CANADIAN CASES on the LAW of TORTS Third Series/TroisiÈme SÉrie Recueil De Jurisprudence Canadienne En ResponsabilitÉ Civile VOLUME 91 (Cited 91 C.C.L.T

CANADIAN CASES ON THE LAW OF TORTS Third Series/Troisième série Recueil de jurisprudence canadienne en responsabilité civile VOLUME 91 (Cited 91 C.C.L.T. (3d))

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CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email Tannenbaum v. Lazare 193

[Indexed as: Tannenbaum v. Lazare] Hyman Tannenbaum (Appellant) v. Norman Lazare, Joan Benson and Professional Liability Insurance Fund of the Barreau du Qu´ebec (Respondents) Quebec Court of Appeal Docket: C.A. Montr´eal 500-09-020159-091 2011 QCCA 2324 Duval Hesler C.J.Q., Bich, Fournier JJ.A. Judgment: December 13, 2011 Civil practice and procedure –––– Parties — Vexatious proceedings / Abuse of process –––– Plaintiff’s sister-in-law died and liquidator was appointed to administer and wind up estate — Plaintiff brought action for damages accusing liquidator and attorney of fraudulent, unethical and illegal behaviour with respect to estate — At trial, counsel for defendants stated that, considering vexatious nature of plaintiff’s action, he would bring motion, under art. 54.1 of Code of Civil Procedure, to declare plaintiff’s action improper and ask trial judge to impose sanction on him — Plaintiff brought discontinuance motion, which was refused by trial judge on basis that purpose of discontinuance was to avoid contemplated penalty phase of trial — Plaintiff, who was representing himself, asked for postponement in order to secure advice of counsel and prepare his contestation — Trial judge dismissed plaintiff’s request, granted defendants’ motion and ordered plaintiff to pay them approximately $280,000 — Plaintiff appealed — Appeal allowed — Court was unanimously of view that plaintiff was not afforded due process once he was advised by trial judge that he was facing claim for damages under art. 54.1 of Code — Court did not believe that matter was dealt within manner that was in conformity with art. 54.4 of Code — Therefore, Court quashed judgment a quo and returned file to Superior Court before another judge for continuation of hearing on sole issues pertaining to art. 54.1 of Code. Torts –––– Abuse of process — Elements of tort –––– Plaintiff’s sister-in-law died and liquidator was appointed to administer and wind up estate — Plaintiff brought action for damages accusing liquidator and attorney of fraudulent, unethical and illegal behaviour with respect to estate — At trial, counsel for defendants stated that, considering vexatious nature of plaintiff’s action, he would bring motion, under art. 54.1 of Code of Civil Procedure, to declare plaintiff’s action improper and ask trial judge to impose sanction on him — Plaintiff brought discontinuance motion, which was refused by trial judge on basis that purpose of discontinuance was to avoid contemplated penalty phase of trial — Plaintiff, who was representing himself, asked for postponement in order to secure advice of counsel and prepare his contestation — Trial judge dismissed 194 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

plaintiff’s request, granted defendants’ motion and ordered plaintiff to pay them approximately $280,000 — Plaintiff appealed — Appeal allowed — Court was unanimously of view that plaintiff was not afforded due process once he was advised by trial judge that he was facing claim for damages under art. 54.1 of Code — Court did not believe that matter was dealt within manner that was in conformity with art. 54.4 of Code — Therefore, Court quashed judgment a quo and returned file to Superior Court before another judge for continuation of hearing on sole issues pertaining to art. 54.1 of Code. Procédure civile –––– Parties — Procédures vexatoires / Abus de procé- dure –––– Belle-sœur du demandeur est décédée et un liquidateur a et´´ e nommé pour administrer et liquider la succession — Demandeur a déposé une action en dommages-intérêts accusant le liquidateur et une avocate de conduite frauduleuse, contraire a` l’éthique et illégale relativement a` la succession — Lors du procès, le procureur des défendeurs a déclaré, compte tenu de la nature vex- atoire de l’action du demandeur, qu’il déposerait une requête, en vertu de l’art. 54.1 du Code de procédure civile, pour faire déclarer que l’action du demandeur etait´ abusive et demander que le juge de première instance prononce une sanction contre lui — Demandeur a déposé une requête en désistement, laquelle a et´´ e rejetée par le juge de première instance au motif que le but recherché par le désistement etait´ d’éviter la partie du procès portant sur l’imposition potentielle d’une sanction — Demandeur, qui se représentait lui-même, a demandé un ajournement afin de lui permettre d’obtenir les conseils d’un avocat et de préparer sa contestation — Juge de première instance a rejeté la demande du demandeur, a accueilli la requête des défendeurs et a condamné le demandeur a` leur payer environ 280 000 $ — Demandeur a interjeté appel — Appel accueilli — A` l’unanimité, les juges de la Cour d’appel etaient´ d’avis que le demandeur n’avait pas bénéficié de l’application régulière de la loi a` partir du moment où il a et´´ e informé par le juge de première instance qu’une demande en dommages-intérêts avait et´´ e déposée contre lui en vertu de l’art. 54.1 du Code — Cour ne croyait pas que l’affaire avait et´´ e administrée en conformité avec l’art. 54.4 du Code — Par conséquent, la Cour a annulé le jugement faisant l’objet de l’appel et a renvoyé le dossier a` un autre juge de la Cour supérieure a` la seule fin de poursuivre l’audition sur les questions relatives a` l’art. 54.1 du Code. Délits civils –––– Abus de procédure — El´´ ements de responsabilité délic- tuelle –––– Belle-sœur du demandeur est décédée et un liquidateur a et´´ e nommé pour administrer et liquider la succession — Demandeur a déposé une action en dommages-intérêts accusant le liquidateur et une avocate de conduite frauduleuse, contraire a` l’éthique et illégale relativement a` la succession — Lors du procès, le procureur des défendeurs a déclaré, compte tenu de la nature vex- atoire de l’action du demandeur, qu’il déposerait une requête, en vertu de l’art. 54.1 du Code de procédure civile, pour faire déclarer que l’action du demandeur Tannenbaum v. Lazare Per curiam 195

etait´ abusive et demander que le juge de première instance prononce une sanction contre lui — Demandeur a déposé une requête en désistement, laquelle a et´´ e rejetée par le juge de première instance au motif que le but recherché par le désistement etait´ d’éviter la partie du procès portant sur l’imposition potentielle d’une sanction — Demandeur, qui se représentait lui-même, a demandé un ajournement afin de lui permettre d’obtenir les conseils d’un avocat et de préparer sa contestation — Juge de première instance a rejeté la demande du demandeur, a accueilli la requête des défendeurs et a condamné le demandeur a` leur payer environ 280 000 $ — Demandeur a interjeté appel — Appel accueilli — A` l’unanimité, les juges de la Cour d’appel etaient´ d’avis que le demandeur n’avait pas bénéficié de l’application régulière de la loi a` partir du moment où il a et´´ e informé par le juge de première instance qu’une demande en dommages-intérêts avait et´´ e déposée contre lui en vertu de l’art. 54.1 du Code — Cour ne croyait pas que l’affaire avait et´´ e administrée en conformité avec l’art. 54.4 du Code — Par conséquent, la Cour a annulé le jugement faisant l’objet de l’appel et a renvoyé le dossier a` un autre juge de la Cour supérieure a` la seule fin de poursuivre l’audition sur les questions relatives a` l’art. 54.1 du Code. Statutes considered: Code de procédure civile, L.R.Q., c. C-25 art. 54.1 [ad. 2009, c. 12, art. 2] — referred to art. 54.4 al. 2 [ad. 2009, c. 12, art. 2] — referred to

APPEAL by plaintiff from judgment reported at Tannenbaum v. Lazare (2009), 72 C.C.L.T. (3d) 227, [2009] R.R.A. 1094, 2009 CarswellQue 11466, EYB 2009-166081, 2009 QCCS 5072 (Que. S.C.), granting motion under art. 54.1 of Code of Civil Procedure against him.

Julius H. Grey, for Appellant Norman Lazare, Joan Benson, Respondents, in person Marie-Josée Bélainsky, for Professional Liability Insurance Fund of the Barreau du Québec

Per curiam:

1 We are unanimously of the opinion that Appellant was not afforded due process once he was advised by the trial judge that he was facing a claim for damages under articles 54.1 and following of the Code of Civil Procedure, which claim ultimately turned out to be in the amount $ 280,000. Appellant was denied a postponement in order to secure the advice of counsel and prepare his contestation of this very substantial claim. 196 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

2 We do not believe that the matter was dealt within a manner that is in conformity with, among other provisions, par. 2 of article 54.4 of the Code of Civil Procedure. 3 The Court notes that Appellant has desisted from his action and is not appealing its dismissal but only the conclusions under article 54.1 of the Code of Civil Procedure as mentioned in his inscription in appeal. 4 FOR THESE REASONS, THE COURT : 5 GRANTS the appeal; 6 QUASHES the judgment a quo; 7 RETURNS the file to the Superior Court before another judge for a continuation of the hearing on the sole issues pertaining to articles 54.1 and following of the Code of Civil Procedure. 8 In the circumstances, no costs are awarded on the appeal. Appeal allowed. Lauzon c. Auger 197

[Indexed as: Lauzon c. Auger] Claude Auger (Appelant-défendeur-demandeur reconventionnel) c. Gérard Lauzon (Intimé-demandeur-défendeur reconventionnel) Cour d’appel du Québec Docket: C.A. Montréal 500-09-020406-104 2012 QCCA 27 Rochon, Bich, Bouchard, JJ.C.A. Heard: 15 décembre 2011 Judgment: 11 janvier 2012* Réparations –––– Dommages-intérêts — Dommages-intérêts fondés sur la responsabilité délictuelle — Préjudice personnel — Principes relatifs a` l’attribution de dommages-intérêts généraux — Coups et blessures — Agression sexuelle –––– Victime, qui n’était encore qu’un enfant, a et´´ e agressée sexuellement a` de multiples reprises par l’agresseur — Quelque quarante années plus tard, la victime a déposé une action en dommages-intérêts a` l’encontre de son agresseur et ce dernier, en retour, a déposé une demande reconventionnelle visant a` obtenir le remboursement d’une somme de 7 000 $ qu’il avait payée a` la victime peu de temps avant que celle-ci ne dépose son action — Juge de pre- mière instance a accueilli l’action et a condamné l’agresseur a` payer 195 000 $ en dommages-intérêts a` la victime — Juge de première instance a réservé les droits de la victime a` demander des dommages-intérêts additionnels — Agres- seur a interjeté appel a` la Cour d’appel — Appel accueilli en partie — Il est normal qu’une victime d’agression sexuelle ne soit pas précise a` propos de dates — Témoin a affirmé avoir et´´ e elle-aussi victime de l’agresseur — Montant d’argent payé par l’agresseur constituait un aveu implicite des abus — Recours de la victime n’était pas prescrit puisque la preuve démontrait qu’elle etait´ dans l’impossibilité d’agir — Juge de première instance n’a pas commis d’erreur dans son appréciation du préjudice, et les dommages-intérêts accordés se situaient dans les montants accordés dans des cas d’agression sexuelle — En revanche, la juge de première instance a commis une erreur en réservant les droits de la victime de réclamer des dommages-intérêts additionnels — Preuve n’indiquait pas que l’état de santé de la victime ne s’était pas stabilisée au moment où le procès a eu lieu — Par conséquent, l’appel a et´´ e accueilli aux seules fins d’annuler

*Demande d’autorisation d’appel rejet´ee e` Lauzon c. Auger (2012), 2012 Car- swellQue 4587, 2012 CarswellQue 4588 (S.C.C.). 198 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

l’ordonnance de la juge de première instance de réserver les droits de la victime de réclamer des dommages-intérêts additionnels. Réparations –––– Dommages-intérêts — Dommages-intérêts fondés sur la responsabilité délictuelle — Préjudice personnel — Perte pécuniaire future — Gravité de l’incapacité — Divers –––– Victime, qui n’était encore qu’un enfant, a et´´ e agressée sexuellement a` de multiples reprises par l’agresseur — Quelque quarante années plus tard, la victime a déposé une action en dommages-intérêts a` l’encontre de son agresseur et ce dernier, en retour, a déposé une demande reconventionnelle visant a` obtenir le remboursement d’une somme de 7 000 $ qu’il avait payée a` la victime peu de temps avant que celle-ci ne dépose son action — Juge de première instance a accueilli l’action et a con- damné l’agresseur a` payer 195 000 $ en dommages-intérêts a` la victime — Juge de première instance a réservé les droits de la victime a` demander des dommages-intérêts additionnels — Agresseur a interjeté appel a` la Cour d’appel — Appel accueilli en partie — Il est normal qu’une victime d’agression sexuelle ne soit pas précise a` propos de dates — Témoin a affirmé avoir et´´ e elle-aussi victime de l’agresseur — Montant d’argent payé par l’agresseur constituait un aveu implicite des abus — Recours de la victime n’était pas prescrit puisque la preuve démontrait qu’elle etait´ dans l’impossibilité d’agir — Juge de première instance n’a pas commis d’erreur dans son appréciation du préjudice, et les dommages- intérêts accordés se situaient dans les montants accordés dans des cas d’agression sexuelle — En revanche, la juge de première instance a commis une erreur en réservant les droits de la victime de réclamer des dommages-intérêts additionnels — Preuve n’indiquait pas que l’état de santé de la victime ne s’était pas stabilisée au moment où le procès a eu lieu — Par conséquent, l’appel a et´´ e accueilli aux seules fins d’annuler l’ordonnance de la juge de première instance de réserver les droits de la victime de réclamer des dommages-intérêts additionnels. Réparations –––– Dommages-intérêts — Dommages-intérêts fondés sur la responsabilité délictuelle — Préjudice personnel — Coût des soins futurs — Divers –––– Victime, qui n’était encore qu’un enfant, a et´´ e agressée sexuellement a` de multiples reprises par l’agresseur — Quelque quarante années plus tard, la victime a déposé une action en dommages-intérêts a` l’encontre de son agresseur et ce dernier, en retour, a déposé une demande reconventionnelle visant a` obtenir le remboursement d’une somme de 7 000 $ qu’il avait payée a` la victime peu de temps avant que celle-ci ne dépose son action — Juge de pre- mière instance a accueilli l’action et a condamné l’agresseur a` payer 195 000 $ en dommages-intérêts a` la victime — Juge de première instance a réservé les droits de la victime a` demander des dommages-intérêts additionnels — Agres- seur a interjeté appel a` la Cour d’appel — Appel accueilli en partie — Il est normal qu’une victime d’agression sexuelle ne soit pas précise a` propos de dates — Témoin a affirmé avoir et´´ e elle-aussi victime de l’agresseur — Montant d’argent Lauzon c. Auger 199

payé par l’agresseur constituait un aveu implicite des abus — Recours de la victime n’était pas prescrit puisque la preuve démontrait qu’elle etait´ dans l’impossibilité d’agir — Juge de première instance n’a pas commis d’erreur dans son appréciation du préjudice, et les dommages-intérêts accordés se situaient dans les montants accordés dans des cas d’agression sexuelle — En revanche, la juge de première instance a commis une erreur en réservant les droits de la victime de réclamer des dommages-intérêts additionnels — Preuve n’indiquait pas que l’état de santé de la victime ne s’était pas stabilisée au moment où le procès a eu lieu — Par conséquent, l’appel a et´´ e accueilli aux seules fins d’annuler l’ordonnance de la juge de première instance de réserver les droits de la victime de réclamer des dommages-intérêts additionnels. Remedies –––– Damages — Damages in tort — Personal injury — Princi- ples relating to awards of general damages — Assault and battery — Sexual assault –––– Victim, who was then still child, was sexually abused by abuser on multiple occasions — Some forty years later, victim brought action in damages against his abuser and abuser, in turn, brought counterclaim, seeking repayment of sum of $7,000 he had paid to victim short time before victim brought his action — Trial judge allowed action and ordered abuser to pay $195,000 in damages to victim — Trial judge reserved victim’s right to claim additional damages — Abuser appealed to Court of Appeal — Appeal allowed in part — It is normal for victim of sexual abuse not to be specific about dates — Witness testified that she had also been victim of abuser — Amount of money paid by abuser was implicit admission of abuse — Victim’s recourse was not time-barred as evidence showed he was unable to act — Trial judge did not err in assessing prejudice, and damages awarded were within amounts awarded for sexual abuse — However, trial judge erred in reserving victim’s right to claim additional damages — Evidence did not show that victim’s condition had not stabilized at time trial was held — Therefore, appeal was allowed for sole purpose of setting aside trial judge’s order to reserve victim’s right to claim additional damages. Remedies –––– Damages — Damages in tort — Personal injury — Prospec- tive pecuniary loss — Extent of incapacity — Miscellaneous –––– Victim, who was then still child, was sexually abused by abuser on multiple occasions — Some forty years later, victim brought action in damages against his abuser and abuser, in turn, brought counterclaim, seeking repayment of sum of $7,000 he had paid to victim short time before victim brought his action — Trial judge allowed action and ordered abuser to pay $195,000 in damages to victim — Trial judge reserved victim’s right to claim additional damages — Abuser appealed to Court of Appeal — Appeal allowed in part — It is normal for victim of sexual abuse not to be specific about dates — Witness testified that she had also been victim of abuser — Amount of money paid by abuser was implicit admission of abuse — Victim’s recourse was not time-barred as evi- 200 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d) dence showed he was unable to act — Trial judge did not err in assessing prejudice, and damages awarded were within amounts awarded for sexual abuse — However, trial judge erred in reserving victim’s right to claim additional damages — Evidence did not show that victim’s condition had not stabilized at time trial was held — Therefore, appeal was allowed for sole purpose of setting aside trial judge’s order to reserve victim’s right to claim additional damages. Remedies –––– Damages — Damages in tort — Personal injury — Cost of future care — Miscellaneous –––– Victim, who was then still child, was sexually abused by abuser on multiple occasions — Some forty years later, victim brought action in damages against his abuser and abuser, in turn, brought counterclaim, seeking repayment of sum of $7,000 he had paid to victim short time before victim brought his action — Trial judge allowed action and ordered abuser to pay $195,000 in damages to victim — Trial judge reserved victim’s right to claim additional damages — Abuser appealed to Court of Appeal — Appeal allowed in part — It is normal for victim of sexual abuse not to be specific about dates — Witness testified that she had also been victim of abuser — Amount of money paid by abuser was implicit admission of abuse — Victim’s recourse was not time-barred as evidence showed he was unable to act — Trial judge did not err in assessing prejudice, and damages awarded were within amounts awarded for sexual abuse — However, trial judge erred in reserving victim’s right to claim additional damages — Evidence did not show that victim’s condition had not stabilized at time trial was held — Therefore, appeal was allowed for sole purpose of setting aside trial judge’s order to reserve victim’s right to claim additional damages. Cases considered: Andrews v. Grand & Toy Alberta Ltd. (1978), 1978 CarswellAlta 214, 1978 CarswellAlta 295, [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, 19 N.R. 50, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, [1978] S.C.J. No. 6 (S.C.C.) — referred to L. (P.) c. L. (J.) (2011), [2011] R.J.Q. 1274, 2011 QCCA 1233, 2011 Carswell- Que 6743, EYB 2011-192579 (Que. C.A.) — referred to Statutes considered: Code civil du Québec, L.Q. 1991, c. 64 art. 1615 — referred to

APPEL de l’agresseur a` l’encontre d’une décision publiée a` Lauzon c. Auger (2010), [2010] R.R.A. 62, 73 C.C.L.T. (3d) 265, 2010 CarswellQue 222, EYB 2010-168512, 2010 QCCS 83, [2010] R.J.Q. 544 (Que. S.C.), l’ayant condamné a` payer des dommages-intérêts a` sa victime. Lauzon c. Auger Per curiam 201

Roger Pilon, pour l’appelant Alain Lessard, pour l’intim´e

Per curiam:

1 L’appelant se pourvoit contre un jugement de la Cour supérieure du district de Montréal rendu le 15 janvier 2010 par l’honorable Anne-Marie Trahan. Cette dernière a accueilli le recours en dommages-intérêts de l’intimé qui allègue avoir et´´ e abusé sexuellement par l’appelant durant son enfance et son adolescence. Elle l’a, en conséquence, condamné a` payer a` l’intimé 195 000 $ avec l’intérêt au taux légal et l’indemnité ad- ditionnelle a` compter du 22 mai 2005. 2 La juge de première instance a egalement´ rejeté la demande reconventionnelle de l’appelant par laquelle ce dernier demandait le remboursement de la somme de 7 000 $ versée a` l’intimé en décembre 2004. 3 La juge de la Cour supérieure a conclu, après une analyse détaillée de la preuve et même si les abus dont l’intimé a et´´ e victime datent de plus de 40 ans, que ceux-ci ont bel et bien et´´ e commis par l’appelant. 4 En appel, ce dernier soutient que la juge a erré dans son evaluation´ de la preuve en ne tenant pas compte des erreurs commises par l’intimé quant aux dates et aux lieux où les agressions auraient et´´ e commises. L’appelant a tort. La juge etait´ pleinement consciente des déficiences du témoignage de l’intimé sous ce rapport. Si elle a ecart´´ e l’argument de l’appelant, c’est en raison du témoignage non contredit du Dr Beltrami, psychiatre, qui explique que les personnes abusées ont souvent des problèmes avec les dates, ce qui est le cas de l’intimé. 5 L’ensemble de la preuve, de plus, permettait a` la juge de première instance de conclure comme elle l’a fait. Il y a tout d’abord le témoignage d’Andrée Lauzon Pavanello qui confirme que l’intimé a déjà gardé les enfants de l’appelant alors que ce fait important est vigoureuse- ment nié par ce dernier. Le témoignage de Diane Lauzon-Girard, qui a et´´ e elle aussi agressée par l’appelant dans l’appartement de la rue Lajeu- nesse, donne egalement´ beaucoup de poids a` la version de l’intimé. Il en va de même du dépôt de la somme de 7 000 $ par l’appelant dans le compte de l’intimé a` la suite de l’envoi par celui-ci de la lettre P-1, le- quel dépôt constitue un aveu implicite des abus commis. Quant aux ex- plications fournies par l’appelant relativement a` la pièce D-1, que la juge considère etreˆ un faux, enlevant ainsi toute crédibilité a` l’appelant, cette dernière a eu raison de qualifier celles-ci d’invraisemblables, un qualifi- 202 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

catif, du reste, qui s’applique tout autant a` l’hypothèse selon laquelle la pièce D-1 ne serait pas un faux. 6 Bref, l’appelant ne nous a pas démontré que la juge de première instance a commis des erreurs manifestes et déterminantes dans l’appréciation de la preuve qui lui a et´´ e présentée, etant´ précisé ici que la Cour n’approuve pas toutes les remarques de la juge qui, soit dit avec egards,´ aurait pu par endroit faire preuve de plus de retenue et ainsi epargner´ au lecteur certains détails inutiles. 7 La juge a egalement´ conclu que le recours de l’intimé, signifié a` l’appelant le 3 octobre 2005, n’était pas prescrit. Elle donne pour raison que l’intimé ne pouvait pas agir avant le 15 décembre 2004, date où il se manifeste pour la première fois a` son agresseur, en l’occurrence l’appelant, par l’envoi de la lettre P-1. La conclusion de la juge s’appuie encore une fois sur le témoignage du Dr Beltrami et sur celui du psychothérapeute de l’intimé, Guy Forest, qui, malgré qu’il ne témoigne pas comme expert, suit ce dernier depuis le 22 septembre 1999. 8 L’appelant soutient que l’intimé a indiqué a` M. Forest, dès le début de sa thérapie, qu’il avait et´´ e abusé sexuellement par lui. Par la suite, il aurait même evoqu´´ e auprès de son thérapeute, en juillet 2002, la pos- sibilité d’intenter un recours judiciaire contre l’appelant. L’intimé etait´ donc en mesure, dès cette epoque,´ d’établir un lien entre son etat´ psychique lamentable et les gestes commis par l’appelant. Dès lors, rien ne l’empêchait de prendre action de sorte que son recours serait prescrit, contrairement a` ce que la juge a décidé. 9 Les choses ne sont pas aussi simples. L’intimé a expliqué qu’il con- sultait en 1999 pour le deuil d’une relation amoureuse. Or, même si le sujet des agressions sexuelles a et´´ e abordé a` quelques reprises lors de sa thérapie, il etait´ presque immédiatement ecart´´ e pendant de longues péri- odes parce qu’il provoquait chez l’intimé une charge emotive´ trop intense suivie d’une régression. 10 La juge de première instance retient plutôt de la preuve que l’intimé, en tout temps pertinent, etait´ paralysé et terrorisé, ce qui l’a privé jusqu’au 15 décembre 2004 de son libre arbitre. Voici comment la juge s’exprime a` ce sujet : [162] Ces deux témoignages non contredits et ce que le Tribunal a vu et entendu de monsieur Lauzon le convainquent que celui-ci etant´ dans l’impossibilité d’agir avant le mois de décembre 2004. [163] Jusqu’alors monsieur Lauzon vivait dans la crainte. Il craignait monsieur Auger a` cause de ce qu’il lui avait fait; il craignait les per- Lauzon c. Auger Per curiam 203

sonnes en autorité; il craignait que l’on ne découvre son secret. Cette crainte le privait, en plus, de son estime de soi et de son aptitude a` fonctionner normalement, du plein exercice de sa volonté, plus par- ticulièrement en ce qui a trait a` l’exercice d’une action en justice contre l’auteur de ses malheurs. [164] De l’avis du Tribunal, cette crainte a privé monsieur Lauzon de l’exercice de son libre arbitre. Elle etait´ une crainte raisonnable et portait sur un mal objectivement sérieux : il craignait d’être rejeté. Il a fait des attaques de panique. Il a consommé drogue et alcool pour oublier ou pour se donner du courage. Tout jeune, il a consulté des médecins pour trouver aide et compréhension. Il a touché le fond du bail après la séparation de monsieur Fournier. Grâce a` la psychothér- apie avec monsieur Forest, il a pu, petit a` petit, s’ouvrir et voir clair. L’impossibilité d’agir etait´ absolue. [165] Le Tribunal en vient a` la conclusion que l’action intentée en octobre 2005 n’est pas prescrite. 11 C’est là une conclusion de fait que la juge pouvait légitimement tirer de la preuve sans, en cela, commettre une erreur révisable. La Cour ne saurait donc intervenir. 12 La juge a accordé a` l’intimé 195 000 $, dont 100 000 $ a` titre de dommages moraux, et non pas 161 795,91 $ comme l’écrit l’appelant au paragraphe 97 de son mémoire. Partant de cette base erronée, l’appelant soutient que le montant alloué au chapitre des dommages moraux est net- tement exagéré etant´ donné le plafond fixé par la Cour suprême en 1978 dans l’arrêt Andrews1 et indexé depuis2. L’appelant soutient egalement´ que les agressions se limitaient a` des actes de fellation et de masturba- tion, laissant entendre par là que ces actes ne sont pas suffisamment graves pour avoir pu occasionner tous les troubles psychologiques subis par l’intimé. 13 Pour etablir´ les pertes non pécuniaires, la juge a pris en compte les facteurs suivants, tirés de la preuve : [175] N’oublions pas qu’en l’instance, monsieur Lauzon a com- mencé a` etreˆ abusé vers l’âge de 7 ou 8 ans et que cela s’est pour- suivi d’une fa¸con ou d’une autre jusqu’à ce qu’il ait une quinzaine

1Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 (S.C.C.). 2En 2005, année du dépôt de la requête introductive d’instance, ce plafond etait´ de 292 000 $. Voir : Daniel Gardner, Le préjudice corporel, 3e ed.,´ Cowansville, Editions´ Yvon Blais, 2009, p. 366, n° 381. 204 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

d’années. Il a aujourd’hui 58 ans et il subit encore les séquelles des gestes odieux dont il a et´´ e victime. Cela fait 50 ans qu’il est mal dans sa peau a` cause des gestes odieux et méprisables de monsieur Auger a` son endroit. [176] La preuve est eloquente,´ il souffre d’angoisse et d’anxiété elev´´ ees, son humeur est labile et irritable, il eprouve´ de la tristesse, de la fatigue, une baisse d’énergie, de la difficulté a` avoir du plaisir. Il souffre de désordre de la pensée, d’immaturité, de pauvre jugement, d’instabilité. Il a de la difficulté a` se comprendre et eprouve´ une constriction de ses sentiments. Il a peur des personnes en autorité ou a` forte personnalité. Il rumine tous ces problèmes et se souvient encore, malgré les années, de ce qu’il lui est arrivé; il fait de la rumi- nation. Il eprouve´ des sentiments de culpabilité, des troubles de panique, des troubles du sommeil. Il somatise. De fa¸con récurrente, il est dépressif. Il a perdu espoir. Il a des idées suicidaires ou morbides et a déjà tenté de se suicider. Pendant une dizaine d’années, il a souf- fert d’alcoolisme et de toxicomanie. Il s’est prostitué et a eu des com- portements asociaux. Il manque de confiance en lui-même et d’estime de soi. Il a et´´ e incapable d’établir de véritables relations amoureuses et interpersonnelles. Même si sa relation avec monsieur Pierre Fournier a duré près de 20 ans, il a suivi le modèle qu’il avait appris auprès de son agresseur : la rapidité et le silence. Il est isolé socialement et a peu d’amis. Il se méfie d’autrui. [. . .]. [177] Monsieur Lauzon a peur des autres, peur d’être abusé, de ne pas etreˆ cru, d’être blessé. Il a eu longtemps l’impression d’avoir l’étiquette « abusé » sur le front. A` une certaine epoque,´ il a eu peur d’être seul dans un parc. Il ne conduit pas et n’est pas a` l’aise dans les transports en commun; quoiqu’en dise l’avocat du défendeur, souffrir d’agoraphobie et travailler dans un salon de coiffure ne sont pas incompatibles. [178] Il a et´´ e diagnostiqué comme ayant un syndrome anxiodépressif a` caractère traumatique. Pour survivre, il a fait de la dissociation. Il eprouve´ de la difficulté a` se concentrer et a des pertes de mémoire. [179] Ce n’est que récemment qu’il a trouvé un travail qui lui convient. [180] Il a commencé a` consulter pour tous ces problèmes alors qu’il etait´ jeune (vers 18-19 ans). Il a pris des médicaments toute sa vie et ne peut fonctionner sans eux. 14 De l’avis de la Cour, les el´´ ements considérés par la juge sont per- tinents et ne font voir aucune erreur de sa part. La juge mentionne de plus s’être livrée a` une comparaison des indemnités octroyées par les tribunaux. Or, le montant de 100 000 $ accordé en l’espèce a` titre de Lauzon c. Auger Per curiam 205

dommages moraux, même s’il peut paraˆıtre elev´´ e, se situe dans la limite supérieure des montants octroyés a` ce titre dans les recours civils pour abus sexuel3. A` moins de vouloir substituer son evaluation´ a` celle de la juge, la Cour ne saurait intervenir. 15 Enfin, la juge de première instance, au paragraphe 211 de son jugement, « réserve les droits du demandeur de réclamer des dommages futurs autres que ceux prévus au présent jugement ». Cette réserve de recours, qui découle de l’article 1615 C.c.Q., permet a` la victime dont l’état de santé n’est pas stabilisé au procès de retourner devant les tribunaux afin de réclamer des dommages supplémentaires. Or, il n’y a pas de preuve au dossier a` cet effet. En conséquence, la juge ne pouvait pas faire droit a` cette demande de l’intimé.

