nurses (the defen­dants), claiming that their negligence caused the baby's condition - At trial, the action was dismissed - The plaintiffs ap­pealed, arguing that the trial judge's con­duct of the trial gave rise to a reasonable apprehension of bias - In particular, the plaintiffs argued that the trial judge refused to restrain defence counsel's repeated attacks on the integrity and competence of the plaintiffs' counsel - The Ontario Court of Appeal stated that although it deplored the conduct of defence counsel, it was not persuaded that the trial judge's conduct supported a finding of bias - See para­graphs 129 to 151.

Evidence - Topic 4702

Witnesses - Examination - Cross-examina­tion - Adverse party - A baby was born profoundly disabled - The baby and his parents (the plaintiffs) sued the obstetri­cian, the hospital and three nurses (the defendants), alleging negligence - At trial counsel for the defendant nurses called another nurse as an expert witness - The plaintiffs objected to the obstetrician's counsel cross-examining witnesses called by counsel for the other defendants on the ground that there was a similarity of in­terest between the defendant nurses, the hospital, and the obstetrician - The trial judge permitted the cross-examination concluding that because the obstetrician was responsible for the conduct of the nurses there was an adversity of interest - The plaintiffs appealed - The Ontario Court of Appeal affirmed the trial judge's ruling - See paragraphs 111 to 117.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - During a medical malpractice trial, two home care experts called by the plaintiffs sought to rely upon videotapes as the foundation for their opinions rather than on the medical reports that served as the basis for the home care experts' reports - The trial judge charac­terized the matter as an attempt by the plaintiffs to rely upon a different set of facts from the facts that served as a basis for the experts' reports - The judge ruled therefore that the home care experts' opin­ions lacked probative value unless the plaintiffs proved the facts on which the experts based the opinions (i.e., the foun­dational facts ruling) - The plaintiffs ap­pealed the ruling - The Ontario Court of Appeal held that the trial judge did not err in his foundational facts ruling - See para­graphs 54 to 69.

Evidence - Topic 7006

Opinion evidence - Expert evidence - Examination - A baby was born profound­ly disabled following a caesarean section - The baby and his parents (the plaintiffs) sued the obstetrician, the hospital and three nurses (the defendants), alleging negligence - At trial, the action was dismissed - The plaintiffs appealed, arguing that the trial judge erred in ruling that plaintiff's coun­sel could not pursue a certain line of ques­tioning in the examination-in-chief of the plaintiffs' expert witness because the report filed by the witness made no mention of the matter to which the questioning related (i.e., the trial judge limited expert evidence to the substance of the expert's report) - The Ontario Court of Appeal held that the trial judge made no error in his ruling - See paragraphs 30 to 40.

Evidence - Topic 7006

Opinion evidence - Expert evidence - Examination - Civil Procedure Rule 53.03 provided that a party intending to call an expert witness had to serve on all other parties prior to trial, a report, signed by the expert setting out, inter alia, the substance of his or her proposed testimony - The Ontario Court of Appeal stated that the "'substance' requirement of rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accord­ingly, an expert report cannot merely state a conclusion. The report must set out the expert's opinion, and the basis for that opinion. Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are 'latent in' or 'touched on' by the report. An expert may not testify about matters that open up a new field not mentioned in the report ..." - See paragraph 38.

Evidence - Topic 7006

Opinion evidence - Expert evidence - Examination - Civil Procedure Rule 53.03 provided that a party intending to call an expert witness had to serve on all other parties prior to trial, a report signed by the expert, setting out, inter alia, the substance of his or her proposed testimony - The Ontario Court of Appeal stated that "... the trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evi­dence on a point that would not have been anticipated from a reading of an expert's report." - See paragraph 38.

Evidence - Topic 7113

Opinion evidence - Nonexpert evidence - Prohibited matters - During a medical malpractice trial involving a disabled baby, plaintiffs' counsel sought to cross-examine one of the defendant nurses as to her opin­ion about the conduct of the two other defendant nurses - The trial judge ruled that the plaintiffs' counsel was not entitled to ask the nurse defendant her opinion concerning the conduct of other defendants - He therefore restricted the cross-examina­tion to events on the date when the nurse administered tests to the baby's mother - The plaintiffs appealed, arguing that the trial judge erred in restricting the cross-examination - The Ontario Court of Appeal held that the questioning was properly disallowed - The nurse was not qualified as an expert and therefore was to be re­garded as a lay witness, who generally may not testify as to their opinion - Here the impugned line of questioning went beyond the nurse's personal involvement in the case - See paragraphs 91 to 97.

