St-Jean v. Mercier, 2002 SCC 15

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 21, 2002
• Jurisdiction: Canada (Federal)
• Citations: 2002 SCC 15;(2002), 282 N.R. 310 (SCC);[2002] 1 SCR 491;209 DLR (4th) 513;282 NR 310;[2002] CarswellQue 142;AZ-50113963;JE 2002-434;[2002] SCJ No 17 (QL)

St-Jean v. Mercier (2002), 282 N.R. 310 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. FE.013

Frédéric St-Jean (appelant) c. Denis Mercier (intimé)

(27515; 2002 SCC 15)

Indexed As: St-Jean v. Mercier

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

February 21, 2002.

Summary:

On August 11, 1986, the plaintiff was hit by a motor vehicle, suffered multiple injuries and was taken to hospital. The emergency room doctor found that the plaintiff had open fractures in both legs, abrasions on the abdomen and was bleeding from the head. The doctor, who had asked for x-rays of the lungs, abdomen, thorax and dorsolumbar column, also suspected a fracture of the spine at the T7 vertebra. An orthopaedic surgeon, the defendant in this case, then examined the plaintiff. The defendant decided that the fracture did not impede his ability to operate on the plaintiff's legs. The defendant performed two operations. The plaintiff complained of abdominal and back pains and of being hot and thirsty. On the evening of the second operation, a nurse entered a note that the plaintiff could feel physical contact to his legs but that he was unable to move his legs and toes. This observation was repeated over the next few days. The defendant attributed the plaintiff's condition to sciatica on the right side consequent to the surgery. A third operation was carried out to modify a traction device attached to the leg. The plaintiff was then able to feel his toes when touched. The defendant decided that there was an improvement in the sciatica. On September 12, the defendant removed the cast on the plaintiff's right leg and witnessed spasms, a symptom of spastic paraplegia. A neurologist confirmed a condition of spastic paraplegia arising from a medullary contusion. An x-ray of the back and a myelogram done on September 19 revealed a fracture at the T8 vertebra with a subluxation (partial dislocation) of nine millimetres in relation to T9. A more detailed review of the x-rays taken on August 11 revealed that the fracture at T8 was visible but that the subluxation was only three millimetres. The plaintiff was diagnosed with paraparesis, a type of paralysis where the motor activity of the lower limbs was undermined but sensitivity was still retained. The plaintiff sued the defendant and the emergency-room doctor.

The Quebec Superior Court dismissed the action, finding no fault in the defendant and the emergency-room doctor. The court also found that the plaintiff had not established a causal link between the alleged fault and the damages suffered. The plaintiff appealed.

The Quebec Court of Appeal dismissed the appeal. Although the court found fault in the defendant, the court found, on the question of causal link, that the plaintiff's medullary injury was complete on the evening of the accident. The court concluded that, notwithstanding the defendant's faults, the accident was the legal cause of the injury suffered by the plaintiff resulting in paraparesis. The plaintiff appealed.

The Supreme Court of Canada dismissed the appeal.

Evidence - Topic 109

Degree, standard or burden of proof - Standard or degree of proof - Causality - [See second Practice - Topic 8800 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See second Practice - Topic 8800 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See Practice - Topic 8800.1 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - The Supreme Court of Canada held that it was established law that an appellate court such as a provincial court of appeal should not interfere with the trial judge's findings of fact, absent a palpable and overriding error in the understanding of the evidence - The court added that the principle of non-intervention on questions of fact was also applicable to a second appellate court such as the Supreme Court vis-à-vis the first appellate court - The court continued by stating that where the trial and first appellate decisions were contradictory, the court could make its own assessments on questions of fact such as whether something had been established on a balance of probabilities - In contrast, where there were concurrent findings of fact at the lower courts, the court would be hesitant to intervene and disturb findings of fact - See paragraphs 36 to 47.

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - On August 11, 1986, the plaintiff suffered an open fracture in both legs in a motor vehicle accident - A fracture of the spine at the T7 vertebra was also suspected - An orthopaedic surgeon operated on the legs - Several weeks later, the plaintiff was diagnosed with paraparesis stemming from a medullary (spinal) contusion - Further x-rays and tests had revealed a fracture at the T8 vertebra with a subluxation (partial dislocation) of nine millimetres in relation to T9 - That fracture was at that moment seen on the x-rays taken on August 11 but the subluxation was only three millimetres - The plaintiff sued the orthopaedic surgeon - The trial judge found no fault in the defendant, declined to choose between the two opposing medical theories before him respecting causation, found that the plaintiff had not established causation and dismissed the action - The Quebec Court of Appeal upheld the decision but found that the trial judge's causation analysis was erroneous in that it would unduly favour defendants in all cases where the establishment of the causal link depended on contradictory expert evidence - The Supreme Court of Canada upheld the Court of Appeal's decision and findings where: (1) causation in this case was a question of fact; (2) it was open for the Court of Appeal to be concerned that the trial judge had erred in that his causation neutrality led him to refrain from determining whether causation had been established on a balance of probabilities; and (3) there was no reason for the Supreme Court to question the Court of Appeal's intervention - See paragraphs 51, 55 to 58, 74 to 106.