POUR CES MOTIFS, LA COUR : 16 ACCUEILLE l’appel uniquement aux fins de casser le paragraphe 211 du jugement de première instance; 17 CONFIRME le jugement de première instance quant au reste; 18 Avec dépens en faveur de l’intimé devant les deux cours. Appel accueilli en partie.

3Voir : L. (P.) c. L. (J.), 2011 QCCA 1233 (Que. C.A.), paragr. 82 a` 102. 206 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

[Indexed as: Chasczewski Estate v. 528089 Ontario Inc.] John E. Chasczewski, Executor of the Estate of Millie Chasczewski, Deceased, John E. Chasczewski, Tod Chasczewski and Gary Chasczewski (Plaintiffs / Appellants) and 528089 Ontario Inc., operating as Whitby Ambulance Service, William Cocker, F. Webster and R. Werner (Defendants / Respondents) Ontario Court of Appeal Docket: CA C53915 2012 ONCA 97 Dennis O’Connor A.C.J.O., John Laskin, E.A. Cronk JJ.A. Heard: December 16, 2011 Judgment: February 13, 2012 Civil practice and procedure –––– Summary judgment — Evidence on application — Affidavit evidence — Sufficiency — Affidavit in defence –––– Plaintiffs brought action against ambulance service and paramedics for negligence in providing care to deceased in 1996 — Death was caused by severe coronary artery disease leading to sudden asystolic cardiac arrest — Defendants’ expert, Dr. M, opined that survival rate in Ontario in 1996 for person in deceased’s situation was only 2.4 per cent even when given best advance care — Plaintiffs did not respond to this evidence — Defendants brought successful motion for summary judgment dismissing action — Motion judge found that deceased had virtually no chance of survival even if alleged standard of care was met — Plaintiffs appealed — Appeal allowed — Motion judge erred in dismissing plaintiffs’ claim on basis that they did not respond to Dr. M’s opinion — Dr. M’s opinion, and his reliance on 2.4 per cent survival rate, did not respond at all to plaintiffs’ theory of case — Dr. M did not give any opinion evidence on deceased’s chance of survival if she had arrived at hospital with heartbeat — Dr. M’s opinion was based on statistic from study reported in article in scholarly journal, which he did not append to his affidavit — Motion judge could not have had full appreciation of issue of causation — Full appreciation of evidence on issue of causation required trial. Health law –––– Malpractice — Negligence — Causation –––– Plaintiffs brought action against ambulance service and paramedics for negligence in providing care to deceased in 1996 — Death was caused by severe coronary artery disease leading to sudden asystolic cardiac arrest — Defendants’ expert, Dr. M, opined that survival rate in Ontario in 1996 for person in deceased’s situation was only 2.4 per cent even when given best advance care — Plaintiffs did not respond to this evidence — Defendants brought successful motion for summary Chasczewski Estate v. 528089 Ontario Inc. 207

judgment dismissing action — Motion judge found that deceased had virtually no chance of survival even if alleged standard of care was met — Plaintiffs appealed — Appeal allowed — Motion judge erred relying on Dr. M’s opinion and in holding that plaintiffs had onus to respond to it — Full appreciation of evidence on issue of causation required trial — Motion judge did not set out plaintiffs’ theory on how defendants breached standard of care, which likely contributed to his error in addressing issue of causation — Motion judge had to assume that defendants breached standard of care in order to decide whether causation was also genuine issue requiring trial. Cases considered by John Laskin J.A.: Bafaro v. Dowd (2010), 260 O.A.C. 70, 2010 ONCA 188, 2010 CarswellOnt 1410, [2010] O.J. No. 979 (Ont. C.A.) — referred to Laferri`ere c. Lawson (1991), 6 C.C.L.T. (2d) 119, 78 D.L.R. (4th) 609, 123 N.R. 325, 38 Q.A.C. 161, [1991] 1 S.C.R. 541, 1991 CarswellQue 74, [1991] R.R.A. 320, 1991 CarswellQue 101, [1991] S.C.J. No. 18, EYB 1991-67747 (S.C.C.) — followed McLean (Litigation Guardian of) v. Seisel (2004), 2004 CarswellOnt 200, (sub nom. McLean v. Seisel) 182 O.A.C. 122, [2004] O.J. No. 185 (Ont. C.A.) — referred to R. v. Marquard (1993), 66 O.A.C. 161, 1993 CarswellOnt 995, 1993 Carswell- Ont 127, 25 C.R. (4th) 1, 85 C.C.C. (3d) 193, [1993] 4 S.C.R. 223, 108 D.L.R. (4th) 47, 159 N.R. 81, EYB 1993-67538, [1993] S.C.J. No. 119 (S.C.C.) — considered R. v. Mohan (1994), 18 O.R. (3d) 160 (note), 29 C.R. (4th) 243, 71 O.A.C. 241, 166 N.R. 245, 89 C.C.C. (3d) 402, 114 D.L.R. (4th) 419, [1994] 2 S.C.R. 9, 1994 CarswellOnt 1155, 1994 CarswellOnt 66, EYB 1994-67655, [1994] S.C.J. No. 36 (S.C.C.) — considered Randall (Litigation Guardian of) v. Lakeridge Health Oshawa (2010), (sub nom. Randall v. Lakeridge Health Oshawa) 270 O.A.C. 371, 75 C.C.L.T. (3d) 165, 2010 CarswellOnt 5482, 2010 ONCA 537, [2010] O.J. No. 3227 (Ont. C.A.) — referred to Words and phrases considered: load and go patient A “load and go” patient includes one with “unstable respiratory, circulatory and/or neurological status or in whom instability is imminent or highly likely on the basis of assessment findings.”

APPEAL by plaintiffs from judgment reported at Chasczewski Estate v. 528089 Ontario Inc. (2011), 2011 ONSC 999, 2011 CarswellOnt 4287 (Ont. S.C.J.), granting defendants’ motion for summary judgment.

Allan Rouben, Amani Oakley, for Appellants 208 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Deborah Berlach, Ren´ee A. Kopp, for Respondents

John Laskin J.A.: A. Overview 1 The plaintiffs appeal the summary judgment dismissing their action for medical malpractice. 2 On December 22, 1996, Frank Webster and Robert Werner, two paramedics with the Whitby Ambulance Service, responded to a 9-1-1 call at the home of Mr. and Mrs. John and Millie Chasczewski. They were told that a woman (Mrs. Chasczewski) was choking and was unresponsive. 3 Webster and Werner arrived at the Chasczewski’s home promptly, but remained there for at least 12 minutes before transporting Mrs. Chasczewski to the emergency department of the local Whitby hospital. Sadly, she went into cardiac arrest while in the back of the ambulance, could not be revived, and was pronounced dead at the hospital. 4 The Chasczewski family sued the two paramedics, the ambulance service and its owner, William Cocker, for negligence. They alleged that the paramedics ought to have transported Mrs. Chasczewski to the hospital sooner. Had they done so, Mrs. Chasczewski could have been treated at the hospital while she still had a heart beat and would likely have survived. 5 The defendants brought a motion for summary judgment to dismiss the claim. Edwards J. granted the motion. He held that whether the defendants met the standard of care was a genuine issue requiring a trial. However, he also held that even if the defendants breached the standard of care required of them, their breach did not cause Mrs. Chasczewski’s death because she would have died anyway. 6 In holding that the issue of causation did not require a trial, the motion judge relied on the opinion of the defendants’ expert who said the survival rate for a person with a complete heart block who suffers a pre- cardiac or cardiac arrest outside the hospital was only 2.4 per cent. The plaintiffs filed no response to this opinion. The motion judge concluded that their failure to do so was “determinative of this motion.” 7 The Chasczewski family’s main argument on appeal is that the motion judge erred in relying on the opinion of the defendants’ expert and in holding that the plaintiffs had an onus to respond to it. They submit that the opinion of the defendants’ expert did not address the plaintiffs’ the- Chasczewski Estate v. 528089 Ontario Inc. John Laskin J.A. 209

ory of the case. I agree with this submission. A full appreciation of the evidence on the issue of causation requires a trial. I would set aside the motion judge’s order and dismiss the motion for summary judgment.

B. The Record 8 The record before the motion judge was substantial. It included medical reports and the affidavit of John Chasczewski, who was a firefighter and administered partial CPR to his wife before the paramedics arrived. 9 The record also included three affidavits from experts, two filed by the plaintiffs and one by the defendants. The plaintiffs filed the affidavits of Dr. Steven Shilling, a cardiologist from Irving, Texas, with 17 years experience, and the affidavit of Alex Stadthagen, a paramedic and paramedic instructor also from Irving, Texas, with nearly 30 years experience. Each appended to his affidavit an expert report prepared in 2004. 10 The defendants filed the affidavit of Dr. Douglas Munkley, a medical doctor specializing in emergency medicine, and, since 1986, the medical director of the base hospital paramedic program for the Niagara Region. Dr. Munkley appended to his affidavit two reports, one prepared in Au- gust 2007, and the second, a supplementary report prepared in April 2008. It was the supplementary report that the motion judge relied on to grant summary judgment. 11 None of the experts was cross-examined on his affidavit. And neither of the two paramedics, Webster and Werner, filed affidavits on the motion.

C. The Standard of Care 12 In this case, as in most medical malpractice actions, the two main issues are standard of care and causation: did the defendants fall below the standard of care required of them; and if they did, did their failure to meet the standard of care cause Mrs. Chasczewski’s death? 13 The motion judge was presented with competing expert opinions on the standard of care, one from Mr. Stadthagen, who said that the paramedics breached the standard of care, and the other from Dr. Mun- kley, who said that they had met the standard. Faced with these contradictory opinions, neither of which was challenged on cross-examination, the motion judge sensibly concluded that whether the defendants met the standard of care was a genuine issue requiring a trial. 210 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

14 The motion judge did not, however, set out the plaintiffs’ theory on how Webster and Werner breached the standard of care. His failure to do so likely contributed to his error in addressing the issue of causation. 15 The question whether the standard of care was met should be decided before the question of factual causation: see Bafaro v. Dowd, 2010 ONCA 188, 260 O.A.C. 70 (Ont. C.A.); and Randall (Litigation Guardian of) v. Lakeridge Health Oshawa, 2010 ONCA 537, 270 O.A.C. 371 (Ont. C.A.). It must be resolved first for two reasons. First, without a finding that the defendant has breached the standard of care, the question of causation becomes moot. Second, and more important for this case, it is the defendant’s particular substandard act or omission that must be shown to have caused the harm; therefore, it is necessary to identify that act or omission to determine what, if any, connection it has to the harm at issue. In other words, causation can only be assessed in the context of a breach of the standard of care. 16 Because this was a summary judgment motion, the motion judge did not have to resolve whether the defendants breached the standard of care - indeed he correctly found that he could not do so on the record before him. However, he had to assume that the defendants breached the standard of care in the manner alleged by the plaintiffs, in order to decide whether causation was also a genuine issue requiring a trial.

(a) The Timeline 17 To properly assess whether causation raised an issue for trial, I will set out the basis for the plaintiffs’ claim that Webster and Werner breached the standard of care. Important to this assessment is the timeline for what the paramedics did in relation to Mrs. Chasczewski’s cardiac activity. As counsel for the plaintiffs aptly observed, this was a case in which minutes, if not seconds, were critical to Mrs. Chasczewski’s chances of survival. 18 The motion judge set out at para. 4 of his reasons the following timeline of events: Call received 12:53:22 Crew notified 12:53:36 En route to call 12:53:36 Arrived scene 12:55:48 Depart scene 13:13:32 Arrived hospital 13:17:10 Chasczewski Estate v. 528089 Ontario Inc. John Laskin J.A. 211

19 From this timeline, he found that the paramedics remained on scene at the Chasczewski residence for just under eighteen minutes: see para. 5. However, because he did not deal with the plaintiffs’ theory on the alleged breach of the standard of care, he did not examine the timing of these events in relation to Mrs. Chasczewski’s condition. 20 Based on the record, a timeline including this vital information is as follows: 12:53:22 911 call received 12:53:36 Webster and Werner leave for the Chasczewski residence 12:55:48 Webster and Werner arrive at the Chasczewski residence 12:56:59 Mrs. Chasczewski has a decreased level of consciousness and low cardiac activity, with a pulse rate of 8 to 10 beats per minute 13:01:02 Mrs. Chasczewski’s heart rate is 36 beats per minute 13:07:00 Mrs. Chasczewski’s cardiac activity stops 13:11:06 Mrs. Chasczewski suffers a cardiac arrest while in the ambulance 13:13:32 The ambulance crew calls into dispatch to say that they have left the scene 13:17:10 The ambulance arrives at the Whitby hospital emergency department; Mrs. Chasczewski cannot be revived and is pronounced dead 21 The evidence on what happened between 12:53 (when the paramedics arrived at the Chasczewski residence) and 13:07 (when Mrs. Chasczew- ski’s cardiac activity stopped) is consistent throughout the record. 22 Where discrepancies do exist is in the period between 13:07 and 13:17. Perhaps the most important discrepancy concerns how long the paramedics remained at the Chasczewski residence. The motion judge found that they stayed there for nearly 18 minutes. A Ministry of Health investigation report estimated that the paramedic crew was on scene at the Chasczewski residence for about 12 minutes before leaving for the hospital. Although it is not possible on this record to pinpoint the precise time of departure, likely, the paramedics left shortly before 13:13, the time found by the motion judge, and stopped at the side of the road to treat Mrs. Chasczewski. She went into cardiac arrest while in the back of 212 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

the ambulance. And when Webster, who was driving, called in at 13:13, the ambulance was already en route to the hospital. 23 These discrepancies may have to be sorted out at trial. On this appeal, we can safely accept three facts critical to the plaintiffs’ case: • Mrs. Chasczewski had a heart rate or cardiac activity for about 10 minutes after the paramedics arrived at the Chasczewski residence; • The paramedics stayed at the Chasczewski residence for at least 12 minutes and perhaps longer; • It took only about four minutes to drive from the Chasczewski residence to the Whitby hospital. This figure is used in the material and is supported by (a) the Chasczewski residence was about four to five kilometres from the hospital and (b) the dispatch record shows that the ambulance drove at an average speed of 80 kilometres per hour

(b) The Plaintiffs’ Theory of How the Defendants Breached the Standard of Care 24 In a nutshell, the plaintiffs’ theory is that the paramedics were presented with a classic “load and go” situation. Mrs. Chasczewski’s low cardiac activity made it imperative that she be transported to the hospital immediately. Instead, for reasons largely unexplained in the record because neither paramedic gave evidence, Webster and Werner waited at least 12 minutes before putting Mrs. Chasczewski in the ambulance and taking her to the hospital. 25 In seeking to demonstrate a breach of the standard of care, the plaintiffs relied on the opinion of Mr. Stadthagen. Although he practises in Texas, he reviewed the Basic Life Support Patient Care Standards, published by the Ontario Ministry of Health. This publication set out the standards expected of paramedics at the time of the incident. Mr. Stadthagen gave the opinion that these standards are virtually identical to those used in Texas. 26 Appendix 33 to the Ministry’s publication deals with “load and go” patients. A “load and go” patient includes one with “unstable respiratory, circulatory and/or neurological status or in whom instability is imminent or highly likely on the basis of assessment findings.” The appendix lists Chasczewski Estate v. 528089 Ontario Inc. John Laskin J.A. 213

various medical and traumatic conditions characteristic of “load and go” patients. Condition 7 states: Decreased level of consciousness — serious underlying disorder suspect or cannot be ruled out and/or no definitive field treatment is available. 27 The Ministry’s standards stipulate that when dealing with a “load and go” patient, paramedics should first “perform appropriate primary survey interventions.” This assessment should take approximately two minutes unless major problems are encountered. Then, the patient should be put in an ambulance and transported rapidly to the nearest hospital. 28 On the basis of the general description of a “load and go” patient, and particularly condition 7, Mr. Stadthagen was able to say that Mrs. Chasczewski was such a patient. By 12:56:59, immediately after their arrival, the paramedics had determined that Mrs. Chasczewski had a decreased level of consciousness and vital signs consistent with low cardiac activity. She was obviously unstable and required immediate treatment. Mr. Stadhagen gave the opinion that had she been taken to the hospital right after the initial two-minute assessment, as required for “load and go” patients, she would have arrived at the emergency department no later than 13:03, that is, while she still had a heart beat. There, she could have been given an external pacemaker or the drug Atropine intravenously, either of which may have saved her life. 29 Mr. Stadthagen recognized that these treatment options could not be given “in the field” (see condition 7) or at the scene, and therefore had to be administered at the hospital. That is because Webster and Werner, as “primary care paramedics” were not trained to apply a pacemaker or administer drugs intravenously. Only advanced care paramedics are trained in these skills, and Ontario did not have advanced care paramedics until 1998, two years after Mrs. Chasczewski died. 30 Mr. Stadthagen’s overall opinion was that by not treating Mrs. Chasczewski as a “load and go” patient and immediately transporting her to the nearest hospital emergency department, the two attending paramedics, Webster and Werner, fell below the required standard of care. 31 This outline of the plaintiffs’ theory on the standard of care provides the necessary context for the issue of factual causation. However, before turning to that issue, I will briefly address an alternative argument on the standard of care put forward by the defendants. They contend that the plaintiffs filed no admissible evidence on the standard of care because 214 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Mr. Stadthagen neither worked nor was trained in Ontario. He therefore had no direct knowledge of Ontario standards and could not be qualified as an expert. 32 This argument has no merit. The bar for qualifying an expert is not high. The only requirement is that the expert must “have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.), at p. 25. This special knowledge must go “beyond that of the trier of fact”: see R. v. Marquard, [1993] 4 S.C.R. 223 (S.C.C.), at p. 243; McLean (Litigation Guardian of) v. Seisel (2004), 182 O.A.C. 122 (Ont. C.A.), at paras. 105-106. 33 Mr. Stadthagen had the requisite knowledge and expertise regarding paramedical standards of care in Texas. He reviewed the Ontario standards and said under oath that they were nearly identical to those used in Texas, where he practises. His expertise on the standard of care in On- tario went “beyond that of the trier of fact”. Moreover, he was not cross- examined on his opinion or on his qualifications generally. His expert opinion was therefore admissible. Its weight was a matter for the motion judge.

D. Causation (a) Dr. Shilling’s Opinion 34 In seeking to show that the defendants’ breach of the standard of care caused Mrs. Chasczewski’s death, the plaintiffs relied on the expert opinion of Dr. Shilling. From the medical records, Dr. Shilling noted that Mrs. Chasczewski did not have a heart attack, but instead had a complete heart block. As she did not have any heart damage, in his opinion her condition was quite treatable as long as the paramedics transferred her immediately to an advanced life support service. The use of an external cardiac pacemaker or the administration of Atropine intravenously while Mrs. Chasczewski still had a pulse would likely have saved her life. 35 Dr. Shilling considered the timeline and emphasized that after the paramedics arrived at the Chasczewski residence, there was a “10 minute window” when Mrs. Chasczewski had cardiac activity. If she had been given Atropine or an external pacemaker in this window of opportunity, she likely would have survived. He put it this way in the body of his report: 3. Complete heart block is truly an extremely treatable condition. An external pacemaker almost uniformly allows one to temporarily but Chasczewski Estate v. 528089 Ontario Inc. John Laskin J.A. 215

adequately treat this disturbance if it is instituted in an appropriate amount of time. I definitely feel than an external pacemaker would have allowed this patient to survive if instituted immediately [f]or very shortly after paramedic arrival, which appeared to have been at 12:56 p.m. It is definitely more difficult to state whether or not she would have survived if it would have been placed at 13:07, but nevertheless, there is a 10 minute window at that particular time frame when she clearly had cardiac activity and thus, in all reasonable medical probability, I do feel she likely would have survived. 4. I do feel that the patient would have survived if she would have arrived with a pulse and received external cardiac pacing at the time that she did experience a palpable pulse. Again, it is somewhat more difficult when you get out into the 13:05 to 13:06 time frame, but nevertheless, patient[’]s can certainly be salvageable with an external pacemaker. [Emphasis added.] 36 In the concluding paragraph of his report, Dr. Shilling summed up his opinion on Mrs. Chasczewski’s chances of survival: Basically, this patient died from compete heart block and while the paramedics arrived in an extremely rapid amount of time, there is certainly a near 10 minute “gap,” in which there was an adequate window of opportunity to give Atropine or apply an external pacemaker. I think that in all reasonable medical probability, the patient was salvageable up until the time she had no obvious pulse. I do believe that the medical record supports that this was the case up until the 13:06 time frame.

(b) Dr. Munkley’s Response and the Motion Judge’s Reliance on it 37 In an attempt to respond to Dr. Shilling’s opinion, the defendants filed Dr. Munkley’s supplementary report. In that report Dr. Munkley said that Mrs. Chasczewski’s condition was not treatable, and that even if she had been given a cardiac pacemaker or a drug intravenously, her chances of survival were “very slim.” In giving this opinion, he relied on a New England Journal of Medicine article, which put the survival rate at 2.4 per cent. The critical part of Dr. Munkley’s opinion, which the motion judge relied on, is as follows: Complete heart block in the setting of prehospital cardiac arrest or prearrest as treated by paramedics outside of hospital has been well researched. Unfortunately, it is not extremely treatable. The survival rate in Ontario for this condition when treated by “Advanced Care Paramedics” using IV medications and external cardiac pacing was 216 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

found to be only 2.4% (New England Journal of Medicine 351; 7 August 2004). The paramedics treating Mrs. Chasczewski on Decem- ber 22nd, 1996 were not trained in these skills and practiced as “Pri- mary Care Paramedics”. Even if they had been able to apply external pacing the chance of survival of Mrs. Chasczewski was very slim. [Emphasis in original.] 38 The motion judge held that the plaintiffs’ failure to respond to “Dr. Munkley’s causation opinion of a survival rate of 2.4 per cent” was a “glaring admission” and fatal to their claim: It is a glaring omission on the part of the plaintiffs that they have not addressed the opinion of Dr. Munkley as expressed in his affidavit on August 24, 2010, to the effect that the survival rate in the Province of Ontario, for someone presenting with Mrs. Chasczewski’s condition was 2.4 percent. This omission is particularly troubling given the fact that Dr. Munkley in his affidavit, specifically responded to the opinions of Dr. Shilling and Mr. Stadthagen. In my opinion there was a heavy onus on the part of the plaintiffs to respond to Dr. Munkley’s opinion. This is especially so, given the fact that Dr. Shilling, in his report of June 10, 2004, specifically addressed the issue of causation as it related to the timelines in this matter. The failure to respond to Dr. Munkley’s causation opinion of a survival rate of 2.4 percent is, in my opinion, determinative of this motion. While I accept that the plaintiffs and their counsel may have experienced delays in responding to the defendants’ motion, there can be no doubt that the affidavit of Dr. Munkley was in the possession of plaintiffs’ counsel, and could, and should have been responded to, particularly as it relates to the causation issue. I infer from the fact that Dr. Shilling does not respond to Dr. Munkley’s causation opinion that Dr. Shilling can offer no expert evidence to contradict Dr. Munkley’s opinion: at para. 17.

(c) The Motion Judge’s Error 39 There are two reasons why it was an error for the motion judge to dismiss the plaintiffs’ claim on the basis that they did not respond to Dr. Munkley’s opinion. 40 The main reason is that Dr. Munkley’s opinion does not address the plaintiffs’ theory of the case. Dr. Munkley’s opinion of a 2.4 per cent survival rate rests on two important assumptions: • The patient suffered a cardiac arrest or a precardiac arrest (which Dr. Munkley did not define but I take it to mean the absence of a heart beat) outside of the hospital. Chasczewski Estate v. 528089 Ontario Inc. John Laskin J.A. 217

• An external pacemaker or Atropine was administered by paramedics after the patient went into cardiac or pre-cardiac arrest. 42 The plaintiffs’ theory on causation does not rest on either of these assumptions. Rather, the plaintiffs’ theory assumes that the defendants failed to comply with the standard of care as set out in Mr. Stadthagen’s opinion. It assumes that but for that failure, Mrs. Chasczewski would have been immediately transferred to the hospital emergency department after the paramedics arrived at her residence, and therefore that she would not have suffered a cardiac or pre-cardiac arrest outside of the hospital. She would have been treated at the hospital with an external pacemaker and or Atropine, and likely would have survived. Indeed, on the plaintiffs’ theory, Mrs. Chasczewski would not even have been in the cohort studied in the New England Journal of Medicine article that yielded the figure of a 2.4 per cent survival rate. 43 More significant, Dr. Munkley’s opinion does not give effect to the 10 minute window of opportunity on which Dr. Shilling relied. Webster and Werner arrived at the Chasczewski residence at 12:55:48; Mrs. Chasczewski had a heart beat until approximately 13:07 at which time she was presumably in pre-cardiac arrest; she went into cardiac arrest at 13:11. In Dr. Shilling’s opinion if she had been treated before 13:07, that is before she went in to pre-cardiac or cardiac arrest, she likely would have survived. 44 Dr. Shilling’s opinion does not rest on advanced care treatment by the paramedics, only that Mrs. Chasczewski be given advanced care treatment before 13:07. If effect is given to Mr. Stadthagen’s opinion on the standard of care, Mrs. Chasczewski should have been at the emergency department of the Whitby hospital no later than 13:03. Inferentially, once there, she could have been given advanced care treatment — either an external pacemaker or Atropine — in a hospital setting, by a doctor — before 13:07. 45 Thus, Dr. Munkley’s opinion, and his reliance on a 2.4 per cent survival rate, does not respond at all to the plaintiffs’ theory of the case. Indeed, Dr. Munkley did not give any opinion on Mrs. Chasczewski’s chance of survival if she had arrived at the hospital with a heartbeat. And he gave no opinion on her probability of survival had the cardiac arrest occurred at the hospital. 46 There is a second reason why the motion judge ought not to have accepted Dr. Munkley’s opinion as determinative of the motion. Dr. 218 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Munkley’s opinion was based on a statistic from a study reported in an article in a scholarly journal. Dr. Munkley did not even append the article to his affidavit, and therefore we do not know the details of the parame- ters or assumptions underlying the study. Denying the plaintiffs their day in court on the basis of a statistic in a single study, which is not even in the record, is unsatisfactory. 47 Moreover, the courts have cautioned against the use of statistics to decide causation in a given case. Gonthier J. expressed this caution in Laferri`ere c. Lawson, [1991] 1 S.C.R. 541 (S.C.C.), at pp. 606-607, where he noted the difference between scientific and legal standards of proof and emphasized that legal causation need not be determined by scientific precision. A judge’s duty is to assess the evidence of causation on the whole, “not to remain paralysed by statistical abstraction.” The motion judge’s reliance on the statistic used by Dr. Munkley is precisely the type of fixation the court warned against. 48 Causation is a very difficult issue in this case. It is, as I have said, an issue where minutes, even seconds, may have mattered. The expert evidence on the issue was conflicting; the evidence on the timing of key events was unclear; and the evidence of key witnesses was absent. On the record before him, the motion judge could not have had a full appreciation of the issue of causation. Causation is a genuine issue requiring a trial. I would therefore set aside the summary judgment granted by the motion judge and dismiss the defendants’ motion. Both the standard of care and causation are genuine issues requiring a trial.

E. Conclusion 49 This is an old case. Mrs. Chasczewski died over 15 years ago. Shortly after her death, Mrs. Chasczewski’s family filed a complaint about the treatment she received both with the Ministry of Health and the Coro- ner’s Office. The Ministry and the Coroner investigated the complaint, and each concluded that the care Mrs. Chasczewski received was appropriate. 50 Nonetheless, the Chasczewski family is entitled to a trial of their allegations against the defendants. The evidence bearing on both the issues of the standard of care and causation cannot be fully appreciated on the record before the motion judge. I would allow the appeal, set aside the summary judgment granted by the motion judge and substitute an order dismissing the defendants’ motion for summary judgment. The parties Chasczewski Estate v. 528089 Ontario Inc. E.A. Cronk J.A. 219 may make brief submissions in writing on the costs of the appeal and the motion within two weeks of the release of the court’s reasons.