Practice - Topic 4500

Discovery - Use of examination in court - Reading of discovery evidence into the record - On examination for discovery in a medical malpractice suit involving a dis­abled baby, a defendant nurse answered questions regarding the position of the mother's cervix - The questions and answers were read in as part of the plain­tiffs' case - During cross-examination, the plaintiffs' counsel questioned the nurse, but the questioning was disallowed on the basis that counsel was attempting to con­tradict the answers he had read in from the nurse's discovery - The plaintiffs appealed the ruling - The Ontario Court of Appeal held that the trial judge erred in ruling that the plaintiffs' counsel could not attempt to contradict the nurse's discovery answers by cross-examining her on those answers - However the court held that no prejudice flowed from the erroneous ruling - See paragraphs 87 to 106.

Practice - Topic 4500

Discovery - Use of examination in court - Reading of discovery evidence into the record - Civil Procedure Rule 31.11(4) provided that "a party who reads into evidence as part of the party's own case evidence given on an examination for discovery of an adverse party ... may rebut that evidence by introducing any other admissible evidence" - The Ontario Court of Appeal stated that "the wording of rule 31.11(4) does not limit a party's right to rebut discovery answers. Rule 31.11(4) states that a party 'may rebut that evidence by introducing any other admissible evi­dence.' The words 'that evidence' refer to the discovery answers read into evidence. In our view, the words 'any other admissi­ble evidence' must refer to any evidence other than the discovery answers read into evidence. We can see no reason in prin­ciple to prevent a party from attempting to contradict an adverse party's discovery answers by cross-examining the adverse party." - See paragraph 104.

Practice - Topic 4506

Discovery - Use of examination in court - Original and amended discovery answers - On examination for discovery in a medical malpractice suit involving a disabled baby, the defendant obstetrician admitted that he noted "oligohydramnios" (i.e., a deficiency in the amount of amniotic fluid) during the baby's mother's caesarean section - After the trial commenced defendants' counsel sent the plaintiffs' counsel a letter wherein the obstetrician withdrew the admission of oligohydramnios - On cross-examination the obstetrician explained his discovery answer and the correction - The plaintiffs appealed, arguing that the trial judge erred in allowing the correction - The Ontario Court of Appeal dismissed the appeal - The court noted that the discovery answer was not a formal admission and as such was open to explanation during testimony - Rule 31.09 provided that there was an ongoing duty to correct discovery answers - The trial judge was entitled to decide which version of events he accepted - See paragraphs 70 to 86.

Practice - Topic 5010

Conduct of trial - Power of judge to inter­vene - A baby was born profoundly dis­abled following a caesarean section - The baby and his parents (the plaintiffs) sued the obstetrician, the hospital and three nurses (the defendants), claiming that their negligence caused the baby's condition - At trial, the action was dismissed - The plaintiffs appealed, arguing that the trial judge prevented the plaintiffs from fairly presenting their case by his one-sided interventions - The Ontario Court of Ap­peal rejected the plaintiffs' argument - The court noted that the trial judge intervened when needed in order to control what was a difficult trial and to understand the evi­dence - See paragraphs 153 to 162.

Practice - Topic 5067

Conduct of trial - Adjournments - Cir­cumstances when request for adjournment refused - During a medical malpractice trial, the trial judge ruled that plaintiff's counsel could not pursue a certain line of questioning in the examination-in-chief of the plaintiffs' expert witness because the report filed by the witness made no men­tion of the matter to which the questioning related - The plaintiffs argued that in the light of this ruling they required an ad­journment for a "couple of weeks" to obtain supplementary reports from other witnesses - The trial judge refused the adjournment - The plaintiffs appealed - The Ontario Court of Appeal held that the trial judge did not err and his refusal of the adjournment did not cause any injustice - The judge made it clear that his ruling applied only to the witness in question - The judge emphasized the need to continue with the trial and that the adjournment would prolong proceedings - See para­graphs 41 to 44.