Practice - Topic 8800.1

Appeals - General principles - Duty of appellate court regarding findings of mixed law and fact by a trial judge - On August 11, 1986, the plaintiff suffered an open fracture in both legs in a motor vehicle accident - A fracture of the spine at the T7 vertebra was also suspected - An orthopaedic surgeon operated on the legs - Several weeks later, the plaintiff was diagnosed with paraparesis stemming from a medullary (spinal) contusion - Further x-rays and tests had revealed a fracture at the T8 vertebra with a subluxation (partial dislocation) of nine millimetres in relation to T9 - That fracture was at that moment seen on the x-rays taken on August 11 but the subluxation was only three millimetres - The plaintiff sued the orthopaedic surgeon - The trial judge found no fault in the defendant for not having diagnosed the neurological deficit and the unstable fracture at the T8 and T9 vertebrae, found that the plaintiff had not established causation and dismissed the action - The Quebec Court of Appeal upheld the decision but disagreed with the trial judge on the question of fault - The trial judge had applied the wrong test to determine fault - He should have asked himself whether the defendant had abided by the rules of art in the treatment of a seriously injured patient who had the potential, if not the probability, of having a back fracture - Applying this test, the Court of Appeal found fault where the defendant had not followed up on the suspected fracture at the T7 vertebra, not done more complete neurological exams, not consulted the nurses' notes alerting to the possibility of a neurological deficit, and not ordered immobilization of the spinal column - The Supreme Court of Canada upheld the Court of Appeal's decision and findings where: (1) findings of fault in the law of delict were questions of mixed law and fact; (2) the applicable review standard was correctness; (3) the Court of Appeal was justifiably concerned that a proper inquiry was not made and the wrong standard of fault was applied; and (4) there was nothing justifying the Supreme Court to intervene - See paragraphs 48 to 54, 59 to 73.

Practice - Topic 8822

Appeals - General principles - Duty of second appeal court - [See both Practice - Topic 8800 and Practice - Topic 8800.1 ].

Quebec Procedure - Topic 7952

Appeal - General - Duty of appellate court re findings of fact by trial judge - [See both Practice - Topic 8800 ].

Quebec Procedure - Topic 7952.1

Appeal - General - Duty of appellate court re findings of mixed law and fact by trial judge - [See Practice - Topic 8800.1 ].

Quebec Procedure - Topic 9260

Evidence - General - Standard of proof - Causation - [See second Practice - Topic 8800 ].

Quebec Responsibility - Topic 1304

Fault - proof - General - Reversal of onus - [See Quebec Responsibility - Topic 1325 ].

Quebec Responsibility - Topic 1323

Fault - Proof - Presumptions - Doctor's fault - [See Quebec Responsibility - Topic 1325 ].

Quebec Responsibility - Topic 1325

Fault - Proof - Presumptions - Causation - On August 11, 1986, the plaintiff suffered an open fracture in both legs in a motor vehicle accident - A fracture of the spine at the T7 vertebra was also suspected - An orthopaedic surgeon operated on the legs - Several weeks later, the plaintiff was diagnosed with paraparesis stemming from a medullary (spinal) contusion - Further x-rays and tests had revealed a fracture at the T8 vertebra with a subluxation (partial dislocation) of nine millimetres in relation to T9 - That fracture was at that moment seen on the x-rays taken on August 11 but the subluxation was only three millimetres - The plaintiff sued the orthopaedic surgeon - The plaintiff argued for a presumption of causation and a reversal of the burden of proof - He posited that since the defendant created a risk and that the harm subsequently occurred within the ambit of the risk created, there should be either a reversal of the burden of proof or a presumption of causation - The plaintiff also argued that he was deprived of some important means of proof because more tests were not done, and therefore there should be a reversal of the burden of proof onto the defendant to show that his fault did not cause the damage - The Supreme Court of Canada, in affirming the dismissal of the action, rejected the argument - See paragraphs 107 to 120.

Quebec Responsibility - Topic 3802

Particular examples - Doctors - Failure to observe accepted standards of practice - [See Practice - Topic 8800.1 ].

Cases Noticed:

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 33].

D.P. v. C.S., [1993] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1, refd to. [para. 34].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 34].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 34].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 34].

Lapointe c. Hôpital Le Gardeur - see Lapointe c. Chevrette.