Dennis O’Connor A.C.J.O.:

I agree

E.A. Cronk J.A.:

I agree Appeal allowed. 220 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

[Indexed as: Reid v. Maloney] Marlene Reid (Plaintiff) and Kevin Maloney (Defendant) Alberta Court of Queen’s Bench Docket: Edmonton 0203-02967 2010 ABQB 794 D.C. Read J. Heard: June 14-30, 2010 Judgment: December 14, 2010* Health law –––– Provincial matters — Regulation of health professionals — Chiropractors — Negligence –––– Plaintiff hurt her back playing with her grandchild — She had two prior low back surgeries — Plaintiff had three treatments for low back pain by defendant chiropractor M, who used spinal manipulative therapy (“SMT”) — Her back became significantly worse after second treatment and after third treatment, her pain level surged — Plaintiff was diagnosed with acute L4-5 disc protrusion for which she underwent two surgeries — Plaintiff brought action in negligence against M — Action allowed — M owed duty of care to plaintiff as his patient — Chiropractic manipulation of type undertaken by M posed real risks for someone like plaintiff, who had prior back surgeries — M failed to obtain plaintiff’s informed consent by failing to advise her sufficiently of treatment he proposed, and by failing to advise her of risks of that treatment — In failing to inform her of those risks, M breached standard of care of chiropractor and failed to obtain her informed consent — M was not aware of how vulnerable plaintiff was to spinal manipulation in area of her prior surgery, and should have obtained more information before commencing treatment — M was negligent in not obtaining further information to enable him to rule out discal involvement or to determine general health of plaintiff’s spine — This disabled him from properly evaluating risk of treating plaintiff, such that it was negligent for him to begin treatment when he did — On balance of probabilities, M’s second manipulation of plaintiff’s back caused or substantially contributed to her injury and but for that manipulation, injury she sustained when she caught her grandson would have subsided — M’s second manipulation caused sequestration of plaintiff’s disc and resulted in her having to undergo back surgery.

*Affirmed at Reid v. Maloney (2011), 2011 ABCA 355, 2011 CarswellAlta 2058, 89 C.C.L.T. (3d) 197, 56 Alta. L.R. (5th) 65, 515 A.R. 361, 532 W.A.C. 361 (Alta. C.A.). Reid v. Maloney 221

Health law –––– Malpractice — Negligence — Standard of care — Miscella- neous –––– Plaintiff hurt her back playing with her grandchild — She had two prior low back surgeries — Plaintiff had three treatments for low back pain by defendant chiropractor M, who used spinal manipulative therapy (“SMT”) — Her back became significantly worse after second treatment and after third treatment, her pain level surged — Plaintiff was diagnosed with acute L4-5 disc protrusion for which she underwent two surgeries — Plaintiff brought action in negligence against M — Action allowed — M owed duty of care to plaintiff as his patient — Chiropractic manipulation of type undertaken by M posed real risks for someone like plaintiff, who had prior back surgeries — M failed to obtain plaintiff’s informed consent by failing to advise her sufficiently of treatment he proposed, and by failing to advise her of risks of that treatment — By not explaining what he was going to do and that there was some risk of disc herniation, M failed to disclose sufficient information to allow plaintiff to make informed decision as to whether to consent to SMT — M breached standard of care of chiropractor by failing to inform plaintiff of risk and possible serious consequences of chiropractic manipulation of type undertaken, and by failing to making proper diagnosis before beginning treatment — Further, based on her evidence, plaintiff would not have consented to treatment had she been adequately informed of risks — M was not aware of how vulnerable plaintiff was to spinal manipulation in area of her previous surgery, and should have obtained more information before commencing treatment — Instead, M manipulated same area of plaintiff’s spine next day — On balance of probabilities, M’s second manipulation of plaintiff’s back caused or substantially contributed to her injury and resulted in her having to undergo back surgery. Health law –––– Malpractice — Consent — Informed — Miscellaneous –––– Plaintiff hurt her back playing with her grandchild — She had two prior low back surgeries — Plaintiff had three treatments for low back pain by defendant chiropractor M, who used spinal manipulative therapy (“SMT”) — Her back became significantly worse after second treatment and after third treatment, her pain level surged — Plaintiff was diagnosed with acute L4-5 disc protrusion for which she underwent two surgeries — Plaintiff brought action in negligence against M, alleging that he failed to obtain her informed consent to treatment — Action allowed — Plaintiff signed standard consent form in waiting room before seeing M, who had no independent memory of plaintiff’s first two appointments but gave evidence as to his standard practice — Medical practitioner, including chiropractor, cannot fulfil duty to obtain informed consent from patient simply by having patient sign document — Chiropractic manipulation of type undertaken by M posed real risks for someone like plaintiff, who had prior back surgeries — M gave plaintiff only very brief and general explanation of treatment he proposed, and did not explain its potential risks or possible alternatives — Plaintiff had no knowledge of risk and that there were possible serious consequences — M breached standard of care of chiropractor by failing to inform 222 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d) plaintiff of risk and possible serious consequences of chiropractic manipulation of type undertaken, and by failing to making proper diagnosis before beginning treatment — Reasonable person in plaintiff’s circumstances would not have consented to or undergone chiropractic treatment had she been properly informed of risk — By not explaining what he was going to do and that there was some risk of disc herniation, M failed to disclose sufficient information to allow plaintiff to make informed decision as to whether to consent to SMT — In failing to inform her of those risks, M breached standard of care and failed to obtain her informed consent — Further, based on her evidence, plaintiff would not have consented to treatment had she been adequately informed of risks. Health law –––– Malpractice — Negligence — Causation –––– Plaintiff hurt her back playing with her grandchild — She had two prior low back surgeries — Plaintiff had three treatments for low back pain by defendant chiropractor M, who used spinal manipulative therapy (“SMT”) — Her back became significantly worse after second treatment and after third treatment, her pain level surged — Plaintiff was diagnosed with acute L4-5 disc protrusion for which she underwent two surgeries — Plaintiff brought action in negligence against defendant, alleging that his treatment caused or contributed to her back injury — Ac- tion allowed — Plaintiff was vulnerable to disc injury because of her history of degenerative disc disease, two prior surgeries, and fact that she smoked — Ma- nipulations undertaken when plaintiff first saw M were designed to and did put pressure on her spine, particularly on vulnerable L4- S1 area where she had prior surgery — On balance of probabilities, M’s second manipulation of plaintiff’s back caused or substantially contributed to L4-5 disc extrusion and resulted in her having to undergo further back surgery — But for second treatment, back injury plaintiff suffered when she lifted her grandson would likely have improved on its own — At most, third treatment exacerbated already existing extruded disc — While M’s initial diagnosis was not negligent, he was negligent in not attempting to obtain further information to enable him to rule out discal involvement or to determine general health of plaintiff’s spine — This lack of information disabled him from properly evaluating risk of treating plaintiff, such that it was negligent for him to begin treatment when he did — On balance of probabilities, M’s second manipulation of plaintiff’s back caused or substantially contributed to her injury and resulted in her having to undergo back surgery. Health law –––– Malpractice — Negligence — Types of malpractice — Fail- ure to diagnose –––– Plaintiff hurt her back playing with her grandchild — She had two prior low back surgeries — Plaintiff had three treatments for low back pain by defendant chiropractor M, who used spinal manipulative therapy (“SMT”) — Her back became significantly worse after second treatment and after third treatment, her pain level surged — Plaintiff was diagnosed with acute L4-5 disc protrusion for which she underwent two surgeries — Plaintiff brought Reid v. Maloney 223

action in negligence against M, alleging that he failed to properly diagnose her before beginning treatment by failing to take adequate history and to do adequate testing — Action allowed — Based on all of evidence, M could not faulted for his provisional diagnosis that plaintiff was suffering from lumbar sprain/strain, and his opinion that SMT was not contraindicated despite plaintiff’s prior surgery at site — He exercised requisite reasonable care, skill and judgment in coming to his diagnosis and was not negligent — Where chiropractor intends to treat patient using SMT, and patient has history of discal back surgery, there is duty to rule out disc problems as reason for presenting symptoms before beginning anything but conservative palliative treatment — M’s initial diagnosis of lumbar sprain/strain was not negligent, but he was negligent in not attempting to obtain further information to enable him to rule out discal involvement or to determine general health of plaintiff’s spine — This lack of information disabled him from properly evaluating risk of treating plaintiff, such that it was negligent for him to begin treatment when he did — M did not exercise reasonable care, skill and judgment in considering differential diagnosis and in attempting to rule it out — He also did not exercise reasonable care, skill and judgment in determining and evaluating risks that treating someone with history of degenerative disc disease and osteoarthritis would present — M breached standard of care of chiropractor by failing to making proper diagnosis before beginning treatment. Cases considered by D.C. Read J.: Aristorenas v. Comcare Health Services (2006), 2006 CarswellOnt 6155, 216 O.A.C. 161, 274 D.L.R. (4th) 304, 83 O.R. (3d) 282, 42 C.C.L.T. (3d) 220, [2006] O.J. No. 4039 (Ont. C.A.) — considered Arndt v. Smith (1997), [1997] 2 S.C.R. 539, 35 C.C.L.T. (2d) 233, 1997 Car- swellBC 1260, 1997 CarswellBC 1261, 148 D.L.R. (4th) 48, 213 N.R. 243, 92 B.C.A.C. 185, 150 W.A.C. 185, 35 B.C.L.R. (3d) 187, [1997] 8 W.W.R. 303, [1997] S.C.J. No. 65 (S.C.C.) — followed Athey v. Leonati (1996), [1997] 1 W.W.R. 97, 140 D.L.R. (4th) 235, 81 B.C.A.C. 243, 132 W.A.C. 243, 203 N.R. 36, [1996] 3 S.C.R. 458, 31 C.C.L.T. (2d) 113, 1996 CarswellBC 2295, 1996 CarswellBC 2296, [1996] S.C.J. No. 102 (S.C.C.) — followed Byciuk v. Hollingsworth (2004), 2004 ABQB 370, 2004 CarswellAlta 713, 27 C.C.L.T. (3d) 116, 358 A.R. 312, [2004] A.J. No. 620 (Alta. Q.B.) — referred to Dickson v. Pinder (2010), 2010 CarswellAlta 761, 2010 ABQB 269, [2010] 10 W.W.R. 505, 27 Alta. L.R. (5th) 88, 489 A.R. 54 (Alta. Q.B.) — considered Gibbons v. Harris (1924), [1924] 1 W.W.R. 674, [1924] 1 D.L.R. 923, 1924 CarswellAlta 83, [1924] A.J. No. 49 (Alta. C.A.) — followed Hanke v. Resurfice Corp. (2007), 69 Alta. L.R. (4th) 1, 404 A.R. 333, 394 W.A.C. 333, 2007 CarswellAlta 130, 2007 CarswellAlta 131, 2007 SCC 7, [2007] 4 W.W.R. 1, 45 C.C.L.T. (3d) 1, 278 D.L.R. (4th) 643, [2007] R.R.A. 224 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

1, 357 N.R. 175, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7 (S.C.C.) — followed Kern v. Forest (2010), 2010 CarswellBC 1788, 2010 BCSC 938, 76 C.C.L.T. (3d) 219 (B.C. S.C.) — considered Malinowski v. Schneider (2010), 36 Alta. L.R. (5th) 231, 494 A.R. 201, [2011] 6 W.W.R. 673, 2010 CarswellAlta 2340, 2010 ABQB 734, 79 C.C.L.T. (3d) 36 (Alta. Q.B.) — considered McArdle Estate v. Cox (2003), 2003 CarswellAlta 435, 2003 ABCA 106, 17 C.C.L.T. (3d) 137, 13 Alta. L.R. (4th) 19, [2003] 6 W.W.R. 264, 327 A.R. 129, 296 W.A.C. 129, [2003] A.J. No. 389 (Alta. C.A.) — followed Mustapha v. Culligan of Canada Ltd. (2008), 55 C.C.L.T. (3d) 36, 375 N.R. 81, 293 D.L.R. (4th) 29, [2008] 2 S.C.R. 114, 2008 CarswellOnt 2824, 2008 CarswellOnt 2825, 2008 SCC 27, 238 O.A.C. 130, 92 O.R. (3d) 799 (note), [2008] S.C.J. No. 27 (S.C.C.) — followed Olsen v. Jones (2009), 2009 CarswellAlta 1107, 2009 ABQB 371, 68 C.C.L.T. (3d) 101, 11 Alta. L.R. (5th) 203, [2009] A.J. No. 774 (Alta. Q.B.) — followed Rose v. Dujon (1990), 1990 CarswellAlta 464, 108 A.R. 352, [1990] A.J. No. 844 (Alta. Q.B.) — considered Snell v. Farrell (1990), 110 N.R. 200, 1990 CarswellNB 218, 1990 CarswellNB 82, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289, 107 N.B.R. (2d) 94, 267 A.P.R. 94, 4 C.C.L.T. (2d) 229, (sub nom. Farrell c. Snell) [1990] R.R.A. 660, EYB 1990-67315, [1990] S.C.J. No. 73 (S.C.C.) — followed Waap v. Alberta (2008), 95 Alta. L.R. (4th) 167, 2008 ABQB 544, 2008 CarswellAlta 1237, 60 C.C.L.T. (3d) 117, (sub nom. Waap v. Alberta (Pre- mier)) 297 D.L.R. (4th) 223, [2009] 1 W.W.R. 722 (Alta. Q.B.) — followed Words and phrases considered: informed consent Informed consent is not simply a piece of paper. It is a process or dialogue between patient and [medical practitioner]. nucleus pulposus An intervertebral disc is comprised of three distinct parts, two of which are. . .the nucleus pulposus (“nucleus”) and the annulus fibrosus (“annulus”). The nucleus is a centrally located area in the disc and is composed of a very loose and translucent network of fine fibrous strands.. . .The annulus is at the periphery of the nucleus and forms the outer boundary of the disc. Reid v. Maloney D.C. Read J. 225

causation Factual causation addresses cause and effect between the breaches of care and [the plaintiff’s] injuries. Legal cause, sometimes referred to as proximate cause, addresses the foreseeability of the injuries.

ACTION in negligence against chiropractor.

Patrick D. Kirwin, for Plaintiff Karin E. Buss, Richard Secord, for Defendant

D.C. Read J.: Background Facts: 1 On about February 15, 2000, 48 year old Marlene Reid was playing with her then less than two year old grandson, who weighed 23 pounds. After he jumped into her arms from one of the steps on a stairway, Mrs. Reid turned and felt a pain in her left buttock or hip. Mrs. Reid had suffered from similar pains in the past and had dealt with them by obtaining treatment from her physiotherapist who treated pain with heat and what Mrs. Reid called “pushing in the buttock area to loosen” it. Mrs. Reid was not certain of the date of the incident with her grandson but both counsel agreed that it likely occurred about February 15, 2000. 2 Mrs. Reid was no stranger to back problems and had a long history of them stretching back into the 1980s. By 2000, she had undergone two previous lower back surgeries, one of which occurred when she was only 27 years old. The evidence provided respecting her previous surgeries was sparse but it appears she underwent surgery in both 1984 and in 1988. Dr. Narang operated on her for a herniated L4-L5 disc in 1984. Dr. Glasgow operated in 1988 to relieve spinal stenosis due to a sequestrated intervertebral disc at L5-S1 on the left. As already indicated, she also had a history of episodic lower back pain since the earlier surgeries. 3 After the incident with her grandson, Mrs. Reid, who worked full time as an insurance agent, was unable to see her regular physiotherapist because things were busy at her office. She found it impossible to make an appointment with the physiotherapist at a convenient time and so went to massage therapy instead. The massage therapy records indicate that Mrs. Reid’s first treatment occurred on February 18, 2000. Mrs. Reid felt that massage alleviated the pain somewhat but it was still there. 4 Although she continued to have pain, Mrs. Reid’s evidence was that she continued to function. She continued to work full time in the insur- 226 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

ance agency, wore her regular high heeled shoes, and continued to par- ticipate in all of her other regular daily activities. She did not recall that the pain got any worse during the period between about February 15, 2000, when she caught her grandson and March 9, 2000, when she first saw the defendant chiropractor, Dr. Kevin Maloney or that it moved around at all. Nor did she recall any other event during this period that could have exacerbated her back problem. 5 However, because her symptoms persisted, Mrs. Reid took the advice of a friend at work who suggested that she see a chiropractor and who suggested, particularly, Dr. Maloney, whom the friend said was the son of her own chiropractor. Dr. Maloney practiced in St. Albert where Mrs. Reid lived and worked. 6 Mrs. Reid decided to take this advice even though she had never before sought treatment from a chiropractor. She obtained an appointment and saw Dr. Maloney for the first time on Thursday, March 9, 2000. She saw him again the next day and on a third occasion on the following Monday, March 13, 2000. 7 Dr. Maloney is a 1997 graduate of the Palmer School of Chiropractic in San Jose, California, a school often referred to as Palmer West during the trial. He wrote and passed the Canadian Board of Chiropractors examinations and the Alberta provincial clinical examinations in 1997 and has been a licensed chiropractor since November 13, 1997. After gradu- ating, Dr. Maloney set up practice as a sole practitioner in St. Albert, and had been in practice for over two years when he first saw Mrs. Reid as a patient. He estimated that about 35% of his patients suffered from symptoms of low back pain. 8 Dr. Maloney treated Mrs. Reid on all three of her visits to him. On at least the first two visits, Dr. Maloney employed spinal manipulative therapy (“SMT”) in his treatment of Mrs. Reid. Mrs. Reid thought her back felt better after the first visit but after the second, she felt much worse. Her pain had both intensified and moved from being mainly left sided to involving her right side as well. In addition, she experienced sensory changes in her leg and felt that she could not walk properly. Although she had made an appointment for later on Monday, March 13, her symptoms were so intense during the weekend of March 11-12 that she went back to see Dr. Maloney first thing Monday morning. On this visit, she was accompanied by her husband Dan Reid. By the end of the third visit, Mrs. Reid felt even worse. She was not treated again by Dr. Maloney. Reid v. Maloney D.C. Read J. 227

9 Dr. Maloney was concerned about Mrs. Reid’s condition when he saw her on the morning of March 13 and, after treating her, advised her to go to the emergency department of the local hospital. However, Mrs. Reid was worried she would have to wait a long time if she went to the hospital and elected, instead, to go directly to the office of her family physician, Dr. Gray. Dr. Maloney wrote a letter to Dr. Gray, providing some information to him about Mrs. Reid’s then condition, the history, and what his concerns were, and Mrs. Reid took this letter when she went to Dr. Gray’s office directly from Dr. Maloney’s. Her husband accompanied her and did the driving. 10 Dr. Gray’s chart indicates that Mrs. Reid was in great pain and very fearful when she came to his office on March 13. He prescribed analgesics and he, too, suggested she go to the hospital emergency department. The next day she did. For the next two months, she remained very symptomatic and was able to do very little. Her memory about this time period is compromised because she was taking strong opiate based analgesics. It is clear from the medical evidence, however, that she sought and obtained medical help from various other medical practitioners. 11 Mrs. Reid’s husband, Dan Reid sought an explanation from Dr. Malo- ney respecting what had happened. Dr. Maloney wrote a letter to Mr. and Mrs. Reid, dated March 24, 2000, in response to this request. This letter was made an exhibit at trial. 12 Eventually, after obtaining an MRI, she was diagnosed with an acute L4-5 disc protrusion and had surgery on April 10, 2000. The extrusion was described as large in the operative notes. She had further surgery on the same area of her back on September 28, 2000 when two disc frag- ments were removed as well as scar tissue. After her surgeries, Mrs. Reid had a long recovery period but she is now substantially better. 13 Mrs. Reid sued Dr. Maloney claiming that his treatment had caused or contributed to her back injury and alleging that he had failed to properly diagnose her, failed to obtain her consent to treatment and failed properly to treat her. Dr. Maloney denied that his treatment of Mrs. Reid had caused or contributed to her injuries and said that he had met the standard of care required for chiropractors in his diagnosis and treatment of Mrs. Reid and in obtaining her consent to this treatment.

Issues: 14 There are five issues for resolution in this decision: 228 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

1. Does Dr. Maloney owe Mrs. Reid a duty of care? 2. What is the standard of care of a chiropractor? 3. Did Dr. Maloney meet the standard of care by obtaining Mrs. Reid’s informed consent before treating her? 4. Did Dr. Maloney otherwise meet the standard of care? 5. Was Dr. Maloney’s treatment of Mrs. Reid the actual and legal cause of her injuries? 15 The onus is on Mrs. Reid to prove all elements of each issue on a balance of probabilities: Picard & Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson, 2007) at 212 (“Pic- ard & Robertson”); Waap v. Alberta, 2008 ABQB 544 (Alta. Q.B.), at paras. 29-30. 16 Standard of care issues must be addressed before dealing with causation: McArdle Estate v. Cox, 2003 ABCA 106 (Alta. C.A.), at para. 25.

Discussion: 1. Duty of Care Owed by a Chiropractor to his Patient: 17 The first question to be considered in any action for negligence is whether the defendant owed a duty of care to the plaintiff. However, in the case of the relationship between a health care professional and a patient, innumerable courts have already recognized that this relationship gives rise to a duty of care. Consequently, precedent has already established that Dr. Maloney owed a duty of care to Mrs. Reid as his patient and it is unnecessary to undertake a full fledged duty of care analysis: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (S.C.C.). Dr. Malo- ney owed a duty of care to Mrs. Reid as his patient.

2. The Standard of Care of a Chiropractor: 18 Courts have held that chiropractors are to be treated like other medical practitioners and the principles that relate to medical professionals other than chiropractors apply to chiropractors as well. A recent decision of this Court clearly articulated the standard of care with particular reference to chiropractors. In Olsen v. Jones, 2009 ABQB 371 (Alta. Q.B.), para. 10, Crighton, J. described the standard of care that a chiropractor must meet as, “the degree of care, diligence, judgment and skill which is exercised by a normal, prudent or reasonable chiropractor under like or similar circumstances and with the same experience and training”. This Reid v. Maloney D.C. Read J. 229

definition was quoted with approval by Yamauchi, J. in Dickson v. Pinder, 2010 ABQB 269 (Alta. Q.B.). It provides a clear and concise definition of what standard Dr. Maloney had to meet in his treatment of Mrs. Reid. 19 Mrs. Reid alleges that Dr. Maloney failed to meet the standard of care in two major areas: failure to properly inform Mrs. Reid of what treatment he planned to give her and to disclose to her the inherent risks of treatment or obtain Mrs. Reid’s consent to treatment, and failure to take an adequate history and to do adequate testing. He therefore did not properly diagnose her condition before commencing treatment. 20 I will examine each of these in the order that I have set them out above. In both, Mrs. Reid bears the burden of proving, on a balance of probabilities, that Dr. Maloney breached the requisite standard of care.

3. Did Dr. Maloney obtain Mrs. Reid’s Informed Consent to Treatment? Evidence respecting informed consent: 21 On behalf of Mrs. Reid, it was argued that Dr. Maloney failed in his duty to obtain Mrs. Reid’s informed consent in three main areas. He failed to advise her sufficiently of the treatment he proposed for what he had diagnosed; he failed to advise her of the risks of this treatment; and he failed to advise her of possible alternative treatments. 22 Both parties agreed that when Mrs. Reid first saw Dr. Maloney, she had low back pain and pain radiating into her left leg.

Evidence of Mrs. Reid: 23 Mrs. Reid’s evidence was that before she saw Dr. Maloney for the first time on March 9, 2000, his receptionist, Ren´ee Cottingham handed her a document called Informed Consent to Chiropractic Adjustments and Care (the “Consent Form”) together with a one page form requesting certain information respecting her medical history (“patient history check list”). This occurred while Mrs. Reid was still in the reception area. The Consent Form read as follows: I hereby request and consent to the performance of chiropractic adjustments and other chiropractic procedures, including various modes of physical therapy and, if necessary, diagnostic x-rays, on me by the doctor of chiropractic named below and/or anyone working in this clinic authorized by the doctor of chiropractic named below. 230 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

I have had an opportunity to discuss with the doctor of chiropractic named below and/or with other office or clinic personnel, the nature and purpose of chiropractic adjustments and other procedures. I understand that results are not guaranteed. I further understand and am informed that, as in all health care, in the practice of chiropractic there are some very slight risks to treatment, including, but not limited to, muscle strains and sprains, disc injuries, and strokes. I do not expect the doctor to be able to anticipate and explain all risks and complications and I wish to rely on the doctor to exercise judgment during the course of the procedure which the doctor feels at the time, based upon the facts then known, is in my best interests. I have read the above consent. I have also had an opportunity to ask questions about its content, and by signing below I agree to the above mentioned chiropractic procedures. I intend this consent form to cover the entire course of treatment for my present condition. 24 Mrs. Reid did not recall discussing either the Consent Form or the patient history checklist with Mrs. Cottingham and simply signed the Consent Form in the reception area. Mrs. Reid also said she also asked no questions about this form when she later saw Dr. Maloney and no explanation was offered by Dr. Maloney. 25 Mrs. Reid did agree that, following his examination of her, Dr. Malo- ney told her he diagnosed her as suffering from a “sprained/strain” back injury. She says she assumed, but was not told, that this injury was in the same general area of her back that had been causing her pain. She said, as well, that Dr. Maloney told her this was caused by a muscle pinching a nerve. She does not recall his saying anything about the possibility of a disc problem or a spinal problem or any discussion about alternative possible problems. She also does not recall that Dr. Maloney discussed with her the option of simply doing nothing or any alternatives other than chiropractic manipulation. 26 Mrs. Reid recalled that Dr. Maloney also told her that the muscles in her lower back were extremely tired and he was going to pump her hips to loosen them. Mrs. Reid said, too, that Dr. Maloney asked about x-rays that had been taken at the Grandin Medical Clinic on March 7, 2000 but knew she did not have the results as yet. He told her that he was going to do the pumping to loosen the lower back and lessen her discomfort while waiting for the x-rays. She did not recall that he said anything about putting pressure on her spine. She said that if he had mentioned putting pressure on her spine, she would have questioned that. She would have asked Reid v. Maloney D.C. Read J. 231

him, “I’ve had two surgeries is this a good thing to do?”. In cross examination, however, she agreed when it was put to her that Dr. Maloney had told her what adjustments he intended to do in order to try to correct the problem he had diagnosed and the purpose of these adjustments. 27 On March 10, according to Mrs. Reid, Dr. Maloney was running late. He was about 20 minutes late for her appointment and told her when he saw her that he was already late for a hockey game, explaining he was the chiropractor for the local hockey team. To Mrs. Reid, Dr. Maloney seemed like a busy man. She did not discuss with him any new symptoms she was having and Dr. Maloney did not suggest he was going to try any other treatment. She says he told her that she had a bit of arthritis but that this was not uncommon for people of her age. She said then he told her he was going to do the same thing he had the previous day but after beginning the treatment he told her that he would use more force than he had the previous day. She agreed that she told him that this would not be a problem. 28 She said that when Dr. Maloney did the more forceful push, there was an instant burning pain in her back and she felt like the air was pushed out of her lungs. She said she gasped and her head ‘snapped’ back to look at him. She said she asked what happened and Dr. Maloney told her that he had cracked her lower back. She said that Dr. Maloney then told her that the back had to reposition itself and she would feel some discomfort. Her evidence was that there had been no discussion prior to this about repositioning her back. She said that Dr. Maloney gave her his business card and wrote his home telephone on the back of it. He told her to continue to ice her back and to call him if necessary. She said he then left while she was still on the chiropractic table. 29 She said she felt different than she had before the treatment. Her back, hips and legs felt weak and her legs and right hip hurt. The burning sensation remained in her back. She said she got off the table herself, got dressed and ‘waddled’ out to her car because of the pain and weakness she felt. 30 On her third visit, Mrs. Reid did not recall that Dr. Maloney did any further tests or provided any further information to her before telling her that he was going to reposition her back. She did not recall that he said anything about her spine or that he said anything else about the treatment he was going to do. There was no suggestion of alternative treatments or of the risks of treatment. She said if he had given her any indication that anything further would happen or she could have further pain as a result, 232 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

she would not have agreed to further treatment. She said that he treated her with wedge shaped blocks under her hips and pushed on her hips and recalled that the examination table she was lying on dropped suddenly when he pushed. She also recalled being briefly treated with a machine called the spinolator. After these treatments, Mrs. Reid said her pain was greatly increased. She described it as measuring 5 on a 10 point scale when she arrived and as being 10 out of 10 after the treatment. 31 Her husband Dan Reid, who was with her at the third visit, also did not recall that Dr. Maloney explained what he was going to do before doing it. Notwithstanding extensive cross examination, Mr. Reid would not agree that Dr. Maloney examined Mrs. Reid or did any testing of Mrs. Reid before beginning the treatment. Mr. Reid did recall Dr. Malo- ney telling him that he thought Mrs. Reid was going to be fine.