Cases Noticed:

Thorogood v. Bowden (1978), 21 O.R.(2d) 385 (C.A.), refd to. [para. 35].

Auto Workers' Village (St. Catherines) Ltd. v. Blaney, McMurtry, Stapells, Friedman (1997), 43 O.T.C. 65; 14 C.P.C.(4th) 152 (Gen. Div.), refd to. [para. 36].

Iler v. Beaudet, [1971] 3 O.R. 644 (Co. Ct.), refd to. [para. 36].

McEachrane v. Children's Aid Society Essex (County) (1986), 10 C.P.C.(2d) 265 (Ont. H.C.), refd to. [para. 36].

Ollet v. Bristol Aerojet Ltd., [1979] 3 All E.R. 544 (Q.B.), refd to. [para. 37].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97, refd to. [para. 60].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; 68 C.C.C.(2d) 394, refd to. [para. 60].

R. v. Scardino (1991), 46 O.A.C. 209; 6 C.R.(4th) 146 (C.A.), refd to. [para. 63].

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 29 O.R.(3d) 785 (C.A.), refd to. [para. 63].

Machado v. Pratt & Whitney Canada Inc. (1993), 17 C.P.C.(3d) 340 (Ont. Master), refd to. [para. 80].

Capital Distributing Co. v. Blakey et al. (1997), 37 O.T.C. 371; 33 O.R.(3d) 58 (Gen. Div), refd to. [para. 80].

Burke v. Gauthier (1987), 24 C.P.C.(2d) 281 (Ont. H.C.), refd to. [para. 83].

Bachalo v. Robson (1995), 101 Man.R.(2d) 316; 35 C.P.C.(3d) 230 (Q.B.), dist. [para. 83].

Wade v. Sisters of Saint Joseph of the Diocese of London (1976), 2 C.P.C. 37 (Ont. H.C.), refd to. [para. 93].

Christoyiannis v. Benoit et al. (1998), 84 O.T.C. 76 (Gen. Div.), refd to. [para. 93].

R. v. Graat (1982), 45 N.R. 451; 2 C.C.C.(3d) 365 (S.C.C.), refd to. [para. 95].

Collins v. Belgian Dry Cleaners, Dyers and Furners Ltd. (1951), 4 W.W.R.(N.S.) 241 (Sask. C.A.), refd to. [para. 106].

Draper v. Jacklyn, [1970] S.C.R. 92, refd to. [para. 109].

Shipman v. Antoniadis (1975), 8 O.R.(2d) 449 (C.A.), refd to. [para. 109].

Qunatrill et al. v. Alcan-Colony Contract­ing Co. Ltd. et al. (1978), 18 O.R.(2d) 333 (C.A.), refd to. [para. 123].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 131].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115 (S.C.C.), refd to. [para. 131].

Majcenic v. Natale, [1968] 1 O.R. 189 (C.A.), refd to. [para. 154].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 31.09 [para. 79]; rule 31.11(1), rule 31.11(4) [para. 101]; rule 51.05 [para. 78]; rule 53.03(1), rule 53.03(2) [para. 34]; rule 53.08 [para. 81].

Authors and Works Noticed:

Holmested and Gale, Ontario Judicature Act and Rules of Practice (1983), p. 1767 [para. 102].

Holmested and Watson, Ontario Civil Procedure (1984), ch. 31, § 25 [para. 80]; ch. 31, §26 [para. 78].

Sopinka, Lederman and Bryant, Law of Evidence in Canada (3rd Ed. 1999), pp. 940 [para, 113]; 1051 to 1053 [para. 77].

Counsel:

Barry A. Percival, Q.C., Martin Wunder, Q.C. and Ronald D. Davis, for the appel­lants;

Joshua Liswood and Kathryn M. Frelick, for the respondents, The Public General Hospital Society of Chatham, A. Olson, P. Colebrook and M. Want;

W. Neils F. Ortved and J. Thomas Curry, for the respondent, G. Asher.

This appeal was heard before Laskin, Goudge and Sharpe, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on November 27, 2000.