Québec (Curateur public) v. Syndicat national des employés de l'Hôpital St-Ferdinand et autres, [1996] 3 S.C.R. 211; 202 N.R. 321, refd to. [para. 36].

Stein Estate v. Ship "Kathy K", [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 36].

Dorval v. Bouvier, [1968] S.C.R. 288, consd. [para. 36].

Demers v. Montreal Steam Laundry Co. (1897), 27 S.C.R. 537, consd. [para. 37].

Pelletier v. Shykofsky, [1957] S.C.R. 635, refd to. [para. 37].

Scotsburn Co-operative Services Limited v. Goodwin (W.T.) Limited, [1985] 1 S.C.R. 54; 57 N.R. 81; 67 N.S.R.(2d) 163; 155 A.P.R. 163, refd to. [para. 37].

Beaudoin-Daigneault v. Richard et al., [1984] 1 S.C.R. 2; 51 N.R. 288, refd to. [para. 40].

Cie de volailles Maxi Ltée v. Empire Cold Storage Co., [1995] Q.J. No. 731 (C.A.), refd to. [para. 41].

Cooke v. Suite, [1995] R.J.Q. 2765 (C.A.), refd to. [para. 41].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, consd. [para. 42].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 42].

Ontario (Attorney General) v. Bear Island Foundation et al., [1991] 2 S.C.R. 570; 127 N.R. 147; 46 O.A.C. 396, refd to. [para. 45].

Morin v. Blais, [1977] 1 S.C.R. 570; 10 N.R. 489, refd to. [para. 98].

Hebert v. Lamothe, [1974] S.C.R. 1181; 1 N.R. 219, refd to. [para. 98].

Bonenfant c. O.T.J. de la Rédemption, [1994] R.R.A. 225 (Que. C.A.), refd to. [para. 100].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, consd. [para. 106].

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. 111].

Labelle c. Charette, [1960] B.R. 770 (Que. C.A.), refd to. [para. 118].

Veilleux c. Massignani, [1987] R.R.A. 541; 7 Q.A.C 226 (C.A.), refd to. [para. 118].

Cook v. Lewis, [1951] S.C.R. 830, refd to. [para. 118].

Stéfanik c. Hôpital Hôtel-Dieu de Lévis, [1997] R.J.Q. 1332 (Sup. Ct.), refd to. [para. 119].

Statutes Noticed:

Civil Code of Lower Canada, art. 1053, art. 1238, art. 1242 [para. 18].

Civil Code of Québec, L.Q. 1991, c. 64, art. 1479, art. 2846, art. 2847, art. 2849 [para. 18].

Implementation of the Reform of the Civil Code, Act Respecting the, L.Q. 1992, c. 57, sect. 9, sect. 85 [para. 18].

Authors and Works Noticed:

Baudouin, Jean-Louis, et Deslauriers, Patrice, La responsabilité civile, 5e éd., 1998, pp. 348 [para. 98]; 358 to 359 [para. 111]; 370, 371 [para. 118]; 850 [para. 53].

Baudouin, Jean-Louis, et Renaud, Yvon, Code civil du Québec annoté, t. 2, 3e éd., 2000, pp. 3260 to 3262 [para. 32].

Gibbens, R.D., Appellate Review of Findings of Fact (1992-93), 13 Adv. Q. 445, pp. 445 to 447 [para. 42].

Jutras, Daniel, Expertise scientifique et causalité, dans Congrès annuel du Barreau du Québec (1992), p. 897, note 24 [paras. 110, 112, 114].

Karim, Vincent, Commentaires sur les obligations, vol. 1, 1997, p. 271 [para. 101].

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1984), pp. 10 to 16 [para. 42]; 90 [para. 34].

Mayrand, Albert, L'énigme des fautes simultanées (1958), 18 R. du B. 1, generally [para. 118].

Québec, Ministère de la Justice, Commentaires du ministre de la Justice: Le Code civil du Québec; un mouvement de société, 1993, t. 2, p. 1783 [para. 32].

Royer, Jean-Claude, la preuve civile, 2e éd., 1995, p. 518 [para. 111].

Woods, Thomas S., Overturning Findings of Fact on Appeal: A Justifiably Narrow Jurisdiction (1998), 56 The Advocate 61, pp. 63, 65 to 67 [para. 42].

Counsel:

Frédéric St-Jean and Benoît Mailloux, for the appellant, St-Jean;

Gérald R. Tremblay, Q.C., Louis Terriault and David E. Platts, for the respondent, Mercier.

Solicitors of Record:

Frédéric St-Jean, Ste-Foy, Quebec, for the appellant, St-Jean;

McCarthy, Tétrault, Montreal, Quebec, for the respondent, Mercier.

This appeal was heard on April 18, 2001, by McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court was delivered in both official languages on February 21, 2002, by Gonthier, J.