Evidence of Dr. Maloney: 32 Dr. Maloney testified firstly about the professional standards he was governed by. He said that the College of Chiropractors of Alberta (now called the Alberta College and Association of Chiropractors) (the “ACAC”) is the licensing body for chiropractors in Alberta. He said that ACAC periodically issues a publication called the Cornerstone and the spring of 1999 edition set out the ACAC’s recommended policy for obtaining written consent from patients. This policy included a recommended form of consent. 33 The publication was made an exhibit. The applicable portion is as follows: On March 19, 1999 the following policy (“ACAC Consent Policy”) was adopted by Council and will be applicable to all members of the College of Chiropractors of Alberta effective immediately. Description of The Policy Written, informed consent must be obtained from all patients. Premises of the Policy As a matter of ethics and law, in order to obtain valid informed consent there is an obligation, prior to examination and treatment, to disclose any potential risk to the patient. The legal duty has been established by case law and, in some provinces by legislation. ... Reid v. Maloney D.C. Read J. 233

Alberta’s chiropractors are current- ly utilizing written informed consent on a voluntary basis. Policy 1. Members will obtain from every patient..written Informed Consent before commencing any examination, diagnostic procedure or treatment. 2. The Informed Consent must disclose, to the patient.., the nature of the proposed treatment or procedure and any potential risks including those that may be of a special or unusual nature. 3. Chiropractors must provide patients the opportunity to ask questions concerning the risks involved and should answer those questions to the patient’s satisfaction. 4. In view that the best record of consent is one that is objectively documented, Informed Consent must be given in writing. [emphasis in the original] Once written In- formed Consent has been obtained, permission for future treatments is also granted. However there is a continuing obligation to keep patients informed and to advise them of any new or changed material risk. Legislative Context Code of Conduct 19(1) The Code of Ethics of the Canadian Chiropractic Association, as amended from time to time, is applicable to chiropractors in Al- berta. Canadian Chiropractic Associa- tion Code of Ethics 234 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

31 The chiropractor will respect this Code of Ethics, the Clinical Guidelines for the Practice of Chi- ropractors in Canada... Clinical Guidelines for Chiro- practic Practice in Canada 1.1 Chiropractors must disclose to the patient..,the nature of the proposed treatment or procedure and any material risks including those that may be of a special or unusual nature. 1.5 Consent may be given orally or in writing. Summary and Conclusion The policy.. [is]..based on increased recognition by society, and in the law, that patients have the right to know about risks and their health care options before consenting to examination or treatment. At Coun- cil’s request;[sic] attached is a sam- ple of an informed consent release... The development and implementa- tion of this policy is offered in the spirit of assisting members in meeting reasonable expectations of informed decision making on the part of the public. 34 The Consent Form completed by Mrs. Reid is identical to the form recommended for use by the ACAC and attached to the ACAC Consent Policy and was the standard consent form used in his office when Mrs. Reid was Dr. Maloney’s patient. 35 Dr. Maloney said that he considered it a requirement of the ACAC that a written consent be obtained from the patient and that, while he instructed Mrs. Cottingham not to insist that a reluctant patient sign the written consent before he had seen the patient, if after discussion with him about any concerns, a patient still refused to sign the consent, he would discharge the patient without treatment. Reid v. Maloney D.C. Read J. 235

36 Dr. Maloney had no independent memory of Mrs. Reid’s first appointment with him on March 9, 2000 nor of her second appointment on March 10. He gave extensive testimony however, about what his standard practice was in dealing with a new patient. In giving his evidence of standard practice, Dr. Maloney was asked to assume that a patient had attended with complaints of low back and left leg pain, such as Mrs. Reid was suffering from when he first saw her. Dr. Maloney was not asked if his standard practice for new patients suffering from these symptoms was different from his standard practice generally and, if so, in what fashion. 37 According to Dr. Maloney, his standard practice in 2000 was to ask Mrs. Cottingham, his receptionist, to give each new patient the Consent Form together with the patient history checklist; he instructed her to ask the new patient to complete these documents while the patient was still in the waiting area and before seeing Dr. Maloney. His standing instructions for Mrs. Cottingham were to provide the form of consent to the new patient and ask them to read it through and sign it if they were comfortable doing so. If they were not, she was to tell them they could wait and speak to Dr. Maloney before they signed it. If they did not wish to sign the form in the reception area, Mrs. Cottingham was to put a yellow ‘sticky’ on the form before giving it to Dr. Maloney. That way it would not escape his notice when he saw the patient that they had not yet signed the Consent Form. 38 If the patient was prepared to sign the Consent Form without first speaking to Dr. Maloney, they would return the completed Consent Form and the patient history checklist to Mrs. Cottingham who would open a new patient file. If the patient did not wish to sign the consent, Mrs. Cot- tingham would place the material on the new patient file, flagging the Consent Form as unsigned. Ultimately the patient would be seated in one of the examination rooms and asked to wait for Dr. Maloney. 39 Mrs. Cottingham’s evidence respecting the procedure for having new patients complete the Consent Form was similar. She added, however, that she never pressured a patient to sign the form if they had questions but simply told them they were welcome to speak to Dr. Maloney. 40 On first meeting a new patient, Dr. Maloney said his standard practice, after engaging in a brief general chat, was to ask them what had brought them in to see him that day. He said he would generally allow the patient to be as expansive as they wished to be in responding and that he might ask some questions to try to get them to elaborate. He said his general practice was then to obtain some past general medical history 236 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

followed by a history of their presenting complaint. During this process, he would have in front of him the patient history checklist and used it as a guide to the questions he asked. He said that generally he would ask at some point if the new patient had ever before been to see a chiropractor and that if they said they had not, he might tend to be more descriptive in order to ensure that the patient understood what he was talking about. 41 He said it was further his general practice to discuss the Consent Form with the patient, asking the patient if they understood it or had any questions about it. Although he had no memory of having discussed it with Mrs. Reid, he said that based upon his standard practice, if she had any questions, he would have answered them. 42 His evidence was that it was his standard practice to start examining a patient only once he had completed the patient’s general history and the history of the presenting complaint and was satisfied that he understood the patient’s presenting complaint, and only once he had assured himself that the patient understood the Consent Form they had signed. 43 He described his standard practice respecting the tests he would conduct on a patient presenting with symptoms such as those exhibited by Mrs. Reid on her first visit. After conducting these tests, Dr. Maloney said he would formulate a diagnosis and, if he still was not certain of the diagnosis, would order x-rays or laboratory tests. He said that he would consider ordering x-rays if he was concerned about a disease process such as cancer, a fracture, or about instability in the spine. 44 His evidence was that once he had formulated a diagnosis, his standard practice was to inform the patient of what he thought the problem was and why it was causing them pain, using models of the body or skel- eton and wall charts to illustrate his explanation. 45 If the patient said they understood what he had said about diagnosis, Dr. Maloney said his standard practice would then be to talk about the treatment he was proposing, again using the models and the charts to describe what joints or muscles he would be dealing with. 46 In the case of Mrs. Reid, Dr. Maloney said that he diagnosed her with a lumbar spine strain/sprain, and this was clear from her chart. He pointed to a notation at the upper right-hand corner of the chart: “Lep” or “Lsp” SI. Dr. Maloney’s evidence was that in his shorthand, this meant lumbar spine strain/sprain, sacroiliac. Relying on his standard practice, Dr. Maloney said that he would have told Mrs. Reid what her diagnosis was. Reid v. Maloney D.C. Read J. 237

47 In cross examination, however, Dr. Maloney did not deny that he had told Dr. Court McAuley, the investigator for the College of Chiropractors who investigated the complaint Mrs. Reid made to the College, that he did not record a diagnosis on Mrs. Reid’s chart. 48 Dr. Maloney also pointed out that Mrs. Reid’s chart included a billing statement outlining charges for treatment. It contained the Alberta Health billing code ‘847’ which relates to “sprains and strains of other and unspecified parts of the back”, according to the billing code explanatory key. He said this notation was also his recorded diagnosis. 49 From his review of the chart, Dr. Maloney said based on his diagnosis of Mrs. Reid’s problem, he concluded that a diversified side posture adjustment SMT would be the most effective treatment. Relying upon his standard practice, he said that he would explain the diagnosis to the patient tell them that he was not going to jump right into doing the adjustment but instead, would do what he termed a ‘dry run’ first. He said he would always ask the patient after the ‘dry run’ how it felt and whether they wanted to proceed with the actual treatment. He said 99.9% did. He then described exactly how the patient was positioned for the treatment and the manipulation he performed. He said his standard practice was always to record the treatments that he did. 50 When giving evidence about Mrs. Reid’s first appointment with him, Dr. Maloney said that after he had told Mrs. Reid his diagnosis and explained his proposed treatment, he then would have said something like this: If you’re all right with that, we will try this and see. You know we are not going to fix this in one visit likely but we will try and see how this works. Are you okay with that? I am going to explain as we go along. If there’s any part of it that you’re uncomfortable with then just let me know and there’s other things that we can try. 51 Because he had no memory of this first visit with Marlene Reid, all of this evidence was based upon his standard practice. His assumption was that Mrs. Reid agreed to the SMT treatment because he would not have proceeded had she not. 52 Relying again upon his standard practice, Dr. Maloney said in a second visit with a new patient with lower back pain radiating into the leg, he would begin by asking the patient how they were feeling and if they had any more questions before proceeding. He would also tell them what he proposed to do, even if that was simply to say he was going to do more of the same. 238 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

53 Dr. Maloney’s evidence was that because her chart indicated that Mrs. Reid felt somewhat better after her first adjustment, he did decide that he was going to do more of the same type of treatment on her second visit except that he was going to adjust a few more joints. He said he would have told her this and asked her if she was okay with it and, again, based upon his standard procedure would not have proceeded unless she gave her consent. 54 Dr. Maloney did have some memory of Mrs. Reid’s third visit because it was unusual. He recalled that Mrs. Reid’s husband was with her when she arrived around 9 am on March 13. Based upon his notes, he said, Mrs. Reid reported to him that her condition had changed over the weekend. She reported bilateral leg pain beginning on Saturday. Addi- tionally, according to his chart, Mrs. Reid said that her left side now felt fine but that her right leg felt numb and tingling and she had pain down her posterior lateral thigh into her calf and toes. She had also had increased or severe muscle spasm in her right thigh and calf all weekend, according to his chart notes. He said she told him that her foot and leg strength felt normal and reported the ability to climb stairs in terms of having the strength to do so. However, she also reported that she could not feel the step under her foot. She told him, as well, that she had picked up the lumbo-sacral belt he prescribed and it did decrease the pain. His notes indicated that she also said that the belt felt too tight over the hip. She also told him, according to the chart, that she had been taking Tyle- nol 4 all weekend but it was not helping. Further, according to his notes, she reported difficulty with defecation. Dr. Maloney said these symptoms were a change in clinical presentation and the problem now appeared to be something neurological. 55 This change in presentation caused him to have Mrs. Cottingham place a call to obtain a verbal report of the x-ray taken on March 7. 56 He recalled that Mrs. Reid was in quite severe pain when she arrived for the March 13 visit and had to be helped either by her husband alone or by her husband along with Dr. Maloney into one of the treatment rooms. Dr. Maloney says he thought that he told Mrs. Reid that they were now looking at something that might not be what he originally thought it was and that she would likely have to see somebody else for either a surgical consult or at least further imaging. Dr. Maloney recalls that Mrs. Reid asked him if this problem could be fixed and he replied that he would try a couple of gentle things to try to relax the spasm. Reid v. Maloney D.C. Read J. 239

57 Dr. Maloney recalled, as well, telling Mrs. Reid that he was not going to do the side posture push, but instead to try and relax the muscles he would use some upholstered blocks. He described Mrs. Reid as being almost in a panic state because she was in so much pain and said he assumed that she agreed to this procedure, otherwise he would not have gone ahead with it. 58 Dr. Maloney described the use of wedges on Mrs. Reid, a treatment he described as gentle and designed to take pressure off the sacroiliac joints. He agreed that he might have administered this treatment on a specialized chiropractic table called the Thompson drop table but denied that the drop mechanism on this apparatus had been used to treat Mrs. Reid. 59 Dr. Maloney also used another specialized chiropractic table called a spinolator table in his treatment of Mrs. Reid on March 13. He described this, as well, as a gentle treatment designed to relax Mrs. Reid and relieve her back spasms.

Informed Consent - Expert Evidence: Evidence of Dr. Conway: 60 Dr. Philip Conway was called by the Plaintiff to give expert evidence and was qualified by agreement to give opinion evidence on the degree of care and skill reasonably expected from a normal and prudent chiropractor practicing in Alberta. Dr. Conway holds a Doctor of Chiropractic degree from the Canadian Memorial Chiropractic College in Toronto and is a chiropractor in private practice in Calgary. He has been licensed to practice in Alberta since 1986. 61 In formulating his opinions, Dr. Conway relied on Dr. Maloney’s chart to determine what he had and had not done in the course of his discussions with Mrs. Reid before commencing treatment. 62 It was Dr. Conway’s opinion that when faced with a patient with a history like that of Marlene Reid, a chiropractor must do extensive testing. He said that to meet the standard of care required, a chiropractor must review these test findings with the patient, as well as formulate a diagnosis and discuss this with the patient. In addition he said that a chiropractor must discuss proposed treatment before proceeding. He saw no evidence on Dr. Maloney’s chart of a diagnosis, any review of the test findings with Mrs. Reid or any discussion respecting proposed treatment. 240 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

63 Dr. Conway said it was his practice to explain to a patient exactly what he proposed to do in treating them, using words that anyone could understand. In respect to the SMT manipulation that Dr. Maloney’s chart indicated he administered on March 10, the L4 and L5 lateral process pushes, Dr. Conway said before doing this adjustment, he would explain to a patient that he was going to try to rotate the vertebra back to its position by pushing on it. Dr. Conway said he would never perform this type of procedure on a patient without first explaining it to them in detail so that they could ask any questions they had and express any concerns. He says this type of discussion is also necessary because the chiropractic association tells chiropractors to have these discussions and the College of Chiropractors encourages them to have these discussions: “so [that] everybody understand[s] what’s going on, there’s nothing hidden and there’s no lack of understanding with the patient — so they don’t say he just laid me down and adjusted me. I didn’t know what was going on. It’s a discussion about their health.” 64 Dr. Conway criticized Dr. Maloney’s chart because he said he was unable to determine that he had recorded a diagnosis. In cross examination, it was pointed out to him that the chart also included the billing record which contained the Alberta Health billing code ‘847’ as the diagnosis. Dr. Conway confirmed by reading the codes that this number relates to “sprains and strains of other and unspecified parts of the back”. 65 Dr. Conway was also critical of Dr. Maloney’s chart because he could find no reference to a treatment plan being recorded. He said this did not comply with the standards for chiropractors.

Evidence of Dr. Henderson: 66 Dr. Donald Henderson was called as an expert by the Defendant, and was qualified by agreement to give opinion evidence on the degree of care and skill reasonably expected from a prudent chiropractor practicing in Alberta. 67 Dr. Henderson has a Doctor of Chiropractic degree from the Cana- dian Memorial College of Chiropractic (“CMCC”). He has been licensed as a chiropractor in Ontario since 1975 and is in private practice in To- ronto. He was also an instructor at CMCC for a number of years and was chair of the consensus committee of chiropractors who developed the 1996 Canadian Chiropractic Association Clinical Guidelines for Chiro- practic Practice in Canada (“Glenerin Guidelines”). He also wrote the preface to these Guidelines. Reid v. Maloney D.C. Read J. 241

68 He was asked how a prudent chiropractor in 2000 would go about obtaining informed consent. In his response, Dr. Henderson made specific reference to the Consent Form signed by Mrs. Reid. He said this: It’s just the way it’s outlined here. It would be provided to the patient. In the course of the examination and history, you would be explaining what the patient’s problem is and how you would intend to treat. 69 In Dr. Henderson’s opinion Dr. Maloney did obtain Mrs. Reid’s informed consent by having her sign the form that was given to her in the waiting room. 70 He agreed in cross examination, however, that the statement respecting risks as found in the Consent Form was very general and that before a patient could assess risk, they must know what treatment is proposed. He agreed, as well, that this would particularly be so if that patient was seeing a chiropractor for the first time. He also agreed that before treatment is commenced a chiropractor must provide a patient with a diagnosis and a suggested treatment and that it was also necessary to have a subsequent discussion about risks and benefits and, at least where the patient expresses concern, alternative treatment. He agreed further that one of the options that could or should have been discussed is that of receiving no treatment. He also agreed that the proposed treatment depended on the diagnosis made and the possible risks depended upon the treatment proposed. 71 It was Dr. Henderson’s opinion that Dr. Maloney did correctly diagnose Mrs. Reid at her first visit with lumbar strain, and sacroiliac joint dysfunction. As did Dr. Maloney, Dr. Henderson pointed to the notation in the upper right-hand corner of Mrs. Reid’s chart as the recorded diagnosis. He interpreted Dr. Maloney’s notes in the same way as did Dr. Maloney in his evidence: their meaning was lumbar strain and sacroiliac joint dysfunction. Dr. Henderson pointed out, in addition, that this diagnosis was the same as that made by Dr. Zalesky on March 7 and by Dr. Gray on March 13. It was also Dr. Henderson’s opinion that Dr. Maloney appropriately changed the diagnosis on March 13 to central canal stenosis and L5-S1 disc involvement (bulge). 72 Dr. Henderson was asked about the requirement for recording of a diagnosis and was referred by counsel for Dr. Maloney to a document called Standards of Practice, In the preamble to his question, counsel stated that these standards are for the Province of Alberta. In the agreed to index to the exhibits binder, the relevant exhibit was referred to as 242 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

“Chiropractic Profession Standard of Practice, College of Chiropractors of Alberta”. However, the document itself was not identified on its face. Paragraph SP 10 of this document says: The patient clinical record will clearly and completely demonstrate that the clinician has: • elicited and recorded an appropriate case history; • performed and recorded an appropriate physical examination and other relevant investigations; • derived and recorded a diagnosis; • derived and recorded an appropriate treatment plan, consistent with the diagnosis and congruent with a treatment protocol taught at a CCE accredited chiropractic institution, (or technique systems approved by the Council/Registrar). 73 It was Dr. Henderson’s view that the Standards of Practice does not require that a chiropractor have recorded a diagnosis prior to commencement of treatment. In Dr. Henderson’s view, Dr. Maloney met the standard of care in making and recording a diagnosis.

Informed Consent - Findings of Fact: 74 Mrs. Reid signed the Consent Form in the waiting room of Dr. Malo- ney’s office before she saw him for the first time. 75 Mrs. Reid agreed that she read the Consent Form before signing it but neither counsel questioned her in respect to what she understood by reading it. Mrs. Reid has a Grade 12 education and had obtained her real estate licence at some point in the past. She had also had some form of post secondary education described as “map making from Northwest- ern”. There was no further detail about what this consisted of or what Northwestern was. Additionally, she has worked in the insurance indus- try for many years. Based upon her education and her general experience, I conclude she must have had reasonable ability to read and a reasonable ability to understand English. 76 In his cross examination, counsel for Dr. Maloney, tried to establish that Mrs. Reid had specific and detailed medical knowledge about her back problems and the treatment proposed. He asked Mrs. Reid if Dr. Maloney ‘palpated’ her spine and she agreed that he did. He also asked questions about ‘sciatica’, what she understood it to be and whether the straight leg test that Dr. Maloney did was a test for sciatica. From her answers, however, I concluded that she did not really understand exactly what sciatica was or that the straight leg raise test was a test for sciatica. Reid v. Maloney D.C. Read J. 243

Although she apparently said at discovery that she had studied anatomy, it appeared from her trial evidence that any understanding she had of the anatomy of leg pain as it related to disc problems was obtained after her surgery. I find that at the time of her first appointment with Dr. Maloney, Mrs. Reid did not have any real knowledge of anatomy. Nor did she have much detailed knowledge of medical terminology. She did not understand what the word ‘sciatica’ meant. 77 Mrs. Reid does not have a medical education. I have concluded that in 2000 she did not have detailed medical knowledge and her knowledge of anatomy was likely no more than rudimentary. 78 Nor am I prepared to find, based upon what Dr. Maloney says is his standard practice, that he asked Mrs. Reid if she understood the Consent Form. There is certainly nothing in her chart to indicate that there was any discussion between Dr. Maloney and Mrs. Reid about the Consent Form. While Mrs. Reid’s memory of what occurred over 10 years ago is not perfect, she denied that Dr. Maloney said anything to her about the Consent Form or asked her any questions about what she understood it meant. I find it unlikely that a discussion about the Consent Form would have completely slipped Mrs. Reid’s mind had it occurred. This was her first visit with a chiropractor and her lack of memory on this issue was not challenged on cross examination. My impression of Mrs. Reid was that she tried her best to give truthful answers at trial. I find that Dr. Maloney did not ask Mrs. Reid any questions to confirm that she understood the Consent Form. 79 I do find on the evidence, however, that Dr. Maloney told Mrs Reid what his diagnosis was, even though there is nothing in his chart to indicate that he did so and even though he had no independent recollection of this. There is evidence, nonetheless, that he did so. Dr. Maloney said that once he had formulated a diagnosis, it was his standard practice to tell the patient what it was, using models or charts in his office to illustrate his explanation. Particularly in respect to Mrs. Reid his evidence was that, based upon his standard practice, he believed that he would have explained to her that he thought she was suffering from a sprain/strain to her back. More importantly, however, at trial Mrs. Reid agreed in cross examination that Dr. Maloney had told her what his diagnosis was. Fur- ther, Mrs. Reid made a complaint to the ACAC about her treatment by Dr. Maloney sometime in 2001. In an undated statement authored by Mrs. Reid in support of her complaint, she acknowledged that at her initial appointment “Dr. Maloney explained I apparently sprained a muscle 244 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

in my lower back, pinching a nerve causing discomfort — sprained/strained injury”. This evidence is sufficient for me to conclude that Dr. Maloney did, indeed, tell Mrs. Reid what his diagnosis was. 80 On the other hand, there is no evidence that Dr. Maloney said anything specifically to Mrs. Reid about risks of treatment or about possible alternatives to treatment. He gave no evidence that it was his standard practice to tell a patient about alternatives to SMT therapy or of the risks of such treatment. Mrs. Reid, as well, gave no evidence that he said anything to her either about risks or about alternative treatments. I find that Dr. Maloney gave Mrs. Reid no information about the risks of treatment or possible alternative treatments. 81 Dr. Maloney’s evidence, again based upon his standard practice, was that he would have explained to her that he thought that the greatest benefit to her could be obtained from the side posture manipulation. It was not clear from his evidence, however, that he said anything other than that or that he told Mrs. Reid he actually proposed to do a side posture manipulation. In particular, there is no evidence that Dr. Maloney said that he intended specifically to target the joints of Mrs. Reid’s lower back in doing a side posture manipulation and no evidence that he explained adequately or at all, what this procedure entailed. While he may have asked Mrs. Reid if she had any questions, it is unlikely she had enough information to even be able to formulate a question to ask him. 82 Nor did Dr. Maloney testify that what he called his standard practice was what he invariably did. He spoke instead of what he normally did. He had no independent memory of what he said or did on either March 9 or March 10 and had to rely only upon his chart notes to determine what was said or done. While his habitual practices may be what he normally did, particularly on March 10, when the evidence was that he was late and rushing to get to the St. Albert Saints’ hockey game, it is certainly possible, in my view, that he did not follow his habitual practice. Thus, I do not place much weight on what he called his standard practice, in respect to the information he gave Mrs. Reid about what treatment he intended to administer on March 10, 2000. 83 Mrs. Reid’s evidence was that there was no discussion about applying pressure to her spine — only to her hip bones. It is unlikely, as I have found, that she had sufficient knowledge of anatomy at the time to have any clear understanding that pressure on the hip bones would inevitably also put pressure on her lower back and, in any event, Dr. Maloney did not simply press on her hip bones. His evidence was that on March 10, Reid v. Maloney D.C. Read J. 245

2000, he applied specific pressure as well to her L4 and L5 vertebral processes in an attempt to move them. 84 While Mrs. Reid agreed in cross examination that Dr. Maloney had told her what adjustments he intended to do in order to try to correct the problem he had diagnosed and the purpose of the adjustments he intended to do, she was not asked to elaborate on what she understood about the adjustments he intended to do and their purpose. On the evidence, I conclude that Mrs. Reid thought the adjustment was to pump her hips and the purpose was to loosen the muscles in her back. This understanding was incomplete and inaccurate. 85 I conclude that Dr. Maloney gave Mrs. Reid only a very brief and general explanation of what treatment he proposed. He may have used the words ‘side posture manipulation’ and may have told her that he was going to ‘pump’ her hips as Mrs. Reid described it. However, he did not give her any clear explanation of what muscles and joints he was target- ing and Mrs. Reid did not understand that his goal was to reposition the joints in her lower back. She said that if she had understood this, she would have had questions because of her past history of back problems and I accept that this is so. In my view, that she asked no questions makes it more likely that she did not understand the treatment proposed rather than that she did understand it, in this instance. 86 I conclude, as well, that Dr. Maloney did not explain, at all, what risks Mrs. Reid faced if she underwent the treatment he proposed and, as I have already said, the wording of the Consent Form, itself, did not aid Mrs. Reid to understand the potential risk.

Informed Consent - The Law and Application of Law to the Facts: 87 In Dickson v. Pinder, 2010 ABQB 269 (Alta. Q.B.), Yamauchi, J. exhaustively reviewed the law respecting informed consent. At para. 68, he summarized what is required of a medical practitioner in order to fulfill the requirement of obtaining informed consent: In Canada, a medical practitioner must inform a patient about certain key facts: 1. the medical practitioner’s diagnosis of the patient’s condition; 2. the prognosis of that condition with and without medical treatment; 3. the nature of the proposed medical treatment; 4. the risks associated with the proposed medical treatment; and 246 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

5. the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives. 88 The case law clearly establishes that a medical practitioner, including a chiropractor, cannot fulfill his duty to obtain informed consent from a patient simply by having the patient sign a written document. It is but one factor for a court to consider in its determination of whether a medical practitioner has complied with his duty to disclose: for example Dick- son at para. 86. The wording of the form of consent at issue in Dickson differs considerably from that executed by Mrs. Reid. However, the principle is the same. 89 Given this principle of law, I disagree with Dr. Henderson’s position in evidence in chief, that simply having Mrs. Reid sign the Consent Form was sufficient to fulfill Dr. Maloney’s obligation to obtain her informed consent. Informed consent is not simply a piece of paper. It is a process or dialogue between patient and chiropractor. Dr. Conway alluded to this in his testimony and Dr. Henderson agreed with this proposition in cross examination. He explained that it was his practice when acting as clinical director at CMCC to explain the test findings to the patient, talk about the treatment plan and explain the treatment before embarking on any form of treatment. 90 The Consent Form signed by Mrs. Reid was the form recommended by the ACAC. Nonetheless, its wording is very general. It does not even specifically name Dr. Maloney. It refers to the “doctor of chiropractic named below” but the section for the doctor’s name is blank and has not been completed. The Consent Form purports generally to give permission for any and all treatment that the chiropractor intends to do while absolving him or her of any responsibility to provide specific or ongoing information. While it mentions possible risks, these risks are also dealt with in a generic fashion and are certainly not specific to a particular diagnosis or to specific types of treatment. Some of the described risks, such as the risk of stroke, may not be relevant to the type of treatment that Mrs. Reid underwent and, in any event, the risks are minimized and called “some very slight risks”. It is highly unlikely that simply by reading and signing this Consent Form, Mrs. Reid could be said to have been adequately informed of her diagnosis, the proposed treatment, alternative therapies or the possible risks. 91 As was pointed out in Kern v. Forest, 2010 BCSC 938 (B.C. S.C.), quoted with approval in Malinowski v. Schneider, 2010 ABQB 734 (Alta. Q.B.), at para. 66, informed consent requires that a patient know of Reid v. Maloney D.C. Read J. 247

alternative therapies and risks of treatment. Here, as was the case in Kern, there is no description of alternative treatments in the Consent Form and risks are minimized. 92 Much evidence was tendered during the course of the trial about the requirements set out in the Glenerin Guidelines respecting informed consent. Dr. Conway was critical of Dr. Maloney’s chart and his treatment of Mrs. Reid because, in his opinion, the chart did not indicate that Dr. Maloney had adequately recorded a diagnosis or treatment plan and in failing to do so, had failed to comply with the Glenerin Guidelines in terms of obtaining Mrs. Reid’s informed consent. Dr. Henderson was of the view that Dr. Maloney did comply with these Guidelines. 93 It was Dr. Conway’s view that the Guidelines are consistent with the Alberta Standards of Practice passed by the Council of the ACAC and consistent as well with what is taught in chiropractic colleges. 94 Dr. Maloney said that he tried to follow the Glenerin Guidelines in his practice. 95 Chapter 1 of the Glenerin Guidelines sets out recommendations respecting informed consent. The section of Chapter 1 called ‘Overview’ says this: As a matter of ethics and law there is an obligation, prior to examination and treatment, to disclose any material risk to the patient in order to obtain a valid informed consent. This legal duty has been established by case law and, in some provinces, by legislation. Paragraph 1.1 says this: 1.1 Chiropractors must disclose to the patient,..the nature of the proposed treatment or procedures and any material risks including those that may be of a special or unusual nature. Chapter 7 sets out the recommendations respecting clinical impressions and diagnosis. Paragraphs 7.1 and 7.2 relate to the issue of communica- tion with the patient. They say this: 7.1 In the absence of a clear diagnosis a working diagnosis or clinical impression must be made and must be communicated to the patient and recorded prior to treatment 7.2 Where a diagnosis is made, it must be communicated to the patient and recorded prior to treatment. 96 In my view, the Glenerin Guidelines are not determinative of the standard of care for chiropractors in obtaining informed consent. They say so on their face and clearly indicate that they are advisory only. That 248 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

this is so, is clearly set out as well in the disclaimer included at the beginning of the Guidelines, which says, in part: This document contains guidelines for the practice of chiropractic developed by a commission or consensus group of 35 persons established by the Canadian Chiropractic Association (CCA). It provides part of an ongoing effort by the chiropractic profession to provide improved guidelines for practice. Clinical guidelines are designed to assist clinicians by providing an analytical framework for the evaluation and treatment of common clinical problems. These guidelines are not intended to replace a clinician’s clinical judgment or to establish the only appropriate approach for all patients. They are intended to be flexible. They are not standards of care. [emphasis added] Adherence to them is voluntary. The Association understands that alternative practices are possible and may be preferable under certain clinical conditions. This document does not necessarily reflect the consensus of all members of the CCA, nor is it intended to be an official policy statement of the CCA. It is not the purpose of this document, which is advisory in nature, to take precedence over federal, provincial or local laws which may affect chiropractic practice. 97 Compliance with the Glenerin Guidelines does not establish that a chiropractor has met the standard of care, just as failure to comply with the Guidelines does not establish that the chiropractor has not met the standard. Adherence to the Guidelines is merely some evidence that the standard of care has been met. 98 In the same fashion adherence to the ACAC Consent Policy does not establish that a chiropractor has met the standard of care and failure to comply does not establish that the chiropractor has failed to meet the standard. 99 Both the Glenerin Guidelines and the ACAC Consent Policy are subject to interpretation and reasonable people can disagree as to what they mean, as is clear from the fact that Dr. Conway was of the view that Dr. Maloney had not complied with them and Dr. Henderson had the opposite view. 100 I conclude, that Dr. Maloney did not comply with the Glenerin Guidelines, specifically with paragraph 1.1 because he did not disclose to Mrs. Reid “the nature of the proposed treatment or procedures and any material risks”. 101 Unlike the Glenerin Guidelines, the ACAC Consent Policy does appear to be binding on members of the chiropractic profession. On my Reid v. Maloney D.C. Read J. 249

interpretation of this document, Dr. Maloney did not comply with all of the requirements of this policy either. For example the policy requires the chiropractor to inform the patient of any potential risk to the patient. Ad- ditionally the policy appears to require that the written consent document “disclose, to the patient.., the nature of the proposed treatment or procedure and any potential risks including those that may be of a special or unusual nature”. 102 The Consent Form did not disclose the nature of the treatment being proposed and I have found that Dr. Maloney did not sufficiently explain what the treatment he proposed for Mrs. Reid entailed. Further, I have found that Dr. Maloney gave no information to Mrs. Reid about potential risks, relying instead only upon the very general wording of the Consent Form. As an aside, it is interesting that the form of consent attached to the policy does not, in itself, comply with the written version of this policy. The very general wording of the Consent Form cannot be said to inform a patient of any potential risk. It simply provides some few exam- ples and because it calls these risks “very slight” minimizes the possibility that even these can occur. There may, indeed, be some situations where a procedure involves only “very slight” risk. In other situations, the risk may be much greater. 103 However, the fact that Dr. Maloney did not comply with all of the requirements of the ACAC Consent Policy is not the end of the inquiry. The test for whether the standard is met is that set out in the case law rather than that set out in either the Glenerin Guidelines or the ACAC Consent Policy. 104 I conclude that Dr. Maloney failed to obtain Mrs. Reid’s informed consent in two ways: he failed to advise her sufficiently of the treatment he proposed for what he had diagnosed and he failed to advise her of the risks of this treatment. 105 Dr. Maloney cannot recall any discussion with Mrs. Reid respecting the Consent Form itself. Nor can he recall if Mrs. Reid asked him any questions about it. He relies on his standard practice to say that if Mrs. Reid had any questions he would have responded to them. There is no notation on his chart that he discussed the Consent Form with Mrs. Reid or that he discussed the risks of the proposed chiropractic treatment or any alternatives. Mrs. Reid, on the other hand, has a clear memory that Dr. Maloney neither explained that he was going to manipulate her back or that he was going to apply any pressure to it. She specified that if he had told her he was going to apply pressure to her back she would have 250 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

wanted to discuss this because of her two previous back surgeries. Dr. Maloney failed to take any steps to ensure that Mrs. Reid understood the treatment he was proposing or the risks of that treatment. 106 Dr. Maloney admitted, in discovery evidence read in at trial, that he had no memory of giving Mrs. Reid any information about the dangers or risks of the type of treatment he proposed. He said, however, that insofar as his standard procedure was concerned, he likely would not have advised her of the risks. Mrs. Reid does not recall that he said anything to her about risks either. I find that Dr. Maloney did not discuss potential risks of the treatment with Mrs. Reid. 107 A chiropractor cannot assume that the patient understands the treatment suggested or the various risks just because she does not ask any questions. A chiropractor must discuss with the patient each material, unusual or special risk, be satisfied that the patient appeared to understand those risks and note that fact on the patient’s chart: Byciuk v. Hollings- worth, 2004 ABQB 370 (Alta. Q.B.), para. 38. 108 In Dickson at para. 74, Yamauchi, J. summarized the law in respect to a medical practitioner’s duty of disclosure of risk: In summary, a medical practitioner must disclose a risk, where the patient would not know of the risk and either: (a) the risk is a likely consequence, and the injury that would result is at least a slight injury, or (b) the risk has a serious consequence, such as paralysis or death, even where that risk is uncommon but not unknown. In other words, the medical practitioner must undertake a “risk assessment” and determine the risks a patient wants and needs to know to decide on their choice of therapy.

Evidence re Risk of Harm: 109 The next question is whether there was a risk or risks that Dr. Malo- ney should have discussed with Mrs. Reid. 110 Both parties tendered expert evidence of the risks posed by chiropractic manipulation. In order to understand this evidence, it is necessary firstly, to have a basic understanding of the anatomy of the disc and of the forces to which an intervertebral disc is subjected. This information was made available at trial from a number of sources. What follows was obtained from the text book Clinical Biomechanics of the Spine, (2nd ed), Reid v. Maloney D.C. Read J. 251

White, A.A.; Panjabi, M.M., Lippincott Williams & Wilkins, ch 1, made exhibit 60 at trial. 111 An intervertebral disc is comprised of three distinct parts, two of which are important for the purposes of this case: the nucleus pulposus (“nucleus”) and the annulus fibrosus (“annulus”). The nucleus is a centrally located area in the disc and is composed of a very loose and translucent network of fine fibrous strands. A healthy nucleus has been described as having the consistency of gel. The annulus is at the periphery of the nucleus and forms the outer boundary of the disc. It is composed of fibrous tissue in concentric laminated bands, arranged in a helicoid manner so that the fibres run in opposite directions in any two adjacent bands. 112 Intervertebral discs are subjected to a considerable variety of forces during normal body movement: compression, torsion, and tension being the main ones. Compression forces are caused by the weight of the body itself and these forces are increased by body position (for example there is more compression pressure on an intervertebral disc when a person is sitting than there is when he is standing) and by any activity where dy- namic loads are involved (jumping or trauma for example). Forces are also dependent upon time. 113 Tearing or renting of the annulus permits the material of the nucleus to extrude or protrude through the annulus. The result can be a protruded disc such as that suffered by Mrs. Reid. 114 Dr. Michel Lavoie gave evidence for the Plaintiff on the issue of causation. He was qualified by consent as an expert in orthopaedic surgery able to give opinion evidence on the diagnosis, causes and treatment of low back pain and lumbar disc disease injury and treatment. 115 It was Dr. Lavoie’s opinion that Mrs. Reid’s previous two back surgeries had left her with a weakness in the lower back area and pre-disposed her to further injury at the same site. He said this was because when disc surgery is performed, the disc involved is already abnormal. Further, the surgery itself leaves a rent in the annulus because it does not heal to be as strong as before surgery. Moreover, the pre-existing rent in the annulus sometimes must also be enlarged during surgery to permit the protruding section of the disc to be removed. In Dr. Lavoie’s view all of these factors leave a disc that has been operated on pre-disposed to further injury. Further, he said, the effect of the surgery is to pre-dispose adjacent areas of the spine to problems because the bio-mechanics of the spine are altered by the surgery. It was also Dr. Lavoie’s opinion that the 252 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

manipulations done by Dr. Maloney on Mrs. Reid’s back on March 9, at her first appointment, would create a rotational force across the lumbar spine and would increase strain across the lumbar disc and could cause injury. He was of the further opinion that the four manipulations done by Dr. Maloney on Mrs. Reid’s second visit on March 10 could also apply pressure to the disc as could the SOT block procedure that Dr. Maloney administered on March 13. 116 Dr. Bruce Symons, a graduate of the Canadian Memorial Chiropractic College, a practicing chiropractor in Calgary, and with an M.Sc in biomechanics, was qualified by consent to give opinion evidence for the De- fendants on the bio-mechanics of chiropractic manipulation of the lumbar spine. He gave extensive evidence respecting the forces applied to a sacroiliac joint during a chiropractic manipulation. 117 Dr. Symons’ evidence was that the forces transmitted to the body by a sacroiliac joint manipulation of the type done by Dr. Maloney were likely to be minimal. Although, he indicated that these had not, in fact, been scientifically measured, for technical reasons, it was his opinion that they would likely measure in a range from 250 to 500 Newtons. To illustrate, he gave as an example that a pat on the back would generate about 100 Newtons of force, while someone performing a movement such as that of a Tae Kwon Do Master, breaking a brick with his hand would generate about 3,000 Newtons of force. In his written report, Dr. Symons offered the opinion that a diversified SMT of the type performed by Dr. Maloney “does not load the L4-5 spinal segment to any apprecia- ble extent, and causes minimal rotation on the lumbar spine since the force vector is directed into the pelvis”. He said as well, in examination in chief, that he was not aware of any scientific evidence that supports the assumption that sacroiliac SMT causes disc herniations. It was his view that the forces exerted on a spine during a side posture lumbar manipulation would not be sufficient to cause damage to a disc. He offered as well, that it would be anatomically impossible for a side posture manipulation to produce enough rotational force to damage a disc. 118 In support of his opinion, Dr. Symons pointed to studies using cadaver spinal units consisting of a disc sandwiched between two lumbar vertebra. This research found that the disc would fail physically when rotated to 14.5 degrees. Dr. Symons explained that this study referenced complete gross anatomic failure but admitted that the actual amount of rotation required to cause microscopic tearing is unknown. He said, however, that one could extrapolate to approximate the value, giving as an Reid v. Maloney D.C. Read J. 253

example the results of a test using a rabbit knee ligament pulled apart in a materials testing machine. He said in this test, the first signs of microscopic damage occur at 25-30% of the strain required for total failure. He then said if one extrapolated these findings and applied them to a degenerated cadaver spine unit, this would mean that the disc would likely begin to fail at as little as 3.6 degrees of rotation. However, he said, studies have shown that an L4-5 spinal segment can rotate only to 3 degrees as an absolute anatomical limit before a bony fracture of the spinal processes would occur. He concluded therefore that “even assuming that Mrs. Reid is one of the most flexible people on the planet and has 3 degrees of axial rotation in her L4-5 facet joint, it is very unlikely that her already degenerated L4-5 or L5-S1 spinal units could be damaged by Dr. Maloney’s lumbo-sacral SMT”. 119 Dr. Symons suggested as well in his report that the side posture SMT manipulation done by Dr. Maloney on the second visit which specifically targeted the L4-5 vertebrae engenders “no more force than sacroiliac SMT”. 120 Dr. Symons also pointed to a study done by someone named Oli- phant, first name not provided, in Safety of Spinal Manipulation in the Treatment of Lumbar Disc Herniation: A Systematic Review & Risk As- sessment. J Manip Physiol Ther 2004; 27:197-210. According to Dr. Sy- mons, Oliphant found that the risk of lumbar spine herniation associated with SMT was one in 3.7 million. In oral evidence he added that the odds of being hit by lightning are about 1 in 1 million and so “this result would suggest that there’s no causal link at all. It’s entirely coincidence”. 121 I prefer the evidence of Dr. Lavoie to that of Dr. Symons on the issue of risk of harm. Dr. Symons’ opinion with respect to the forces exerted on a back during spinal manipulation is not based upon fact but upon conjecture. 122 The research papers he used to form his opinion, reach conclusions that are problematic or unsupportable, in my view. 123 In respect to the Oliphant article, relied upon by Dr. Symons for his conclusion that statistically, one was more likely to be struck by lightning than to be injured in a chiropractic manipulation, it was suggested to him in cross examination that Oliphant had conducted his “research” by doing an Internet search to find literature. Dr. Symons agreed that this was so. It was suggested to him further that based upon the articles he found on the Internet, Oliphant came to the conclusion that in the last 40 years in the United States, there had been 6.5 billion chiropractic visits. 254 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Specifically, Dr. Symons was asked: “I suggest to you that Dr. Oliphant did an Internet search, read some articles, came to the conclusion that there had been 6.5 billion chiropractic visits in the States over 40 years, and then as a result of that same Internet search, came to the conclusion that there had been only 31 proven cases of disc herniation as a result of 1 chiropractic manipulation and divided 31 into 6 /2 billion and came to the conclusion that he did. Would that be right?” He responded; “I don’t have the paper in front of me, so I can’t verify or deny it.” Dr. Symons was able to say almost nothing else about the methodology or statistical analysis used by Oliphant other than to say that he assumed because it was in a peer-reviewed journal that “it had been looked at fairly ro- bustly”. He did not have the article in front of him or available when he gave his evidence. Because of these problems, I place no reliance on the Oliphant article insofar as it grounds Dr. Symons’ opinion. 124 Dr. Symons conclusion that disc failure using SMT would be impossible is also based upon research that is problematic. In a 1993 article by Cassidy, David J. et al, called Side Posture Manipulation for Lumbar Intervertebral Disk Herniation, relied upon by Dr. Symons, the author states that tortion (rotation) does not result in disc failure until rotation reaches 22.6 degrees for normal discs and 14.3 degrees for degenerated disc. However, the article is not based upon any experiments or studies actually done by the author and is instead based upon what the author terms “a careful review of the work of Farfan” (an author who wrote an earlier study published in 1973). Cassidy postulates that since rotation of that magnitude in the lumbar spine could only be accomplished by fracture of the posterior joints, and because the disc itself is “well suited to resist rotation ...it is hard to comprehend how the small amounts of rotation introduced during side posture manipulation could damage or irritate a healthy or herniated disk.” Cassidy’s only other ‘proof’ for his thesis, however, was “several uncontrolled descriptive studies” which have shown percentages of patients relieved by side posture manipulation and “one published controlled study” by someone named Nwuga which showed that “lumbar side posture rotational manipulation was superior to conventional physiotherapy.” The remainder of the article deals with the technique to be used. 125 Dr. Symons agreed in cross examination that the Cassidy study considered only the force of torsion on the disc and no other forces were present and that a disc in the human body was subject to numerous other forces as well. He also agreed in cross examination that he did not know if any of the discs subjected to the torsion in the study had been operated Reid v. Maloney D.C. Read J. 255

on, or had annular tears already. Again, given the problems associated with the Cassidy article, I place no reliance upon it as a valid basis for Dr. Symons’ opinions. 126 It is also noteworthy that another article, Clinical Biomechanics of Spinal Manipulation, Herzog, Churchill Livingstone, 2000, c. 5, p 193, which article was also made an exhibit, contradicts Dr. Symons’ very specific estimates of the amount of force generated in spinal manipulations. According to this article, the theoretic determinations of the forces used by chiropractors have been shown to be faulty and unrealistic and there are problems with all of the attempts at measuring scientifically the forces exerted. The article also points out that there are many possible variations which can affect the amount of force administered to a patient: the problem being treated, manipulative technique, the chiropractor ad- ministering the treatment (force can easily differ by a factor of 2 to 4 between chiropractors), and speed. This article also indicates that the force applied is much more variable than Dr. Symons indicated in his testimony. The author spoke of measurements in a side-lying position of a lumbar spine using the Thompson technique observed by the author as being as high as 1200 N with the “highest average thrust duration for treatments of the spine were 5000 Ns”. This article also laments that there is a lack of experimental information respecting the movement of vertebrae during chiropractic treatment in conjunction with direct measurements of the treatment forces. 127 Herzog et al also say this at p. 198 of the article: One of the most intriguing questions in biomechanics is the so-called “distribution problem”. The solution..is aimed at calculating (theoretically) or measuring (experimentally) the forces of internal structures in biologic systems. In the human body these internal structures are represented primarily by the muscles, tendons, ligaments, bones, discs and articular cartilage. Knowing at any given time what all of the internal forces in the human body are would be a great help in identifying, for example, the mechanisms underlying movement control and factors responsible for long-term degenerative diseases of the musculoskeletal system such as osteoarthritis... Unfortunately the distribution problem has not been solved theoretically, even in relatively simple systems... For such a complex system like the human spine, any theoretic results on internal force transmission must be considered and interpreted with great care. Unfortunately to my knowledge, there are no measurements of any internal forces transmitted during spinal manipulative treatments. 256 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

128 My review of the various articles which form the basis for Dr. Sy- mons’ opinions, coupled with the problems with the research which were pointed out in cross examination cause me to place no reliance upon Dr. Symons’ evidence. Some of his conclusions were directly contradicted by research papers he purported to rely upon and others were supported only by research that Dr. Symons has extrapolated beyond the limits of the research, itself. As a consequence, in my view, it would be unsafe to rely upon Dr. Symons’ conclusions. 129 I find, therefore, based upon the evidence of Dr. Lavoie that chiropractic manipulation of the type undertaken by Dr. Maloney did pose real risks for someone like Mrs. Reid, who had previous back surgeries. I conclude, as well, that Mrs. Reid had no knowledge of the risk and that there were possible serious consequences which, while they may have been uncommon, were not unknown. Dr. Maloney failed to inform her of these risks and in doing so, breached the standard of care and failed to obtain her informed consent. 130 I conclude, as well, based upon her evidence, that Mrs. Reid would not have consented to treatment had she been adequately informed of the risks. My impression of Mrs. Reid was that she is not an argumentative person and that she tends to defer to authority to some extent. However, her evidence was quite clear. If it had been suggested to her that she risked aggravating her back problems if she underwent treatment, she would have wanted to have a discussion about that before proceeding. She did not say she would not have proceeded, just that she would have wanted further information. In the absence of being satisfied with the further information, I must conclude that she would not have proceeded. I will deal with the issue of whether the spinal manipulation that Mrs. Reid underwent in Dr. Maloney’s office caused or contributed to the disc prolapse she suffered, later in these reasons. However, the evidence showed that there was a real risk. 131 The test is not simply whether Mrs. Reid subjectively would have consented to treatment, however. It is “whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed”: Arndt v. Smith, [1997] 2 S.C.R. 539 (S.C.C.), at 554. 132 The circumstances of Mrs. Reid in March of 2000 were these. She had two previous back surgeries in the same general area of her back that Dr. Maloney now proposed to treat. These, on the evidence of Dr. Lav- oie, had left her with a weakness in the lower back area and predisposed Reid v. Maloney D.C. Read J. 257

her to further injury at the same site. The treatment proposed would create a rotational force across the same area of the spine at which she had weakness and would increase strain across the lumbar disc. A reasonable person in these circumstances would not, in my view, have consented to or undergone chiropractic treatment had he or she been properly informed of the risk. 133 Mrs. Reid said that on March 10, Dr. Maloney told her that he was going to perforai the same treatment as he had previously. Dr. Maloney agreed. His evidence was that he explained to Mrs. Reid that he was “basically” going to do the same thing as he had the previous day except that he was going to adjust a few more joints. Given Mrs. Reid’s previous back surgeries, her understandable concerns about any treatment that directly affected her back, and her level of knowledge, the explanation Dr. Maloney gave Mrs. Reid before treating her on March 10, particularly, was insufficient. As a consequence although he said he asked her if she was “okay with that”, before he proceeded and she “must have” agreed or he would not have proceeded, Mrs. Reid simply did not have sufficient information to be able to give informed consent. 134 By not explaining what he was going to do and that there was some risk of disc herniation, Dr. Maloney failed to disclose sufficient information to allow Mrs. Reid to make an informed decision of whether to consent to SMT. 135 In Olsen Yamauchi, J also exhaustively canvassed the issue of what a medical practitioner was required to do regarding giving information about alternative remedies. At para. 75, he said this: Canadian jurisprudence has established that there is no question on that point. A patient cannot meaningfully choose a therapy unless the medical practitioner places that therapy in context, with alternatives and the consequence of inaction. In Zimmer v. Ringrose, 1981 CarswellAlta 251, 124 D.L.R. (3d) 215 at para. 16 (C.A.) (cited to Carswell) the Alberta Court of Appeal said: With a view to revealing any probable or special risks involved, the physician or surgeon should also discuss the benefits to be gained from the recommended treatment or operation, the advantages and disadvantages associated with alternative procedures and the consequences of fore- going treatment. Such a discussion is essential since a patient cannot measure risks in the abstract. To discharge his duty of care, the doctor must give the patient some yard- 258 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

stick against which he can assess the options available to him. 136 There is no evidence that Dr. Maloney discussed any alternative treatments with Mrs. Reid other than to say generally, if you are not comfortable with proceeding with the SMT, “there’s other things that we can try”. 137 However, Mrs. Reid had already tried massage therapy and was still suffering symptoms when she came to see Dr. Maloney. She had tried analgesics and rest, as well. Further, she had a long history of back pain and was well aware that it could be treated with analgesics, physiotherapy, heat and ice. She was also aware that back pain could necessitate surgery. In all of the circumstances, I conclude that Mrs. Reid had sufficient information respecting alternative modes of treatment and, in these specific circumstances, it was not necessary for Dr. Maloney to repeat them. She was also already familiar with the risks and benefits of not treating. Her back pain had continued for a number of weeks before she sought treatment from Dr. Maloney. She knew it would likely resolve eventually without treatment, as it had many times in the past, but she wanted to hasten her recovery if she could. Dr. Maloney did not need to explain any of this to Mrs. Reid as she was already knowledgeable about it. What was missing from the information that Dr. Maloney provided to Mrs. Reid was any information about the risks of the treatment he proposed so that she could balance that against the risks of not treating. Mrs. Reid did not understand when she consented to Dr. Maloney’s treatment that she risked making her back problems materially worse.

4. Did Dr. Maloney otherwise meet the standard of care? 138 Aside from his failure to obtain Mrs. Reid’s informed consent to treatment, it was Mrs. Reid’s contention that Dr. Maloney breached the standard of care by beginning treatment before he had adequately determined her condition and made a proper diagnosis, and as a consequence had treated her before he, himself, really knew what he was dealing with and what the possible risks or contraindications were. She contends that he also failed to meet the standard of care in failing to properly inform her of what treatment he planned to give her. Reid v. Maloney D.C. Read J. 259

Failure to Properly Diagnose: 139 On the issue of his failure to adequately diagnose her before beginning treatment, Mrs. Reid alleges in particular that Dr. Maloney failed to take an adequate history and to do adequate testing.

Failure to Diagnose - Evidence: 140 Mrs. Reid testified that she first had back surgery in 1984 when Dr. Narang operated on her for a herniated L4-L5 disc. She said she had further back surgery done by Dr. Glasgow to remove scar tissue resulting from the first surgery. According to Dr. Lavoie’s medical report, this second back surgery occurred on February 26, 1988. From his review of the documentation from the General Hospital where the surgery was carried out, Dr. Lavoie described it as surgery to relieve lateral spinal stenosis due to a sequestrated intervertebral disc at L5-S1 on the left. 141 Mrs. Reid testified that when she made her first appointment with Dr. Maloney, the receptionist advised her that she must obtain x-rays first. She said that it was as a consequence of this advice that she attended at the Grandin Medical Clinic on March 7, 2000 to obtain x-rays of her back. It was her evidence that when she went in to see Dr. Maloney for her first appointment, she told his office that the x-rays were not yet available and that Mrs. Cottingham was asked by Dr. Maloney to check with the Grandin Medical Clinic to determine when they would be available. Dr. Maloney denies that his office requested Mrs. Reid to obtain x- rays. Mrs. Cottingham denies asking Mrs. Reid to obtain x-rays as well. 142 Mrs. Reid’s evidence was that Dr. Maloney completed various diagnostic tests at her first appointment. She recalled being asked to heel/toe walk as well as being asked to straight leg raise. She thought he also checked the height of her hips. She said in direct evidence that he did not conduct any further tests. 143 Her direct evidence was that at her second appointment Dr. Maloney did not conduct any further tests. However, in cross examination, she agreed that he had done some stretching of her legs and said that he may have done some sort of motion palpation and some examination of her spine and hips with his hands to determine whether there were any other spots where she was having discomfort. 144 Dr. Maloney’s evidence was that he did not see the report respecting the x-rays taken at Dr. Zalaski’s request until March 13 according to his chart and the x-ray report read “L spine normal alignment decreased L5- S1 disc space with hypertrophic changes. Facet joints present other disc 260 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

spaces and bodies normal. SI joints unremarkable.” He said that had he received this information on March 10 before her appointment that day, it would not have changed his treatment. 145 Dr. Maloney’s evidence, based upon his standard practice, was that before beginning to treat Mrs. Reid on her second visit, he would have repeated the range of motion test and a motion palpation test. There is no notation on the chart respecting the range of motion test but he testified that this was likely because the results were within normal limits and so based upon his standard practice, he would not have recorded anything. In respect to the palpation of her lower back, he said that he did record results as “MP L5 PR, L4 PL-SPP”. He said the notation meant that by motion palpation he had determined that Mrs. Reid had a fixation at L5 at the right transverse process. He said the second part of this notation meant that she has also had a fixation at the L4 transverse process. He said this notation meant either that these two parts of the vertebrae were in a mal-position, one bone in relation to the other or that they lacked proper mobility. He said that when he did the motion palpation of her hip area he also found a left sacroiliac fixation which he recorded as LPI and a right sacroiliac fixation which he recorded as RAS. He said that his findings indicated more stiffness than the day before. This did not surprise him and he explained it thusly: There are times where depending on the presentation of an issue like this you can have a change in muscle tone the way that the muscles either respond to the treatment itself or something that somebody has done in the mean time. Sometimes when you mobilize one area other areas become I guess other areas that would have less movement become more apparent. 146 Dr. Maloney said he did not repeat any of the neurological tests on March 10 because there was no indication this was needed. After that, again based upon his standard practice, he said he would have had her lie on her back and then do some stretching of her gluteal and piriformis muscles. He says this is documented in the chart. 147 Mrs. Reid did not recall that Dr. Maloney performed any further testing at her third and last appointment. Her husband Dan Reid, who was present at this third appointment, also would not agree that Dr. Maloney examined Mrs. Reid or did any testing of Mrs. Reid before beginning the treatment. 148 Dr. Maloney’s evidence respecting the testing and diagnosis of Mrs. Reid was based upon what he had recorded on her chart as well as his Reid v. Maloney D.C. Read J. 261

standard practice because he had no independent memory of having examined Mrs. Reid before he started treating her on March 9, 2000 nor of what occurred at her second appointment the following day. 149 Dr. Maloney’s evidence was that his standard practice when he commenced an examination of a patient was to look at the patient’s back, having them lift their shirt for this, so that he could do a postural examination. In doing so, he said he was looking for signs of problems such as scoliosis and antalgia, or hunching forward. Then he would have them bend forward to touch their toes, and lean backward and side to side, and twist so that he could check their range of motion. In checking range of motion, he testified that he normally did not use measuring devices but would simply check visually. In respect to these two procedures, he said his general practice was to note on his chart only any abnormalities. 150 He said, based upon his standard procedure, the fact that he had made no entry on Mrs. Reid’s chart in respect to range of motion testing and postural testing meant that all test results were within normal limits, not that he had not done the testing. 151 Dr. Maloney testified, as well, that he used a number of ‘mnemonics’ or checklists, taught in chiropractic school, to aid in both the general history taking process and that to obtain a history of the present complaint. For the history of the present complaint he testified that the mnemonic he used was ‘MNOPQRST’ where ‘M’ means mechanism of injury, ‘N’ means neurological symptoms, ‘O’ is for onset, ‘P’ means palliative or provocative or what makes it better or worse, ‘Q’ stands for quality of pain, ‘R’ means any radiation or referral of the pain and also radiology if there are any x-rays available, ‘S’ stands for site and severity of the pain and ‘T’ stands for the type of pain and timing. He said that for any new patient coming into his clinic in March of 2000 for low back pain and pain in the left leg, he would have used this mnemonic to assist in gathering information. 152 He said, as well, that if a patient presented, as did Mrs. Reid, with some leg pain, this indicated a possibility of neurological involvement although he said leg pain can also be mechanical. As a result, if a patient presented with leg pain, he would do neurological testing as a standard practice. One of these tests would be the heel walk and toe walk. Dr. Maloney explained that this test was one way to rule out neurological involvement. In Dr. Maloney’s view, ruling out neurological involvement was important because if there were symptoms of neurological involvement he would be concerned and would want to “delve deeper”. He 262 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

said he always recorded neurological tests, whether the results were positive or negative, and therefore it was his practice always to record the findings of the heel and toe walk on the patient chart. After completing the heel/toe walk test, Dr. Maloney said his normal practice was to then do what he termed a gross dermatomal or skin sensation test. If a patient presented with lower back pain with leg pain, his standard procedure was to do the dermatomal test from the hips to the toes. Again, he said his standard practice was to record the results of this test whether or not they were negative because it was a neurological test. 153 Dr. Maloney’s notation on Mrs. Reid’s chart about the heel/toe walk, was ‘WNL b/l’. His evidence was that this meant that Mrs. Reid’s response to this test was within normal limits bilaterally. This test result together with the recorded test result from the dermatomal testing caused Dr. Maloney to conclude that it was unlikely that Mrs. Reid’s back and upper leg pain resulted from a neurological problem. 154 Next, he said he would test deep tendon reflexes using a reflex ham- mer at both the knee and at the ankle. Again, he said he would record the results of this test, whether positive or negative, because it was a neurological test. Dr. Maloney said that his recording of ‘2/4’ in respect to Mrs. Reid’s reflexes was his method to record normal reflexes not as Dr. Conway read it, an indication of reduced reflexes. 155 One of the tests that Dr. Conway suggested that Dr. Maloney should have conducted on Mrs. Reid was the Kemp’s test. Dr. Maloney disagreed with Dr. Conway. He said he had been taught that Kemp’s test was only a mechanical test to show irritation of the lumbar facet joints and did not show or rule out a bulging disc In cross examination of Dr. Maloney, it was pointed out to him that at least one orthopaedic textbook says that Kemp’s test can be used to rule out or show discal involvement and he agreed that this was so. 156 Dr. Maloney was asked in examination in chief to assume that the neurological tests he had performed on a patient presenting with symptoms such as Mrs. Reid’s, were all negative and was asked what he would do next. He responded that he would move around to the back of the patient to do static palpation and a motion palpation of their lower back. The purpose of these two tests was, he said, to look for abnormal motion, position or a fixation in the joints of the lower back. Again, he said it was his practice to record his findings in respect to motion palpation “because it is related to treatment”. Reid v. Maloney D.C. Read J. 263

157 In examination in chief, he said if he was examining a patient with complaints of lower back and leg pain, he would then perform a straight leg raise test. He described this as being done when the patient is supine (lying on their back). Dr. Maloney said he would grasp each of the patient’s heels in turn and pull the patient’s leg until it was at a 90 degree angle to their body. In doing so, he said he would be looking for symptoms of pain down their leg. He said this was also a neurological test and so, again, he would always record the results. 158 In respect to his recorded results on Mrs. Reid’s charts, Dr. Maloney said that while his chart notes indicate there was a mild positive reaction into Mrs. Reid’s left thigh when he did the straight leg raise test, he thought that this pointed to a mechanical rather than neurological basis for the symptom because he had lifted her leg beyond 70 degrees. Al- though, there was no indication on the chart that Mrs. Reid’s leg was raised to 90 degrees as Dr. Maloney testified it was, his testimony was that he would only record the level he was able to raise a patient’s leg to if it was less than 70 degrees. 159 Dr. Maloney said he would then have the patient lie prone (on their stomach) and would do further static palpation testing on the lower back, generally feeling the muscles, bones and joints and looking for signs of spasm, inflammation or pain as well as instability in any of the joints. He said he would also do stress testing, testing the joints of the lumbar spine and would perform something called the Yeoman’s test, for sacroiliac joint instability, pain, or fixation. He said, again, he would record the results of these tests only if they were positive. 160 Based on his standard practice, it was Dr. Maloney’s evidence that he had done static palpation and the Yeoman’s test on Mrs. Reid and that the reason there was nothing on the chart to so indicate, was because the results were negative. He said his chart notes also indicated that on March 9, he found no fixations of Mrs. Reid’s lumbar spine when he did motion palpation. Again, he said he had reached this conclusion because nothing was indicated on the chart. He said he did find a fixation of Mrs. Reid’s left sacroiliac joint and this was indicated by his chart notation noted on the chart as ‘MP LPI’. He said he considered this, also, to be indicative of mechanically induced pain in her back. 161 In cross examination, it was pointed out to him that he said “that appears to be it” when asked at discovery if he had done any testing other than the testing the results of which he recorded in his chart. He said he was telling the truth at the discovery and that his memory was the same 264 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

at trial as it was at discovery. Again he reiterated that he had no specific memory of the appointment. 162 Based upon his standard practice, Dr. Maloney said that after he had completed these tests, he would normally be able to formulate a diagnosis. If he still was not certain of the diagnosis, he said, he would order x- rays or other laboratory tests before proceeding to treat. He said, as well, that it was his practice to record the test results on the patient’s chart only after completing all of the tests. 163 On a patient’s second visit, Dr. Maloney said it was his standard practice to do a quick repeat of the static and motion palpation and range of motion tests before commencing treatment. Again, he said it was his practice to only record the results if there was something of significance. 164 After having completed these various tests at Mrs. Reid’s first visit on March 9, Dr. Maloney formed the opinion that Mrs. Reid was suffering from a sprain/strain of her back. This diagnosis was recorded on the chart and explained as “Lsp SI” in the upper left-hand corner of the chart. Dr. Maloney said this meant he had diagnosed lumbar strain and sacroiliac joint dysfunction. He explained that the word ‘belt’, which appears on the chart immediately after these symbols, was unrelated to the diagnosis and simply indicated that he had prescribed a lumbar belt for Mrs. Reid. It was Dr. Maloney’s evidence that while it is not written in the chart, the differential diagnosis would be that Mrs. Reid was suffering from a disc bulge. 165 Dr. Maloney said he would follow the Glenerin Guidelines in determining whether to proceed with spinal manipulation of someone who had previous spinal surgery. The main reason not to proceed was if there was any indication of instability, in his view, but he said poor tolerance to treatment or insufficient healing in the area would be a contra-indication to treatment, as well. He testified the Glenerin Guidelines reference to “a relative contraindication depending on clinical science i.e., response, pretest tolerance, or degree of healing” meant that “if somebody was responding negatively to treatment in terms of an exacerbation of symptoms significantly, then that would represent a contraindication if you were dealing with someone who has had prior surgery”. He said that a chiroporactor would want to do thorough range of motion testing and stress testing of a joint at a previous surgery site to ensure that there was no instability in an area. Reid v. Maloney D.C. Read J. 265

166 In his view spinal manipulation would not be contraindicated for Mrs. Reid, saying: There was no evidence of instability and [Mrs. Reid] had not reported any situation like that to me. The tolerance — or the stress testing that I would have done, it would have indicated if there was an indication of uncommon pain or hyper-mobility at a joint. That would be a concern...[and in tenus of] degree of healing, the surgery was some years prior and there was no indication the joints would have been — or the surgery itself was having problem healing. 167 It was Dr. Maloney’s evidence that his standard practice after the treatment or treatments had been completed on a second visit, would be to have the patient stand up and repeat the range of motion testing to check how well the treatment had been tolerated. He said he would record any negative reaction to treatment — including if the patient were to cry out in pain during the procedure. 168 Dr. Maloney said he did not repeat any of the neurological type tests on Mrs. Reid on March 10 at her second visit because there was no indication they were required. 169 From the Grandin Medical Clinic chart, it is evident that when he saw Mrs. Reid on March 7, 2000, Dr. Zalsky’s diagnosis was acute back strain. He specifically found there was no evidence of a prolapsed intervertebral disc. Dr. Zalasky’s examination of Mrs. Reid revealed tenderness over the para-spinal muscles and in the lumbar region. Mrs. Reid did not apparently have any radiation of pain into her legs. In his evidence, Dr. Lavoie agreed with Dr. Zalasky’s diagnosis based upon the description of symptoms on the chart. 170 The chart notation from March 13, 2000 when Mrs. Reid saw Dr. Gray, immediately after leaving Dr. Maloney’s office, indicates his ‘impression’ was “severe right lower back spasm”. Under diagnosis the number 847.2 appears. This is a diagnostic number used for purposes of Alberta Health care billings and relates to lumbar strain.

Failure to Diagnose - Expert Evidence: 171 The Plaintiff’s expert, Dr. Conway testified that diagnosis was para- mount to a chiropractor’s treatment and that the purpose for testing a patient during examination was to allow the chiropractor to gather information in order to understand all the mechanisms of injury so that he could formulate a diagnosis. He described the process as one that included gathering physical evidence and examining the patient. He said 266 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

the diagnostic process involves taking a patient through provocative testing and basic testing including tests for reflexes, sensation, and strength. He described provocative testing as that designed to elicit a response in the patient in order to isolate a problem and said it is accomplished by putting pressure on the site in question. The patient may respond themselves, or the chiropractor may be able to feel that the joint surface is loose or tight. 172 He said, that a chiropractor should also conduct normal range of motion tests and use the results of both the provocative and range of motion tests along with the clinical presentation and the history to formulate a diagnosis which he described as the most logical diagnosis and a differential diagnosis, which is the most likely alternative diagnosis that cannot be ruled out. It was his view that diagnosis is the most important aspect of chiropractic care since it is only after ruling out a diagnosis for which a treatment would be contraindicated, that a treatment path can be started. As well, if an injury is diagnosed that is beyond the scope and practice of chiropractic, a chiropractor should refer the patient to others and do only palliative or conservative care. 173 In Mrs. Reid’s case, Dr. Conway said four factors caused him to conclude that the diagnosis process required Dr. Mahoney to rule out the possibility of disc problems: she had a noted history of low back pain; she had two previous back surgeries; she had ongoing episodic low back pain; and she had an injury mechanism that would stress the disc and clinical signs that were consistent with discal involvement. Given this history, it was Dr. Conway’s opinion that in Mrs. Reid’s case, ruling out a disc would be considered “a standard clinical choice at the outset”. 174 Dr. Conway formed his opinion respecting Mrs. Reid’s diagnosis only from a review of Dr. Maloney’s chart. He was not present when Mrs. Reid was examined, of course, and did not have the benefit of speaking to Dr. Maloney about the meaning of some of the more cryptic entries on the chart. Based upon this review, it was Dr. Conway’s opinion that the diagnostic process which Dr. Maloney underwent in Mrs. Reid’s case was deficient in three general areas. 175 Firstly, it was Dr. Conway’s opinion that Dr. Maloney did not record a diagnosis on the chart. Specifically, Dr. Conway was asked to identify the notation “Lsp” (or Lep) and “SI” followed by a comma and the word ‘belt’ but he did not recognize this as a recorded diagnosis. Reid v. Maloney D.C. Read J. 267

176 Secondly, Dr. Conway was critical of the history Dr. Maloney took, at least insofar as this history was charted and named four deficiencies in the history taken. 177 In Dr. Conway’s view, the chart provided very little information respecting the type of pain Mrs. Reid was experiencing, its duration, and the precise distribution. 178 He was also critical that while Dr. Maloney’s chart indicated that Mrs. Reid had told him she had undergone two previous back surgeries, Dr. Maloney seemed, from the chart, to be uncertain of what type of surgeries these were and whether or not it was disc surgery. It was Dr. Conway’s view that in a case of a patient with a history of previous back surgery who, like Mrs. Reid, was unable to provide complete information about the type of surgery, it was imperative to obtain this information from other sources before treatment commenced. This information could be obtained by requesting charts from other care givers or by obtaining copies of previous x-rays. He indicated that it was his own practice to look at x-rays where a patient had previous surgery before commencing treatment. He said that this was not difficult and that if the x-rays were unavailable for some reason, he would take his own. He could see no evidence that this occurred before Dr. Maloney began treatment. 179 Further, Dr. Conway criticized the history recorded by Dr. Maloney because he saw no reference on the chart to Mrs. Reid having suffered from chronic periodic low back pain. He said this was an important ele- ment of her history as it could suggest she suffered from an instability in that area. 180 Lastly, Dr. Conway was critical of the history recorded by Dr. Malo- ney because there was little documentation on Mrs. Reid’s chart respecting the mechanism of the injury she had suffered when she caught her grandchild. Dr. Maloney said, as well, that there is certain provocative testing that could be done to see if the injury mechanism is the issue. He could see no evidence on the chart that this type of testing had been done. 181 Beyond his failure to record a diagnosis and to take a proper history, the other major deficiency Dr. Conway found in Dr. Maloney’s chart was with respect to diagnostic testing. In some cases, his criticism was that the chart did not adequately document the tests performed on Mrs. Reid. For example, he was critical that Dr. Mahoney did not record at what degree of leg raise, Mrs. Reid experienced pain going into her thigh in the straight leg raise test. However, Dr. Conway’s more major criticism 268 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

was that Dr. Maloney’s chart did not indicate that he had performed many of the standard diagnostic tests which Dr. Conway considered necessary in order to reach a differential diagnosis of what Mrs. Reid’s problems were before treatment. Dr. Conway first described the tests Dr. Maloney had performed on Mrs. Reid, according to the chart. He said the chart showed that Dr. Maloney had conducted a deep tendon reflexes test. He interpreted Dr. Maloney’s notes to mean that Mrs. Reid showed 50% loss of reflexes at both the patella and at the Achilles tendon. It was Dr. Conway’s opinion that this was a worrying result in someone with Mrs. Reid’s history and would cause him to lean towards a diagnosis of disc involvement. Dr. Conway said he could also see from the chart, that Dr. Maloney had also carried out a sensation test and called it reassuring that Mrs. Reid did not appear to have any loss of sensation in her legs when she first saw Dr. Maloney on March 9. However, Dr. Conway said that this test, in and of itself, did not rule out discal involvement. He also noted that Dr. Maloney had Mrs. Reid do a heel/toe walk and his chart notes indicate that it was within normal limits. He said this test did not indicate a disc problem. However, Dr. Conway could see no evidence on the chart that any other tests were done by Dr. Maloney although in cross examination he agreed that Dr. Maloney may also have done a dermatomal test. 182 Dr. Conway was not asked specifically whether or not the testing completed by Dr. Maloney was sufficient to enable an appropriate diagnosis to be made of Mrs. Reid’s back problems. Nonetheless, viewing his evidence as a whole, it was clearly Dr. Conway’s view that the tests completed by Dr. Maloney were insufficient, given Mrs. Reid’s presentation, to properly diagnose her and that further tests were warranted before treatment commenced. 183 In his written report, Dr. Conway named numerous other tests he said could have been done on Mrs. Reid to aid Dr. Maloney in ruling out or confirming whether the problem she had was a disc problem. It was Dr. Conway’s opinion that Dr. Maloney completed very few of the standard tests that he ought to have completed. He considered Dr. Maloney’s examination to be below standard as a result and his opinion was that Dr. Maloney did not properly diagnose Mrs. Reid before he commenced treating her. Until the tests were done and current x-rays obtained, it was Dr. Conway’s view that only conservative palliative therapy should have been attempted. Reid v. Maloney D.C. Read J. 269

184 To sum up, it was Dr. Conway’s opinion that given Mrs. Reid’s history and her presenting symptoms, it was of the utmost importance to rule out discal involvement before beginning treatment. In was his view, based upon his review of the chart, that Dr. Maloney had not recorded a sufficient history, done sufficient tests, or obtained sufficient other information such as the x-ray results to enable him to rule out discal involvement before he began treatment. 185 In cross examination, it was pointed out to Dr. Conway that the Glenerin Guidelines do not require specific diagnostic tests to be carried out and that a decision respecting which diagnostic tests to perform is a matter of clinical judgment. He agreed. However, as Dr. Conway pointed out in re-examination, while the Guidelines do not specifically mandate that a chiropractor diagnose a patient before commencing treatment, they do specify that even “[i]n the absence of a clear diagnosis a working diagnosis or a clinical impression must be made and communicated to patient and reported prior to treatment”: Glenerin Guidelines, c. 7. 186 The Guidelines also say this: “A careful examination is ... necessary to make a correct diagnosis. Responses to pertinent historical queries suggest how the examination should be planned, what course it should take, and what areas may require special consideration.” The Guidelines also say that a review of the literature indicates that one of the three goals of the initial clinical examination is “to complete a thorough examination, and determine whether or not the patient needs to be referred for additional diagnostic procedures.” 187 In cross examination, Dr. Conway also agreed that there was no specific examination methodology or history taking methodology mandated either by the Alberta College of Chiropractors or by the Chiropractic As- sociation. However, he said that methodologies for doing a proper examination and taking a proper history were taught at chiropractor college and that unless the chiropractor takes and passes examinations including those which test these skills both from the college in which they are en- rolled and in the Board examinations, he or she cannot practice in Alberta. 188 Dr. Conway commented, as well, that at Mrs. Reid’s second visit on March 10, her chart indicates a new symptom — spasm. He said that if he were the treating chiropractor of a patient who showed a new symptom such as spasm after initial treatment, he would want to determine exactly where the spasm was and do further tests before offering further treatment. He did not see from the chart that Dr. Maloney had done this. 270 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

189 Dr. Henderson gave expert evidence for the defence respecting the adequacy of the diagnostic process. 190 It was Dr. Henderson’s opinion, from his review of Dr. Maloney’s chart, that Dr. Maloney did properly diagnose Mrs. Reid at the first visit with lumbar strain, and sacroiliac joint dysfunction. He pointed to the notation in the upper right-hand corner of Mrs. Reid’s chart, which had been identified by Dr. Maloney as recording his diagnosis. Dr. Hender- son interpreted the symbols as recording a diagnosis of lumbar strain and sacroiliac joint dysfunction. Dr. Henderson said, further, that the diagnosis accorded with that made by Dr. Zalasky on March 7 and by Dr. Gray on March 13. Specifically, Dr. Henderson noted that Dr. Gray’s diagnosis on March 13 was made on the basis of the straight leg test that he performed on Mrs. Reid and said the results were consistent with those recorded by Dr. Maloney. It was Dr. Henderson’s opinion, as well, that Dr. Maloney appropriately changed his diagnosis on March 13, to central canal stenosis and L5-S1 disc involvement (bulge). In cross examination, however, Dr. Henderson agreed that he had not considered that Mrs. Reid would have been taking Percocet when she was seen by Dr. Gray on March 13 and that might have affected test results as the drug likely lessened the pain she would otherwise have felt when raising her legs. 191 He also agreed, in cross examination, that a chiropractor must make a diagnosis that is both consistent with the symptoms presented by the patient and which rules out other possible reasons for those symptoms. He agreed further that this was because of the need to consider the possibility that any treatment plan might harm the patient and agreed that, for someone considering doing a spinal manipulation such as SMT, correct diagnosis was even more important than it would be for a physician, for example, who was not planning to do any active manipulation. 192 When asked whether a disc problem was a contraindication to chiropractic treatment, Dr. Henderson said that a prudent chiropractor does want to make sure that the disc is not involved by performing tests that are available to establish that. He said, however, that the only definitive way to know the nature of a disc problem is with an MRI. He said that just because a patient with disc protrusion does have pain, dysfunction and range of motion difficulties, the diversified high-velocity, low-amplitude specific adjustment, which was the type of adjustment done on Mrs. Reid’s back by Dr. Maloney, is not listed as contraindicated Glenarin Guidelines. Counsel for Dr. Maloney then quoted to him from the Guide- lines on page 141 where it says “In most cases of lumbar disc herniation, Reid v. Maloney D.C. Read J. 271

the effect of manipulation is to help relieve back pain; to allow for improved ambulation and thus offer greater comfort to the patient.” and later: Manipulation for lumbar disc herniation when appropriately applied is a safe treatment in cases where there are no signs of increasing neurological deficit or cauda equina syndrome [emphasis added] 193 It was Dr. Henderson’s view that the Guideline restrictions did not really apply to Mrs. Reid since she had not been diagnosed with anything other than lumbar strain/sprain. In respect to the question about whether spinal surgery was a contraindiction to performing a diversified high-velocity, low-amplitude specific adjustment, Dr. Henderson again quoted from the Guidelines: “Post-surgical joint or segments with no evidence of instability are not a contraindication to high-velocity thrust procedures but may represent a relative contraindication depending on clinical signs.” [emphasis added]. He said that while a chiropractor should not treat a back surgery patient right after surgery, if surgery had occurred 12 and 16 years prior to the appointment (as was the case with Mrs. Reid), an adjustment would not be contraindicated. He was then asked specifically about the Guideline provision bolded above and said that clinical signs included the response to previous treatment. 194 In his first written report, Dr. Henderson did not specifically address the issue of whether the testing that Dr. Maloney had recorded as being done in Mrs. Reid’s case, was sufficient to enable an appropriate diagnosis. However, in his rebuttal report, Dr. Henderson specifically outlined the tests that, in his opinion, Dr. Maloney had charted as being completed and commented that these tests were “adequate enough to determine discal involvement.” It was also Dr. Henderson’s view that many of the tests suggested by Dr. Conway were essentially repetitive and would not give much new information. As far as Dr. Henderson was concerned, Dr. Maloney did the priority tests and these were sufficient. 195 Dr. Henderson’s opinion was that Dr. Maloney’s treatment of Mrs. Reid would not have changed even if he had reviewed the x-rays before treating her so, although it could be argued that he should have obtained and reviewed the x-rays before commencing treatment, it made no difference in this case. In Dr. Henderson’s view “[t]here [was] no added clinical information on the X-rays that would contraindicate Dr. Malo- ney’s treatment as described.” 272 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

196 It was also Dr. Henderson’s opinion that Dr. Maloney obtained an adequate history to enable him to make a diagnosis. 197 He agreed, in cross examination, that it would be helpful for the chiropractor to have information about the previous spinal surgeries where a chiropractor was considering doing spinal manipulation on a patient with a history of spinal surgery. He said he would not particularly consider an investigation of the potential weakness of a disc or a back just because the patient had had previous back surgery, adding the caveat “unless it was something that the patient had concern over, presented to the office and said, “Listen, I’ve got prior surgeries, I’m not sure how strong my disc is, and put the questions to me like that”. He agreed as well that he would want to know about previous incidences of lower back pain in considering treatment options for a patient. 198 Dr. Henderson was asked a number of questions about charting of test results and agreed that a prudent chiropractor should chart the level of leg raise at which pain was felt into the thigh. He also agreed that it was good clinical practice to record both positive and negative or normal test results when charting results of testing done, after the Glenerin Guide- lines provision which specifically says this was pointed out to him in cross examination. 199 On the subject of recording of a diagnosis and treatment plan, Dr. Henderson was referred, in examination in chief, to SP 10 of the document called Standards of Practice, which reads as follows: The patient clinical record will clearly and completely demonstrate that the clinician has: elicited and recorded an appropriate case history; performed and recorded an appropriate physical examination and other relevant investigations; derived and recorded a diagnosis; derived and recorded an appropriate treatment plan, consistent with the diagnosis and congruent with a treatment protocol taught at a CCE accredited chiropractic institution, (or technique systems approved by the Council/Registrar) 200 Dr. Henderson’s opinion was that this provision does not require that a chiropractor have recorded a diagnosis prior to commencement of treatment. 201 Dr. Lavoie also reviewed Dr. Maloney’s chart. It was his opinion, based on the chart, that Dr. Maloney did not consider the possibility of Reid v. Maloney D.C. Read J. 273

disc herniation as the cause of Mrs. Reid’s pain when he first examined her on March 9.

Failure to Properly Diagnose -Findings of Fact: 202 Dr. Maloney’s chart for Mrs. Reid was less than ideal. His recorded history provided little detail. For example, he did not indicate what type of pain Mrs. Reid described and there is little information about the mechanism of the injury she complained of. 203 I do not accept Dr. Maloney’s evidence that there were a number of diagnostic tests he performed on Mrs. Reid that he did not chart because it was his standard practice not to record negative results except in the case of neurological tests. For example, Dr. Maloney testified that he performed the static palpation and the Yeoman’s test on Mrs. Reid and the results must have been negative and that is why there is nothing on her chart to indicate that these were done. 204 My impression of Dr. Maloney’s evidence was that his classification of what was a neurological test versus what was a non-neurological test was quite arbitrary. In his report, Dr. Conway described the Yeoman’s test as “a standard orthopaedic test for the determination of a sacroiliac joint lesion”. Dr. Maloney did not disagree. If that is correct, and there was no evidence to the contrary, I cannot understand why this test would not be termed a neurological test and, if so, given what Dr. Maloney says was his standard practice, why the results would not have been recorded, whether or not they were positive. 205 Dr. Maloney bases his testimony about what tests he performed on Mrs. Reid on his standard practice and his chart entries because he has no independent memory of her first or second visit. In other words, there is no evidence, other than what Dr. Maloney says was his standard practice, that such unrecorded tests were performed. Dr. Maloney did not testify that his standard practice was his invariable practice and I note that Mrs. Reid recalls Dr. Maloney doing only a few diagnostic tests on her first visit and recalls almost none being done on her second visit. There is not sufficient evidence for me to accept that Dr. Maloney did any of the tests he said it was his standard practice to do but not to record unless they were positive. 206 In particular, I do not accept that Dr. Maloney performed the test termed a heel/toe stand. In his testimony, Dr. Henderson particularly referenced this test explaining “if somebody has a severe nerve compression.. they may have a floppy foot. They may not be able to stand on 274 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

their toes [so Dr. Maloney conducted this test to ensure] that there wasn’t any motor deficit in the lower limbs”. However, there is no evidence that Dr. Maloney did, in fact, perform this test and I conclude that Dr. Hen- derson was in error in thinking that he had. 207 As well, some of Dr. Maloney’s evidence in respect to testing he had done was contradictory. For example, Dr. Maloney said in direct examination that because there was no recording of the results of the dermatomal test on Mrs. Reid’s chart, this meant that Mrs. Reid’s dermatomal testing was negative. However, as was pointed out to him in cross examination, what he had written in a letter to Mr. and Mrs. Reid in March of 2000, sent at their request seemed to contradict this. In the letter he said: “the area of numbness was localized mostly to her left buttock and thigh,...”. Dr. Maloney explained this inconsistency by saying he thought what was in the letter was a mistake, made in the rush to put the letter together. He also said, however, that the contents of the letter was his recollection at the time. 208 In the result, I conclude that Dr. Maloney conducted only those tests upon Mrs. Reid for which he charted the results. 209 Nor do I accept that Dr. Maloney followed his standard practice after treatment on a second visit by a patient of having the patient stand up after the treatment and repeating the range of motion testing to check for how well the treatment had been tolerated. Mrs. Reid says he did not and left while she was still on the examination table. Dr. Maloney was in a hurry to get to the hockey game on March 10. I accept Mrs. Reid’s evidence over that of Dr. Maloney. She has a specific recall of the appointment; he does not. There is nothing on Dr. Maloney’s chart to indicate that any testing was done and he was in a hurry. What would otherwise be standard practice may not occur when someone is in a rush. 210 However, I do accept the evidence of Dr. Maloney that Mrs. Reid did not show any marked reduction in deep tendon reflexes at either the patella or in the Achilles tendon region, when he tested these at her first appointment, notwithstanding that Dr. Conway understood his chart to indicate that Mrs. Reid showed a 50% deficit. Given Dr. Conway’s evidence, it may be that Dr. Maloney did not use the standard method of charting these test results. However, in direct evidence, Dr. Maloney explained what he meant when he recorded the numbers “2/4” as being Mrs. Reid’s reflexes, it was his method of recording normal reflexes, not as Dr. Conway read it, an indication of a 50% reduction in normal reflexes. When this evidence was put to Dr. Conway, although he ex- Reid v. Maloney D.C. Read J. 275

pressed surprise at Dr. Maloney’s method of recording these results, he did not indicate that the notation could not mean what Dr. Maloney said it did. Further, the test result as explained by Dr. Maloney is consistent with other evidence. Mrs. Reid was examined on March 7 by Dr. Zalasky and his chart notes do not record any such deficit. 211 Dr. Maloney did not obtain or read the x-rays of Mrs. Reid’s lower back that were taken on March 7, 2000 before he diagnosed her or commenced treatment. I note that the report of this x-ray result indicates that the radiologist reading the x-ray was of the opinion that Mrs. Reid had degenerative disc disease at the L5-S1 level of her spine because of intervertebral disc space narrowing and hypertrophic changes at that same level. However, based upon the evidence of both Dr. Henderson and Dr. Lavoie, I am satisfied that the limitations of x-ray imaging are such that an x-ray would not show any disc bulging or protrusion even if that had existed at the time. I, therefore, accept the evidence of Dr. Henderson. The x-ray results would themselves not have aided Dr. Maloney in his diagnosis. 212 I prefer Dr. Conway’s opinion evidence, however, as to whether Dr. Maloney could and should have obtained further information respecting Mrs. Reid’s previous surgeries before commencing treatment. While Dr. Henderson was of the view that such information was not necessary except in specific circumstances, Dr. Henderson’s evidence was hardly a ringing endorsement of Dr. Maloney’s testing procedure. He merely said that Dr. Maloney did the “priority” tests and called his testing procedure “sufficient”, offering few specific reasons for why he concluded this was so. On the other hand Dr. Conway gave a number of sound reasons for his opinion that such information would be helpful and even necessary if a chiropractor is considering doing spinal manipulation of a patient, in the same general area of the previous surgery. 213 On the evidence of Dr. Conway, it is also apparent that there were a number of diagnostic tests available to chiropractors which Dr. Maloney did not do and which might have aided him in his diagnosis of Mrs. Reid’s presenting complaint. 214 While the recorded diagnosis on the chart was cryptic, I am satisfied based upon the evidence of Dr. Maloney and of Dr. Henderson that Dr. Maloney did diagnose Mrs. Reid with a lumbar sprain/strain and that he did record this diagnosis on Mrs. Reid. However, as he admitted, Dr. Maloney did not record a differential diagnosis. 276 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Failure to Properly Diagnose — the Law and Application of the Law to the Facts: 215 The standard of care imposed upon a practitioner, including a chiropractor, applies not only to the treatment given a patient but also to his diagnosis: Gibbons v. Harris, [1924] A.J. No. 49 (Alta. C.A.). 216 A physician is under a duty to exercise reasonable care, skill and judgment in coming to a diagnosis. Implicit in the duty to diagnose is the requirement to take a careful history. Picard and Robertson put it thusly at 300-1: Having undertaken the care of a patient, a doctor is under a duty to make a diagnosis, and to advise the patient of it.... The duty to diagnose is not as onerous as it might seem. A doctor is not expected to be infallible, only to exercise reasonable care, skill and judgment in coming to a diagnosis. If this is done, the doctor will not be held liable even if the diagnosis is mistaken. 217 This statement (and precursors to it from earlier editions) has been accepted in a number of cases, including Rose v. Dujon (1990), 108 A.R. 352 (Alta. Q.B.), in which Fraser, J. (as she then was) made the following comments: ...[I]t does not automatically follow that the mis-diagnosis of a patient’s condition is tantamount to negligence on the part of the physician. However, such misdiagnosis will be regarded as an indication of negligence if the physician failed to resort to whatever reasonable tests, equipment or assistance were available to him. 218 As Fraser, J. also noted in Rose, “[i]mplicit in the duty to diagnose is the duty to take a careful and thorough history”. This proposition is also supported by Picard and Robertson, who comment as follows at p. 302-3: ..a thorough history, proper examination, appropriate tests, and con- sultations with colleagues and specialists where necessary, are clearly basic to a proper diagnosis. A reasonable doctor should also heed a patient’s complaints during treatment for they may be harb- ingers of change in condition. 219 Although Dr. Maloney’s charting was deficient and it appears the history he took from Mrs. Reid was incomplete and although he failed to obtain her x-ray results when she first came to see him and before he commenced treatment, it is not alleged that he breached his duty of care by taking an inadequate history or not adequately charting his findings or treatment. Such evidence is only relevant to the issue if it goes to prove that Dr. Maloney did not adequately diagnose Mrs. Reid before commencing treatment. Reid v. Maloney D.C. Read J. 277

220 Dr. Maloney’s diagnosis of Mrs. Reid was consistent with that of both Dr. Zalasky on March 7 and of Dr. Gray on March 13. Dr. Lavoie, as well, said in his evidence that he agreed with the diagnosis made by Dr. Zalasky based upon his review of Dr. Zalasky’s chart. In my view, based upon all of this evidence, Dr. Maloney cannot be faulted for the provisional diagnosis he made of Mrs. Reid’s back problem on March 9, 2000, whether or not it was correct. He exercised the requisite reasonable care, skill and judgment in coming to his diagnosis and was not negligent. 221 However, I accept the opinion evidence of Dr. Conway and of Dr. Henderson in cross examination that where, as was the case here, a chiropractor intends to treat a patient by manipulating her spine, the duty of reasonable care extends beyond merely making a provisional diagnosis. Where a chiropractor intends to actively treat a patient using SMT, and where a patient has a history of discal back surgery, a chiropractor has a duty to rule out disc problems as a reason for the symptoms presented by the patient before commencing anything but conservative palliative treatment such as application of ice, because of the risk of harm to the patient. 222 Mrs. Reid was in pain and looking to Dr. Maloney for help at her first appointment on March 9. Nonetheless, there was no urgency in treating Mrs. Reid. I accept Dr. Conway’s opinion that where a patient with a history of previous back surgery is unable to provide complete information about the type of surgery, it was imperative to obtain this information from other sources before treatment commenced. In my view, Dr. Maloney’s failure to obtain details of Mrs. Reid’s previous back surgeries, coupled with his failure to complete more extensive testing and examination, resulted in his not having enough information to enable him to rule out lumbar disc herniation as the cause of Mrs. Reid’s pain. 223 Dr. Maloney failed, further, to mention on the chart that Mrs. Reid had suffered from periodic low back pain. Mrs. Reid had underlined ‘back ache’ on the patient history form she completed before first seeing Dr. Maloney. There is no evidence that he questioned her about this or had any real idea of what Mrs. Reid’s history of episodic back pain had been. 224 Given these various gaps in the information he had, Dr. Maloney could not and did not rule out the possibility of disc involvement on March 9, 2000. He could not have known much, if anything, about the general health of Mrs. Reid’s back. He did not know that Mrs. Reid had a history of degenerative disc disease and osteoarthritis and so could not 278 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

have known if she was predisposed to spinal stenosis or disc injury. I consider it significant that Dr. Maloney did not record discal involvement as a differential diagnosis on Mrs. Reid’s chart. Nor does his chart say anything about a finding of a history of degenerative disc disease or osteoarthritis. While Dr. Maloney said in evidence that his differential diagnosis was discal involvement, he has no memory of his first visit with Mrs. Reid and absent something on the chart to indicate that the question of discal involvement was on his mind, I am not prepared to accept that this was his differential diagnosis and he considered this risk or the risk that Mrs. Reid had a history of degenerative disc disease and osteoarthritis in his treatment of Mrs. Reid, simply on the basis of what his standard practice was. 225 The lack of information did not allow Dr. Maloney to rule out discal involvement for the symptoms experienced by Mrs. Reid on March 9; this lack of information also disabled him from properly evaluating the risk of treating Mrs. Reid. Thus, in my view, it was negligent of Dr. Ma- loney to commence treatment of her, as he did on March 9, 2000. I accept the evidence of Dr. Henderson, that even obtaining further information would not have permitted Dr. Maloney to make a definitive diagnosis of discal involvement unless he sent her for an MRI. However, it would have provided him with much information about the general health of Mrs. Reid’s spine and would have allowed him to better assess the risks of treatment and explain these to Mrs. Reid. 226 Dr. Maloney’s initial primary diagnosis, that Mrs. Reid suffered from a sprain/strain of the back, was not negligent, given her symptoms and the information Dr. Maloney had. However, I conclude that Dr. Maloney was negligent in not attempting to obtain further information in order to enable him to rule out discal involvement or to determine the general health of Mrs. Reid’s spine. In failing to do so, Dr. Maloney did not exercise reasonable care, skill and judgment in considering a differential diagnosis and in attempting to rule it out. He also did not exercise reasonable care, skill and judgment in determining and evaluating the risks that treating someone with a history of degenerative disc disease and osteoarthritis would present. 227 I am satisfied, further that it was even more risky for Dr. Maloney to continue to treat Mrs. Reid on March 10 after she reported a change in symptoms that is spasming (left thigh and postero-lateral calf) after her first treatment. Again, I accept Dr. Conway’s evidence in this regard. Reid v. Maloney D.C. Read J. 279

5. Causation — Was Dr. Maloney’s treatment of Mrs. Reid the actual and legal cause of her injuries? 228 The Plaintiff, Marlene Reid, alleges that the Defendant Dr. Maloney’s treatment of her in March of 2000 caused the disc herniation at the L4-S5 level that she had to have corrected by two surgeries later in 2000.

Causation - Evidence: 229 Mrs. Reid saw Dr. Maloney three times. March 9, 10 and 13, 2000. He treated her on all three occasions. 230 Mrs. Reid said she felt somewhat better after her first treatment by Dr. Maloney. However, problems started to develop when he treated her the second time on March 10, 2000. It was her evidence that when Dr. Maloney pushed on her hips on March 10, she felt immediately as if the air had been pushed out of her lungs and felt a hot burning pain in the middle of her lower back just above her tail bone. She said she gasped and looked over at him, asking him what happened. He told her that he had ‘cracked’ her lower back. 231 Dr. Maloney’s evidence, based upon his chart, was that the adjustment he did on Mrs. Reid on March 9 was an attempt to release the fixation of her left sacroiliac joint and restore normal mobility. He said this must have been a successful manipulation because there was nothing recorded on Mrs. Reid’s chart to indicate otherwise. 232 Dr. Maloney also gave evidence based upon the chart and his standard procedure with reference to Mrs. Reid’s second visit on March 10. From the chart it appeared to him that Mrs. Reid indicated that she had posterior lateral left thigh and calf spasms on the night of March 9-10 after her first adjustment. His chart notation was “[l]eft thigh and calf (post/lat) spasms at night”. If these spasms were transient and not present at the appointment Dr. Maloney said he would not have been particularly concerned. From the chart, he did not think that Mrs. Reid reported that these spasms were still present at the time of her second visit. However, as was pointed out to him in cross examination, in his March 24, 2000 letter to Mr. and Mrs. Reid, Dr. Maloney wrote that Mrs. Reid had reported on March 10 having suffered spasms for a good part of the night. As well, Dr. Maloney did not disagree that he had told Dr. McAuley, the investigator for the College of Chiropractors, “[w]ith regard to Mrs. Reid’s question about her left leg and calf being in spasm, Dr. Maloney states that this was more of a comment on what he found from an objec- tive sense, not necessarily what she reported subjectively”, as reported by 280 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Dr. McAuley. Dr. Maloney agreed that if a patient reported spasms for a good part of the night and they were objectively present when he examined her the next day, these could not be called transient or transitory. 233 Dr. Maloney described Mrs. Reid’s SMT treatment at the second appointment. The purpose of the treatment was to try to restore normal movement to the joints that the L5 and L4 vertebrae are in contact with by using a side push type of manipulation. He said he told Mrs. Reid that he was basically going to do the same thing as he had the day before except that he was going to adjust a few more joints. He said he pushed both the L4 and L5 vertebrae processes in Mrs. Reid’s back from both the left and right sides in an attempt to move them. His chart notes indicate that after these manipulations, he had Mrs. Reid roll onto her back and he stretched her buttock musculature: the gluteus and piriformis muscles. He said this was noted on his chart as “PNF B/L, glutes/piriformis”. He explained that PNF stands for proprioceptive neuro-facilitation and described this as a type of facilitated stretching. He said that he would have to assume that these manipulations went well because nothing negative was noted. In reference to Mrs. Reid’s comment that he told her he had ‘cracked’ her back, Dr. Maloney said that he would never use such a term in relation to treatment since it had a pejora- tive connotation in chiropractic circles. 234 The entire chart notation for March 10 reads as follows: L thigh & calf (post/lat) spasms @ night. MP-L5PR, L4 PR, L4 PL-SPP, LPI/RAS-SPP. PNFB/L gluts/ perform (No L/S belt yet) 235 Mrs. Reid’s evidence was that, Dr. Maloney told her, after the second treatment, that she would feel some discomfort, stiffness or soreness, because the back had to reposition itself. She said he advised her to continue to use ice. He then gave her his business card after putting his home phone number on the back. March 10 was a Friday and Dr. Maloney invited her to call him over the weekend if she needed him. She said he then left to get to the hockey game while she was still on the chiropractic table. 236 Immediately after the treatment, Mrs. Reid said her lower back and legs felt weak and the burning pain in her lower back continued. She also had pain in her right hip. She got off the chiropractic table but described herself as ‘waddling’ out to the car because her hip and back hurt and her legs and back felt so weak. Her car has a standard transmission and Mrs. Reid v. Maloney D.C. Read J. 281

Reid said that she drove home in second gear because she could not push in the clutch. 237 When she got home, her husband was already there. Her evidence was that she told him she was not feeling well and that she needed a hot bath and a couple of Tylenol. Mr. Reid did not think his wife was walk- ing normally when he saw her and said she seemed to be limping. He helped her into the bath. Mrs. Reid said the muscles in her right thigh were in spasm while she was in the bath tub. She could see them moving. Mr. Reid said he also thought he saw the muscles in the back of Mrs. Reid’s thigh and in her calf moving when she was in the bathtub. 238 When she got out of the bath, Mrs. Reid’s evidence was that she lay down and went to sleep. She felt that the spasms lessened when she lay down. She thought she slept all night but said her husband told her that she tossed and turned. She did recall her leg hurt and she felt as though the mattress was not comfortable during the night. Mr. Reid confirmed that his wife had had a hard time falling asleep that night and did not sleep well, in his opinion. 239 The next morning, Saturday March 11, Mrs. Reid recalled moving to a reclining love seat with her husband’s help after she got out of bed. He had to work that day but got her more Tylenol and an ice pack as well as some coffee before he left. She said her hip continued to feel sore and the muscle spasms in her right thigh continued. 240 Mr. Reid described helping his wife to get back into the bathtub that morning before he left for work. According to him, Mrs. Reid complained that the little toe on her right foot felt like it was broken. He felt her foot and said it felt hot. Mr. Reid agreed that when he left for work, he left her on the love seat with the remote control, some Tylenol and instructions to call him if she needed help. He knew that his stepdaughter Kerrie would come later that day to help her mother to obtain the belt that Dr. Maloney had recommended. 241 Mrs. Reid testified that her daughter did call and she and her daughter agreed to go shopping. Mrs. Reid said she did this because she felt the need to walk, notwithstanding her pain. Her daughter, who was eight months pregnant at the time, had to help Mrs. Reid to put on her shoes and help her out to her van and Mrs. Reid said she felt stiff and sore and her hip hurt. They went to a supermarket where her daughter got a grocery cart for herself and one, as well, for Mrs. Reid who said she asked for one because she thought she could use it to help her walk. She wanted to pick up the belt that Dr. Maloney had prescribed for her and so 282 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

went first to the pharmacy. She was unable to obtain the belt but continued shopping. 242 A short while later, having gone down one or two grocery aisles, Mrs. Reid said her right leg gave way. She said she lost feeling in the entire leg from the buttock to the hip and had to hold onto the grocery cart to keep from falling. They did not finish their shopping and simply took the carts to the door and left them there. Mrs. Reid’s daughter helped her back into the van and took her home. Mrs. Reid said that she was able to lock the leg so that it would hold her weight and this enabled her to get back into the vehicle. Mrs. Reid estimated that they spent about one half hour in total in the store. After taking her mother home, the daughter went to another store and got the recommended belt. 243 Mrs. Reid testified that the pain in her right hip continued when she got home and it remained very serious. Her daughter got her an ice pack and some Tylenol 3s. After returning from shopping, Mrs. Reid said she did nothing else but sit on the recliner with an ice pack until her husband got home. After that, she got back into the bath tub again. She said that her entire right leg was in spasm by then and her hip was very painful. Notwithstanding the pain she was in, she did not try to call Dr. Maloney; nor did she call the Grandin Clinic emergency after hours number or call or go into the emergency department of the local hospital. 244 That evening, according to her husband, Mrs. Reid was still in much pain and still unable to walk without assistance. She was no better the next morning and, again, Mr. Reid had to work. He said he called Dr. Maloney, at the home number Dr. Maloney had given to Mrs. Reid, but had to leave a message. Dr. Maloney did not call back. Mr. Reid cut his work short and was home by noon. He thought his wife’s condition had deteriorated. He tried to call Dr. Maloney again but, again, got the machine. He says he described in the message he left what Mrs. Reid had been going through and told Dr. Maloney they would be at his office at 9:00 the next morning. 245 Mrs. Reid’s evidence was that she slept on the floor on the night of March 11. The next morning, she was no better but again felt the need to walk. She got dressed and she and her husband went out but got only as far as the next door neighbour’s before they turned back because she was unable to walk further. On her evidence, other symptoms that she suffered on Sunday, included an inability to void or have a bowel movement. She felt that her hip, her outer thigh and her groin were numb. She tried to go to bed on the Sunday night but found it too uncomfortable and Reid v. Maloney D.C. Read J. 283

spent most of the night on the recliner in the living room. She recalled that her husband left a number of telephone messages for Dr. Maloney with the last one telling Dr. Maloney that they would be at his office on Monday morning. 246 Monday morning, March 13, Mr. Reid said he helped Mrs. Reid get dressed and drove her to Dr. Maloney’s office. He felt he had to support her to get out of the car and walk into Dr. Maloney’s office. Dr. Maloney was waiting for them and helped him to get Mrs. Reid into one of the treatment rooms. He asked what happened and Mrs. Reid explained about the pain in her back and her leg and told him that the little toe on her right foot felt like it was broken. 247 On Mrs. Reid’s evidence, her right leg, hip and the right side of her back remained very sore on Monday when they went back to Dr. Malo- ney’s office. She said Dr. Maloney was in the reception area when she got there and he and her husband helped her into an examination room and onto the examination table. She did not recall that Dr. Maloney conducted any further tests but in cross examination agreed it was possible he did although she did not remember this. 248 Mrs. Reid’s memory of the treatment that Dr. Maloney administered on March 13 was as follows. He put wedges under her hips while she was lying on her back. He told her that he was repositioning her spine. He then put his hands on her hip bones while the wedges were under her hips. She felt her back snap back and felt the table drop beneath her accompanied by a sound she described as a “swish” when the table moved. After Dr. Maloney did this once he told her that it had not worked, re- positioned the blocks and did it again. In cross examination, she agreed however that it was possible that, Dr. Maloney might have been simply trying various positions with the wedges to find one that was comfortable and did not repeat the treatment. However when counsel for Dr. Maloney suggested that pressure was applied only once, Mrs. Reid was adamant, that he had pressed down on her hips twice and she felt pain. Mrs. Reid agreed however when Defence Counsel suggested that the pressure applied could have been light. After Dr. Maloney performed this procedure Mrs. Reid said her pain was intense. 249 Mr. Reid also described the treatment administered to Mrs. Reid on 1 March 13. He described the wedges as being small and about 2 /2 inches in height and said variously that the wedges went under Mrs. Reid’s hips or were placed on her ‘sides’. He said Dr. Maloney pushed down on Mrs. Reid’s hips after placing the wedges and he heard a “swooshing” sound 284 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

and saw her hips move. He said Mrs. Reid was crying by this time and yelling that it hurt. Dr. Maloney repeated the procedure, according to Mr. Reid, replacing the wedges and pushed down again. Again Mr. Reid heard the “swooshing” sound but this time he described the movement as faster. It was suggested to Mr. Reid in cross examination that Dr. Malo- ney only did this procedure once. Mr. Reid adamantly disagreed. He did not recall that Dr. Maloney explained what he was going to do before doing it, but does recall Dr. Maloney telling him that he thought Mrs. Reid was going to be fine. 250 Mr. Reid said he would not allow Dr. Maloney to repeat the procedure a third time because his wife was in so much pain. He told Dr. Maloney, she could not take any more. 251 Dr. Maloney testified about the treatment on March 13, as well. He said that the chart indicated she complained of bilateral leg pain beginning Saturday and, at the appointment, told him that her left side felt fine but her right leg was numb and she had a tingling pain down the post lateral thigh, calf and toes and an increase in muscle spasm in her right thigh and calf all weekend. According to Dr. Maloney, the chart also indicated that Mrs. Reid told him that she had experienced leg pain since her last visit on Friday, March 10. 252 Dr. Maloney had some memory of Mrs. Reid’s March 13 appointment since it was, in his words, unusual. He recalled that Mr. Reid was with her and they arrived about 9 am. He testified, Mrs. Reid reported that she had some changes over the weekend. She told him that her foot and leg strength felt normal and she had the strength to climb stairs. However, she reported that she could not feel the step under her foot. She told him, as well, that she now had the lumbo-sacral belt and it did decrease the pain although she also said that it felt too tight over the hip. Mrs. Reid also told Dr. Maloney, according to his evidence, that she had been taking Tylenol 4s all weekend but with no relief. According to his chart notes, Mrs. Reid also reported difficulty with defecation. In Dr. Maloney’s view, what Mrs. Reid reported indicated a change of the clinical presentation. It now appeared to him that Mrs. Reid might have spinal neurological problems. 253 Dr. Maloney recalled that Mrs. Reid was in quite severe pain at the appointment and had to be helped either by Mr. Reid or by both of them into one of the treatment rooms. Dr. Maloney recalled that Mrs. Reid asked if this could be fixed. He answered that he would try some gentle things to try to relax the spasm. Reid v. Maloney D.C. Read J. 285

254 Even though Mrs. Reid was in great pain, Dr. Maloney believed he did some static palpation of her lower back and a straight leg raise test, although it was not noted on the chart. The straight leg raise was noted, however, in the letter Dr. Maloney wrote to Dr. Gray that same day. Dr. Maloney said the chart shows that when he palpated Mrs. Reid’s back he found a fixation of the left and right sacroiliac joints, similar to what he had found at her previous visit. Dr. Maloney told her he would use some upholstered blocks in the gentle treatment he was suggesting. He described Mrs. Reid as being almost in a panic state because she was in so much pain but assumed that she agreed to this procedure, because otherwise he would not have gone ahead with it. 255 He described the use of the wedges and said, when properly used, the blocks are positioned with the blocks under the patient’s pelvis and the patient positioned supine. According to Dr. Maloney, the theory is that the weight of gravity “will take the pressure off the sacroiliac joints or untwist the pelvis”. Once the blocks are properly positioned, Dr. Malo- ney said he might apply some light pressure “to assist with gravity”. What occurs is “some oscillations into the pelvis to mobilize the sacroiliac joints.” He said that in the blocked position, the pelvis would be only millimetres from the table. 256 Dr. Maloney described the Thompson drop table as another means of dealing with joint fixation. The table was brought to the court room for a demonstration. Dr. Maloney described it as having a part that lifts about 1/2 to 3/4 of an inch. The patient lies prone on the table and that generally the chiropractor would apply some pressure — just enough to make the raised piece drop. The theory is that momentum puts force on the joint. He described the sound that a Thompson drop table makes when it drops as a cross between a “slam” and a “clang” rather than the “swish” or “swoosh” described by the Reids. Dr. Maloney said a chiropractor would normally use the Thompson drop table together with the blocks only for a very muscular patient such as a rugby or hockey player. He denied using the drop apparatus when he treated Mrs. Reid on March 13 although he agreed that the table on which he treated Mrs. Reid that day might have been the Thompson drop table which can also be used as an examination table without employing the drop apparatus. He agreed that he had said at discovery, however, that his only reason for saying that the drop mechanism was not used on Mrs. Reid that day was because it was not noted on the chart. 286 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

257 After her treatment with the blocks on March 13, Mrs. Reid said her hip felt like it was broken and that her pain level, which was at a 5 when she went into the clinic, was at 10 on the traditional ten point pain scale. Her husband helped her off the examining table but she could not walk and fell to her knees. She said Dr. Maloney told her that her body was in stress and that she needed to be calmed down. He showed her another high table “with a machine” and her husband helped her to lie on it. Dr. Maloney confirmed that what Mrs. Reid described was a device called a spinolator. Mrs. Reid’s evidence was that Dr. Maloney showed her husband how to work the machine, turned it on and then left. The table had rollers on it under the surface. Her understanding was that the purpose of the machine was to massage her body. However, she said she was in too much pain and after the roller had made only a couple of passes along her body, she told her husband to turn it off. Her husband helped her off the table but she still could not stand. Mrs. Reid recalls lying on the floor crying and in a foetal position when Dr. Maloney returned to the room. She said Dr. Maloney advised them to go to the emergency department of the hospital. 258 Mr. Reid’s evidence was similar. He said that Dr. Maloney helped Mr. Reid get Mrs. Reid off the first table and suggested a move to another table which Dr. Maloney said would relax her and ‘stretch her out’. He recalls that Dr. Maloney started the roller moving on the spinolator after adjusting the roller height. He then showed Mr. Reid how to operate it and left. He did not stay to observe Mrs. Reid’s reaction to the treatment. Mr. Reid said that his wife screamed in pain and he stopped the machine quickly. Mrs. Reid could not get off the table by herself and when Mr. Reid helped her off, he recalls, that she sank to the floor onto her hands and knees. He described her as panting and trying to get her breath back. 259 Dr. Maloney agreed that he treated Mrs. Ried on the spinolator table to try to relieve the spasm in her back. He adjusted it so that the roller would cover her entire spine and said that he left her husband in charge after explaining how the machine worked. He then left the room. 260 He agreed that Mrs. Reid’s spasms might have been worse after the treatment he administered on March 13. 261 Dr. Maloney advised Mr. and Mrs. Reid that Mrs. Reid may have some neurological involvement and that Mrs. Reid should be seen in Emergency. Mrs. Reid refused and said she wanted to see her general practitioner Dr. Gray instead. Dr. Maloney hand wrote a letter to Dr. Reid v. Maloney D.C. Read J. 287

Gray explaining his findings and his concerns and provided it to the Reids. 262 Mrs. Reid testified she did not want to go to Emergency because she believed that she would have to wait for hours before being seen. She wanted something done now and so said she wanted to see Dr. Gray. She recalled Dr. Maloney agreeing to write something for Dr. Gray. 263 After leaving Dr. Maloney’s office, Mrs. Reid and her husband went directly by car to the Grandin Medical Clinic. She saw Dr. Gray who examined her, gave her some painkillers and also told her to go to Emer- gency. Mr. Reid recalled this as well and said he told Dr. Gray that he would take Mrs. Reid to Emergency later that same day. Dr. Gray’s chart notes from March 13 make no mention of a suggestion that she go to Emergency. 264 Dr. Gray’s chart notes describe Mrs. Reid as arriving at the clinic with her husband, ‘hobbling’ and in a great deal of pain. They said, as well, that she was very sensitive in the right lower back and had decreased sensation in her right leg in the L5-S1 distribution. She was prescribed Oxycontin and Valium. Mrs. Reid recalled the Oxycontin and said that it was so strong that it virtually knocked her out. On her evidence, she has almost no memory of the time between seeing Dr. Gray in March and having surgery in April. 265 From the Sturgeon General Hospital records, it appears that Mrs. Reid was seen in Emergency on March 14, 2000 complaining of numbness in her right leg, buttock and foot for the past five days. The impression of the emergency physician was that Mrs. Reid had an L5-S1 disc/nerve root compression. The chart notes indicate that she refused to see the on-call orthopaedic specialist stating that she wished to see Dr. Glasgow, who had done her last surgery. Mr. Reid agreed she had refused at this visit to see Dr. Narang, the on-call orthopaedic surgeon, explaining this by saying that Mrs. Reid had much confidence in Dr. Glasgow because of her previous surgery. She was referred for a CT scan by the Emergency physician. 266 Mr. Reid recalls taking Mrs. Reid to the Emergency department of the hospital on March 13. However there is no record of this. Mr. Reid is likely mistaken. I conclude that he first took Mrs. Reid to the Emergency department the next day. 267 Mrs. Reid was, however, seen by Dr. Narang at the outpatient orthopaedic clinic at the Sturgeon General Hospital on March 17, 2000. The chart notes were admitted by agreement and Dr. Narang did not tes- 288 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

tify. They indicate that Mrs. Reid was in a wheelchair when she was seen. She was still able to straight leg raise to 60-65 degrees bilaterally but her straight leg raise was described as “guarded”. Deep tendon reflexes were present and equal bilaterally at the patella but minimally di- minished at the ankle. Dr. Narang described her as moving very slowly and reluctant to do any movement involving the lower spine. She told Dr. Narang, according to the chart notes, that she had no feeling in her right buttock, the back of the right thigh, and in the right lower leg including the fourth and fifth toes. When strength was tested on her right side, she “gave way”. Dr. Narang made arrangements for a CT scan. His diagnosis was “right sciatica, to rule out lumbar disc protrusion”. 268 Dr. Neil Roberts, a neurologist, examined Mrs. Reid on March 24, 2000. Again, his evidence was admitted by agreement and he did not testify. His opinion letter indicates that he diagnosed Mrs. Reid with an acute disc herniation causing compromise of the nerve roots on the right. By then, according to Dr. Roberts, Mrs. Reid was unable to straight leg at all without pain and, in fact, Dr. Roberts commented that she cried out during the procedure. An MRI scan which Mrs. Reid underwent on April 6, 2000 showed disc herniation at the L4-S5 level, causing marked compression of the thecal sac, particularly on the right side and a bulge at L5- S1. By April 7, when she was seen by Dr. Steinke, she had right foot drop, according to his chart. Again, Dr. Steinke did not give viva voce evidence and his written evidence was admitted by agreement. 269 In the interim, from the time she left Dr. Maloney’s office until she had the surgery, Mrs. Reid was unable to work. She described her activities as sleeping and reading only. She could do nothing else. 270 Mrs. Reid had two back surgeries in 2000. The first, on April 10, 2000. The second, on September 28, 2000, was on the same site.

Causation - Expert Evidence: 271 Dr. Zalasky diagnosed acute back strain when he saw Mrs. Reid on March 7, 2000. According to his chart, his examination revealed tenderness over the para-spinal muscles and in the lumbar region. At that time, Mrs. Reid did not apparently have any radiation of pain into her legs. Dr. Zalasky did not feel that there was any evidence of prolapsed intervertebral disc. Dr. Lavoie agreed with this diagnosis. In contrast on March 13, when Dr. Gray examined Mrs. Reid after her treatments by Dr. Maloney, she complained of numbness in the right buttock and lateral sole of her right foot. She was in a great deal of pain and was hobbling. There was Reid v. Maloney D.C. Read J. 289

decreased sensation in the L5-S1 distribution of the right leg and ankle reflexes were not present. Neither Dr. Gray nor Dr. Zalasky testified. Their chart evidence was admitted by agreement. 272 Dr. Mark Erwin, Dr. Bruce Symons, and Dr. Donald Henderson all provided expert evidence on behalf of the Defendant respecting causation of injury. 273 Dr. Mark Erwin was qualified by agreement to give expert opinion evidence on behalf of the Defendant, in the practice of chiropractic including the diagnosis and management of low back pain and lumbar disc disease; the anatomy and biology of discs, and the pathogenesis of disc disease, degeneration, and disc herniation 274 Dr. Erwin reviewed some of the diagnostic imaging taken of Mrs. Reid’s back over time. It was his opinion that Mrs. Reid had well documented degenerative disc disease and osteoarthritis before she was first seen by Dr. Maloney. Dr. Erwin said Mrs. Reid also has a congenitally small spinal canal with a ‘trefoil’ shaped spinal canal at the L5-S1 junc- tion which he said “predisposes toward some degree of spinal stenosis”. In his opinion, degenerative changes affecting the disc are “widely reported to accelerate after disc injury”. He said patients who have had previous back surgeries “may develop accelerated degenerative changes at the level of the past pathologies rendering these areas ‘unstable’ or subject to aberrant load bearing”. 275 His view was that a number of aspects of Mrs. Reid’s medical history predisposed her to disc injury, whatever the cause, in March of 2000. These predisposing factors included her degenerative disc disease, her surgeries, and the fact that she smoked. 276 His evidence in chief concentrated on describing the anatomy of a disc and the progression of changes in an aging disc which can result in degenerative disc disease. Changes in the nucleus precede changes to the annulus. The disc gradually loses its visco-elastic abilities as the nucleus becomes less able to take up water and therefore hardens, becomes fibrotic and cracks and dries out. It also loses height and is unable to stand load bearing. It can then bulge. 277 Dr. Erwin’s evidence differentiated between the normal aging process and degenerative disc disease. He named genetics and smoking as the main reasons that some people develop degenerative disc disease and others do not. Smoking impairs circulation and that accelerates the degenerative process. 290 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

278 In Dr. Erwin’s opinion trauma can play a role in disc damage but this role was not clearly understood. He cited one recently published study which concluded that every day activity over time and not trauma, was the single most common cause of degenerative disc disease. He agreed, however, in cross examination that this study had simply looked at charts of patients to see if a precipitating event had been recorded and it was on that basis that the authors had concluded that 63% of patients with disc protrusions did not identify a precipitating event. He said he was not familiar with another study cited by counsel for Mrs. Reid which, according to counsel showed almost 100% of patients with disc protrusions did have a precipitating event. Dr. Erwin could not say whether Dr. Lavoie’s opinion, that if you look carefully at the history of all patients with disc protrusions you will almost always find a precipitating event, was correct. 279 He agreed in cross examination that a determination of causation requires consideration of the temporal aspect of events as well as the sequence of symptoms, the patient’s history, any imaging that exists and the biology at work. 280 In Dr. Erwin’s opinion because Mrs. Reid suffered an acute onset of back pain after lifting her grandson, with sciatica developing over the next few weeks, “it is highly likely that she suffered a herniated disc while bending and picking up her grandson two weeks earlier”. 281 Dr. Erwin was asked to specify what factors he considered in reach- ing this conclusion. In respect to the timing and sequence, he said that he found it significant that Mrs. Reid suffered back pain after lifting her grandson, which, he understood, was not improving and was different from normal. His understanding was that this pain was severe enough to require narcotics and muscle relaxants and did not change over the few weeks between the grandchild incident and Mrs. Reid’s first appointment with Dr. Maloney. He also considered it significant that Mrs. Reid had a history of degenerative disc disease and two previous lower back surgeries — one in 1984 and one in 1988. The x-ray taken on March 7, 2000 was also significant, in his view. He said it showed boney growths on the posterior part of the spine with articular cartilage overlying the joint around fluid inside. He said there was also a loss of disc height and that told him that the discs were under “significantly increased loading”. 282 He also said that Dr. Zalasky’s statement in his chart on March 7, 2000 that Mrs. Reid’s symptoms showed no evidence of prolapsed intervertebral disc was inaccurate. In Dr. Erwin’s view, the fact that Mrs. Reid v. Maloney D.C. Read J. 291

Reid was unable to bend backwards could be evidence of an inflammation of the facet joints or a disc that protruded posteriorly. His reading of the symptoms reported by Dr. Zalasky on March 7 in comparison with those reported by Dr. Maloney on March 9 caused Dr. Erwin to conclude that Mrs. Reid’s symptoms had progressed over the few days between those two visits: she had leg pain on March 9, and Dr. Zalasky’s chart did not indicate this on March 7. 283 Dr. Erwin also said that some of the other chart notes seemed to indicate that Mrs. Reid later had fewer symptoms and no pain (at least in her left leg) and he wondered if this did not mean she was getting better even after her treatment by Dr. Maloney. He said that what it might also mean is that Mrs. Reid’s symptoms were variable. In cross examination he agreed that when he came to the conclusion that Mrs. Reid might have been improving after her treatment by Dr. Maloney, he did not take into account the rather significant analgesics that Mrs. Reid was by then taking. 284 Dr. Erwin’s opinion was that Mrs. Reid was suffering from a back injury when she saw Dr. Maloney but that it was not clear what type. He opined that the symptoms that Mrs. Reid suffered from following her second and third visits with Dr. Maloney did not necessarily mean a significant injury had occurred but may have been simply a continuation of the same progression that had begun earlier. He did say, however, that Mrs. Reid’s symptoms on Monday, March 13 showed clear evidence of nerve irritation and that based upon the symptoms she exhibited on March 14, he would be highly suspicious of a disc injury or problem. It was his opinion that the spinal manipulation that Mrs. Reid underwent at the hands of Dr. Maloney created only a negligible risk — no more than any other ordinary daily activity that Mrs. Reid had engaged in. 285 In support of his opinion Dr. Erwin pointed, in particular, to an article by Tampier, C., Drake, J., Calaghan, J. and McGill, S.,: Progressive Disc Herniation published in Spine, vol 32, No. 25, 2007, pp. 2869-2874. This article documents an experiment which subjected 16 cervical spine segments of young pigs to compressive loading for a long time period and documented the resulting changes to the discs. The experiment produced eight disc herniations and four partial herniations and the authors reached conclusions respecting the process by which these herniations occurred. They did not find ruptures of annulus fibres but instead small clefts in the annulus which allowed nuclear material to progress through them, ac- cumulating and causing delamination within each lamella rather than be- 292 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

tween the layers of the annulus. The authors of the study cautioned however, that the progression of material through the annulus may be different depending on the age of the subjects and noted that their study used a limited number of specimens and that these were from healthy young pigs. The same mechanism of degeneration may not exist for discs that are already degenerated, according to the authors. 286 It was Dr. Erwin’s view that in someone like Mrs. Reid, the sudden squirting out of nuclear material in response to pressure would be less likely than in a younger person with a healthier more gelatinous nucleus. It was his view, having looked at her June, 2000 CT scan, that Mrs. Reid’s lumbar discs were likely quite fibrotic and would not have suddenly squirted. He said, as well, that a traumatic annulus tear would tend to be very painful because the annulus is enervated. 287 Dr. Bruce Symons, also gave expert evidence for the Defendants respecting the physics of forces on spines. He postulated that the forces used by Dr. Maloney on Mrs. Reid would be about 300 Newtons based upon her weight of 130 lb. He said further that studies in the thoracic spine indicate that only 2% of the peak contact force is actually experienced by the underlying joint. Dr. Symons indicated that the forces applied to a patient in the particular manipulation performed by Dr. Malo- ney upon Mrs. Reid, that is a side posture lumbar manipulation had not been scientifically measured. However, he said his opinion was that the forces involved in a side posture manipulation would be much lower because the sacroiliac joint is a big and strong joint that would take a lot of force to move. 288 In oral evidence, he said that the amount of force applied to the bone in a chiropractic manipulation was actually a red herring because the force of the thrust goes to the bone, not on the disc itself. It is the force of the thrust that makes the bones move, which then drag the disc with it, so the amount of damage that may be caused to the disc is related to how far the disc itself moves, not to the force of the thrust. His opinion was that the force on the bone does not transfer through. 289 He said a disc is made particularly vulnerable to injury because of three combined motions of the spine: axial compression of the spine (caused by the fact that the spine is an integrated unit and bears weight from the combined effects of the mass it carries head to toe when the person is, for example standing); flexion of the disc; and rotation. Axial compression is increased when someone is carrying something. Reid v. Maloney D.C. Read J. 293

290 Dr. Symons’ opinion was that axial compression is minimized in a side posture manipulation because the patient is lying down. He said it is further minimized by the fact that the chiropractor extends the patient’s back somewhat before performing the manipulation. The patient’s back is also straight during the procedure so, in his opinion, flexion of the disc is absent. His evidence was that it was the combined effects of all three of these forces that could rupture a disc and since two of these forces were greatly reduced during a spinal manipulation, it was very unlikely that the manipulation could cause a disc rupture. 291 His evidence was, as well, that because the chiropractic manipulation occurs at a high velocity and because a disc is a visco-elastic body (like a foam memory bed) essentially the disc does not have time to change shape during the brief time that the push exerts force. 292 He did agree that if a disc was very degenerated “hanging on by a few threads”, then a chiropractic manipulation could damage it. However, he said the same thing could happen if a person with a badly damaged disc simply rotated their spine while seated to speak to someone behind them. He agreed as well that a person with a spine that had been previously operated on would be more vulnerable to damage. 293 Dr. Henderson, the third expert called by the Defence on the issue of causation, was of the opinion was that Dr. Maloney’s treatment of Mrs. Reid did not cause the discal extrusions described in the surgical record. In his report dated February 27, 2006 he said: It is difficult for anyone to pronounce that the chiropractic treatment caused any injury...The natural history of disc injuries often arise from mechanical strains such as lifting and this; combined with spontaneous, progressive protrusion and degenerative changes of disc material, may result in disc herniation... At least supported by temporal association, it is possible that the chiropractic manipulation on or about March 10, 2000 may have aggravated this condition. It is equally possible that Mrs. Reid’s activities of daily living (bending, coughing, sneezing, etc.) and the fall on or about March 11 may have similarly aggravated her lumbar disc problem. 294 Dr. Henderson agreed in cross examination that Mrs. Reid was suffering much more than simply muscle spasm on March 13 even though muscle spasm was all he mentioned in his report. He agreed as well that a chiropractic manipulation could be the trigger for a non-symptomatic disc problem becoming symptomatic. He agreed further in cross examination that the treatment done by Dr. Maloney on March 13 could exac- erbate an already existing bulged disc. He would not agree, however, that 294 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

the March 13 treatment could cause a bulged disc. He was also asked to assume in cross examination that Mrs. Reid had the symptoms she reported in examination in chief on Friday night, March 10. He agreed that if he made that assumption, the problems she reported experiencing on Saturday while shopping at Safeway were likely a continuation of the preceding problem. 295 Dr. Philip Conway and Dr. Mitch Lavoie both provided evidence respecting causation on behalf of the Plaintiff. 296 Dr. Conway defined manipulation in chiropractic terms as the application of an external force in a thrusting fashion to a particular site on the human body, either manually or by using a machine (the identified target site being the area of concern, most often the spinal column or a joint surface). The purpose of the manipulation is to restore normal function within the targeted site. He said that the theory is that by moving the joint into a particular range of motion, you can re-establish its correct normal movement patterns and re-establish normal function. 297 He added that physically some chiropractors suggest that once you hear a ‘popping’ sound, sometimes called cavitation, the treatment is successful. However, he said sometimes there is no sound and success of treatment is measured by the fact that a patient says they feel better. He said that what a chiropractor looks for is actual movement in the target site and the surrounding segments or joint segments and restoration of normal function as determined by the examination process. 298 He was also asked to describe conservative treatment in chiropractic terms. He defined it as treatment in which external measures such as ice, exercise, rest or heat are applied to the area of concern but no manipulation is applied. He added however that sometimes mobilization or pumping can constitute a conservative treatment so long as it is a very low key non-invasive type of treatment. He said conservative treatment did not include large thrusting actions into a joint surface or any action designed to produce a cavitation sound. He said, as well, that the conservative treatment protocol was passive, gentle on the area of concern and was generally a treatment used while trying to get more information before starting a more aggressive treatment. 299 Dr. Conway was also asked to explain the adjustments which Dr. Ma- loney administered at Mrs. Reid’s second appointment. He said that it appeared from the chart there had been four adjustments: the L5 lumbar vertebra, the L4 lateral process on the left and right sides, the left ilium Reid v. Maloney D.C. Read J. 295

and the right sacrum. Two of the four were similar to the adjustments done the previous day. 300 Asked to describe in particular the technique and the purpose of two of the adjustments made by Dr. Maloney on March 10, Dr. Conway first described the right L4 lateral process push. He said that in this procedure, the chiropractor makes direct contact with the spinalis process of the L4 vertebra with the intention of actually moving the L4 joint to try to decrease pain, muscle inflamation or spasm and restore normal joint motion. The second adjustment he described was the left L5 lateral process push. In this manipulation, he said the intention was to make actual contact with the left lateral process of the L5 vertebra to move it laterally in a rotational type of movement. 301 He said he would not describe the four manipulations that Dr. Malo- ney did on Mrs. Reid on March 10, 2000 as conservative treatment. 302 Dr. Conway was asked to explain cauda equina syndrome because it was mentioned as a differential diagnosis in Dr. Maloney’s letter to Dr. Gray as well as in Dr. Henderson’s report. He described it as a central disc problem at the L1 or L2 level where all of the nerves exit the spinal column. A disc problem at this level could result in the patient being unable to walk, to defecate, or to urinate and is very serious. No manipulation should be done on any patient where cauda equina syndrome was a differential diagnosis and the only appropriate course of action was to refer the patient immediately to the emergency department although emergency ancillary care is appropriate — such as lying them on their side and putting ice on the area. 303 Dr. Conway commented on Dr. Maloney’s treatment of Mrs. Reid on March 13, using the blocks to support the pelvis and the application of pressure to her hips. He said in theory this treatment is very passive. However, the technique required putting the blocks under the patient’s pelvis when they were lying prone (not supine as was described by Mrs. Reid). He said, properly administered, once the blocks were placed, the patient was simply left lying in this position for about one half hour, on the theory that the blocks, if placed properly, would encourage the spine to move in the direction you wanted it to move. 304 Dr. Mitch Lavoie, who also gave expert evidence for the Plaintiff, described the physiology of an intervertebral disc in his direct evidence, as well. He likened the annulus or covering of the disc to a tire located around the soft jelly like centre, the nucleus. He said that the annulus could tear and that such tears resulted in disc herniation. He described 296 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

three major categories of tears: a disc protrusion or bulge where there may be a tear of a few fibres in the annulus but not a complete tear. The result of such a tear is that the disc bulges into the weak area. A more serious category is a disc protrusion where a piece of disc extrudes from the annulus and gets trapped between the annulus and the ligament. This is called a sequestered disc. The most serious is a disc herniation where a piece of disc breaks free in the canal after going right through the tear of the annulus. He said you can also have combinations where, for example, a portion protrudes, a portion gets trapped and another portion gets free and goes into the spinal canal. 305 Dr. Lavoie agreed with Dr. Zalasky’s March 7 diagnosis; in contrast, he said that Dr. Maloney’s examination notes could suggest nerve root irritation on March 9. 306 The manipulation procedure which Dr. Maloney carried out on Mrs. Reid on March 9 was described to Dr. Lavoie. He was familiar with it and said that in his opinion this manipulation would create a rotational force across the lumbar spine and would increase strain across the lumbar discs. His opinion was, as well, that the symptoms Mrs. Reid exhibited on March 10 were indicative of increased nerve root irritation which could have been discal in origin. In commenting on the muscle spasm that Mrs. Reid reported she had suffered the night of March 9-10, Dr. Lavoie called it an involuntary reaction to an injury and said it was a classic symptom in someone with lumbar disc herniation. He agreed, however, that it was certainly prevalent in reaction to other problems as well, such as acute back strain. 307 The four manipulations that Dr. Maloney performed on Mrs. Reid on March 10 were described to Dr. Lavoie. He had two comments. Firstly, he questioned whether Dr. Maloney could actually tell the part of the spine on which he was putting pressure. In his opinion, it was difficult, even with a slim person, to accurately determine by palpation what part of the lumbar spine was presenting. He said it was sometimes even difficult to tell this by palpation in a patient sedated before surgery where their normal muscle tone was absent. He said surgeons rely upon x-rays to determine conclusively the location of particular parts of a spine. In his opinion, pressure such as Dr. Maloney described as applying to Mrs. Reid could cause movement in the spine of a slim woman, such as Mrs. Reid and the described manipulation would apply stress to the disc. Asked to comment on the symptoms Mrs. Reid described immediately after the manipulation, Dr. Lavoie said he would be concerned that Reid v. Maloney D.C. Read J. 297

“something untoward” had happened as a consequence of the manipulation. He said, as well, that the incident Mrs. Reid described at the shopping centre was consistent with a progression of the symptoms she had exhibited after the manipulations on March 10. 308 He further said that the March 13 problems described by Mrs. Reid, coupled with her history, would cause him on the basis of his training in orthopaedics, to conclude that her spine should not be manipulated. He said the concern was the possibility that a piece of disc is herniated and has progressed and is causing compression causing further problems. He said he would even suspect cauda equina syndrome. 309 Dr. Lavoie also commented on the SOT blocking manouevre as described by Dr. Maloney. It was Dr. Lavoie’s opinion that this procedure would also have put pressure on her lumbar spine and he would be concerned that it would cause pressure on a lesion. 310 Dr. Lavoie’s opinion letter set out his findings on review of both the MRI scan done of Mrs. Reid’s spine on April 6, 2000 (before her first surgery) and the radiographs and MRI done of her spine on June 17, 2000 and August 30, 2000 respectively (after her first surgery but before the second surgery). In his opinion, the April 6, 2000 MRI showed a disc herniation measuring 6 mm by 10 mm at the L4-5 level causing marked compression of the thecal sac, particularly on the right side. There was also a bulge at the L5-S1 level. The later radiographs showed a lesion at L4-5 suggestive of a large extruded fragment of disc and causing significant central stenosis. The follow up MRI confirmed a large lesion at the L4-5 level consistent with an extruded or sequestered disc, mainly central and causing severe stenosis. 311 Dr. Lavoie disagreed with Dr. Erwin in respect to what Dr. Zalasky’s March 7 findings showed. His opinion was that Mrs. Reid’s presentation at the Grandin Medical Clinic when she was examined by Dr. Zalasky on March 7, 2000 before the chiropractic treatment “does suggest an acute back strain”. In contrast, he said, her presentation on March 13, 2000 “certainly suggests an acute lumbar disc herniation”. In direct examination, he said that he agreed with Dr. Zalasky’s opinion that on March 7, 2000, he saw no evidence of prolapse of intervertebral disc. 312 Dr. Lavoie said there appeared to be a causal link between the chiropractic treatment and the lumbar herniation and said “[t]he best evidence supporting a causal link between the chiropractic treatment and the disc herniation at L4-5, is Dr. Maloney’s own documentation and the fact that after his chiropractic treatment, he was concerned enough to request that 298 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Mrs. Reid go directly to the Emergency Department...This would seem to indicate that Dr. Maloney at the time had a sense that something was amiss.” The only data not supportive of this causal link, in his view, was that something may have happened while Mrs. Reid was shopping on the weekend after her March 10 treatment by Dr. Maloney and before her last treatment by Dr. Maloney on March 13. When specifically asked about Mrs. Reid’s shopping trip and whether that could have caused the symptoms she was complaining of on March 13, Dr. Lavoie said it was possible but not probable that she did something while shopping that caused her disc to herniate. 313 Dr. Lavoie agreed that determining causation was a process of looking at what is biologically plausible as well as how strong the association was and agreed as well that there were many potential causes for disc herniations. He also agreed that the temporal aspect was only one aspect of causation. Further, he agreed that Mrs. Reid’s pre-treatment x-rays showed that she had degenerative changes in her lumbar spine. He agreed further that it was possible that such degenerative changes could irritate the nerve but said this was uncommon and it was much more common to have nerve irritation caused by a disc herniation or by an osteophyte from a facet joint. He agreed as well that the most likely cause or factors for lumbar disc herniation were flexion and rotation of the spine (such as picking up something or bending over and twisting with it) and the second most common was an increase in pressure in the abdomen such as what occurs with coughing or sneezing. He agreed, as well, that a tear in the annulus could occur very gradually as a consequence of wear and tear. He also agreed that there were many possible causative factors involved in a tear in the annulus that occurred gradually and smoking was one factor because it had an adverse effect on the health of the annulus. He also agreed that it was possible that Mrs. Reid’s disc herniations were caused simply by wear and tear but said that this discounts the temporal aspect of her injury. He refused to agree, however, that people who had had one disc surgery were necessarily more likely to require a second. 314 In redirect he agreed that causation could also be defined as a factor, accident or exposure that results in a medically identifiable condition. In this case, the medically identifiable condition was the L4-5 disc herniation and the identifiable cause was the chiropractic manipulation. 315 If one examined an MRI image of the backs of a thousand persons over 50, taken at random but without any back pain, Dr. Lavoie said he Reid v. Maloney D.C. Read J. 299

would not be surprised to find that none had a normal back. However, symptoms are very variable. Many have no symptoms. Others will have symptoms that persist for a month or two then settle and some few will have such serious and persistent symptoms that surgery is required. 316 It was his view that the temporal relationship between an event and an injury was very important to determine causation. It was his opinion that the sequence of events was crucial. 317 He was asked what the symptoms reported by Mrs. Reid after lifting her grandson suggested she might be suffering from at that time. Dr. Lavoie considered it an important part of her presentation that she had lower back pain and sciatica with radiation into her left buttock. He said this was likely caused by a lumbar disc herniation causing nerve root irritation. When asked specifically if her symptoms suggested an annular tear, he said that was possible as well. He said, as well, that the most likely progression in 90-95% of cases was that it would get better on its own over three or four months. He said neither the literature nor his own experience caused him to conclude that it would inevitably lead to a disc extrusion in the vast majority of people. It was also his opinion that there was nothing in the massage therapist’s notes respecting her treatment of Mrs. Reid in the period between the incident with her grandson and the treatment by Dr. Maloney which indicated any discal involvement. 318 Dr. Lavoie said that Mrs. Reid’s previous two back surgeries had left her with a weakness in the area that predisposed her to further injury at the same site because disc surgery is done on a back that is already abnormal. Further, the surgery itself leaves a rent in the annulus because it does not heal properly which leaves the disc operated on predisposed to further injury. As well, he said, the effect of the surgery is to pre-dispose adjacent areas of the spine to problems because the bio-mechanics of the spine had been altered by the surgery. This is called adjacent segment disease. 319 Dr. Lavoie’s opinion was that Mrs. Reid’s clinical presentation at Grandin Medical Clinic was quite different on March 13 from what it was on March 7. In his opinion, her presentation on March 7 suggested acute back strain while that on March 13 suggested an acute lumbar disc herniation. He said what he had reviewed showed a causal link between the chiropractic treatment and the lumbar disc herniation. 320 When asked in re-direct what he thought happened to Mrs. Reid in her treatment by Dr. Maloney, Dr. Lavoie said the pain was caused likely because she extended an annular tear that had occurred when she lifted 300 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

her grandson. She had a left sided bulge into her previous scar. He thought that when she had the chiropractic manipulation, the disc was loaded and because the left side was scarred from previous surgeries, the disc squirted out and went into a ligament. He says this explains the MRI findings from April 6 which show a large disc extrusion at L4-5 and is consistent with the sudden onset of increased pain in the opposite leg. 321 He described causation as an identifiable factor, an accident or exposure that results in a medically identifiable condition. In this case, he said the medically identifiable condition was lumbar disc herniation at the L4- 5 level and the identifiable factor was the chiropractic manipulation.

Causation - Findings of Fact: 322 Based upon the evidence of Dr. Erwin, Mrs. Reid’s many medical records, and the testimony of various other experts, as well as the evidence of Mrs. Reid herself, it is clear that Mrs Reid had well documented degenerative disc disease and osteoarthritis when she was first seen by Dr. Maloney. 323 I accept the evidence of both Dr. Erwin and Dr. Lavoie, as well, that the fact that Mrs. Reid smokes made her more susceptible to degenerative disc disease. I do not find it possible to conclude on the evidence that she also has a genetic pre-disposition to developing this disease. Cer- tainly, however, her history is of someone who has had many back problems associated with degenerative disc disease, whatever the reason. 324 I further accept the opinion of both Dr. Erwin and Dr. Lavoie that Mrs. Reid’s previous two back surgeries had left her with a weakness in the L4-L5 and L5-S1 area and predisposed her to further injury at the same sites. However, I do not accept that her previous surgery made further surgery more likely. In this regard, I accept the evidence of Dr. Lav- oie over the other experts, since he is the orthopaedic surgeon and would have much more experience with the incidence of further surgery in patients who have had earlier surgery than would the other experts. 325 There was a big change in Mrs. Reid’s condition between March 7 and March 13. Mrs. Reid reports symptoms that are much more serious on March 13 and none of the experts disagrees that her increased symptoms are evidence of a change in her condition. I accept the evidence of Dr. Lavoie and of Dr. Zalapski, that on March 7, 2000 Mrs. Reid had no symptoms suggestive that she was suffering from disc prolapse. On March 13, she showed definite symptoms of disc prolapse. I prefer their evidence to that of Dr. Erwin, for the reasons I will later discuss. Reid v. Maloney D.C. Read J. 301

326 All of the experts are agreed that Mrs. Reid did not suffer from cauda equina syndrome, although this was a concern based upon her symptoms on March 13 and later, and further investigation was justified. 327 The symptoms reported by Mrs. Reid on March 10, were not transient. Dr. Maloney’s evidence respecting Mrs. Reid’s symptoms before he started her second treatment suggest that he objectively found spasm, still present, when he examined Mrs. Reid on March 10. As well, it seems apparent that she told him that she had suffered back spasm much of the previous night. 328 Although a number of the experts seem to have been told that Mrs. Reid fell or otherwise injured herself when she was at the supermarket on March 11, I find that she did not fall. I accept the evidence of Mrs. Reid that her leg gave way at the supermarket and she had to hold on to the grocery cart to avoid falling. She did not twist, carry a weight or do anything else that the experts have suggested could have caused injury to her disc, either. Nothing that occurred at the supermarket on March 11 caused or contributed to Mrs. Reid’s back problems and the supermarket incident was, instead, connected to events that occurred earlier. In particular, in this regard, I accept the evidence of Dr. Lavoie and Dr. Hender- son that the events Mrs. Reid described as having occurred at the supermarket were consistent with a progression of the symptoms she had exhibited after the manipulations on March 10 and not evidence of an injury that occurred at the supermarket. 329 Mrs. Reid refused to see Dr. Narang at the Sturgeon Hospital asking instead to see Dr. Glasgow. However, there is no evidence that this changed or worsened her condition in any way. While one could also conclude that Mrs. Reid’s refusal to see Dr. Narang must mean that her symptoms were not as serious as she and her husband described them, I do not consider this assumption to be reasonable, given the various descriptions from professionals of the severe pain that Mrs. Reid exhibited from March 13 on. The fact that Mrs. Reid refused to see Dr. Narang when she was taken to Emergency on March 14 is unimportant to resolution of the issues in this case. 330 There is no evidence that anything else happened to Mrs. Reid following her last appointment on March 13, 2000 which could have caused or contributed to her prolapsed disc. 331 The results of the MRI completed on April 6, 2000 showed disc herniation at the L4-S5 level, causing marked compression of the thecal sac, particularly on the right side and a bulge at L5-S1. By April 7, when she 302 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

was seen by Dr. Steinke, Mrs. Reid had right foot drop, according to his chart; this symptom makes it very clear that she was suffering from a herniated disc. She was also, by then, undoubtedly taking the Oxycontin prescribed for her by Dr. Gray. 332 The drugs prescribed for her by Dr. Gray had a strong effect on Mrs. Reid, as is clear from a description Mr. Reid gave of his wife’s mental state at trial: [T] he Monday night by midnight you could have said to Marlene we are going to Switzerland. She would have said okay fine. We are going shopping — okay fine — or we are going downtown — okay fine. She was so far off the picture she was mentally just stoned. 333 The first three and one half pages of Dr. Erwin’s rebuttal expert report were critical of Dr. Lavoie’s report, pointing out what Dr. Erwin said were errors in facts that Dr. Lavoie sets out. I note, however, that some of the ‘facts’ that Dr. Erwin says are wrong were, in fact, correct and it is Dr. Erwin who is mis-informed. For example, he says that Dr. Lavoie erred in stating Mrs. Reid had muscle spasm in the right thigh and calf all weekend. Dr. Erwin says “in fact the symptoms in the right leg did not begin until Saturday March 12[sic] while grocery shopping”. The evidence was that Mrs. Reid’s right hip hurt immediately after the treatment on March 10 and both legs felt weak as she left Dr. Maloney’s office. She said as well that her right leg began to spasm that night and those spasms continued during the night and the next morning when she went shopping with her daughter on Saturday March 11. I accept her evidence. It is Dr. Erwin who is mistaken. 334 The manipulations done by Dr. Maloney on Mrs. Reid’s spine on March 9 and again on March 10 created rotational forces on the L4 and L5 vertebra and therefore on the L4-5 disc. These forces were of unknown but perhaps significant magnitude. As Dr. Conway said, the goal of a manipulation is to move the targeted area of the spine. From Dr. Conway’s evidence, it is quite clear that the L4 and L5 lumbar spinal processes were specifically targeted by Dr. Maloney in his manipulations. It was the opinion of both Dr. Erwin and Dr. Lavoie that rotational forces could be generated with a manipulation. I do not accept Dr. Sy- mons’ opinion that the forces involved must be minor. The research upon which he bases his opinion does not support his theory and his opinion is based upon supposition and not fact. Reid v. Maloney D.C. Read J. 303

Causation - Legal Principles and Application to the Facts: 335 For the Plaintiff to succeed she must establish on a balance of probabilities that the Defendant’s acts of negligence were both the factual and legal cause of Mrs. Reid’s injuries. Factual causation addresses cause and effect between the breaches of care and Mrs. Reid’s injuries. Legal cause, sometimes referred to as proximate cause, addresses the foreseeability of the injuries. 336 The general principles for factual causation come from the Supreme Court decisions in Snell v. Farrell, [1990] 2 S.C.R. 311 (S.C.C.); Athey v. Leonati, [1996] 3 S.C.R. 458 (S.C.C.); and Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333 (S.C.C.), 337 In Snell v. Farrell, at para. 26, Sopinka, J. speaking for the court described causation as: ..an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former. 338 Snell involved alleged medical malpractice. Snell became blind in one eye following a cataract operation. There was bleeding during the operation, a sign of difficulty. The doctor noticed a small discoloration in the eye, palpated the eye and found that it was not hard and, since there were no other signs of bleeding, chose to continue the surgery. After the operation it became clear that Snell lost sight in that eye because of optic nerve atrophy. 339 The atrophy could have been caused by the operation or by a natural cause such as a stroke in the eye itself, which is most likely in a patient with cardiovascular disease, high blood pressure or diabetes. Snell did suffer from high blood pressure and diabetes as well as severe glaucoma, another possible source of atrophy. There was no scientific certainty concerning what caused the injury or when it occurred. 340 The trial judge found that the doctor acted negligently in continuing the operation after noticing that there was bleeding in the patient’s eye. The trial judge held that the burden had shifted to the defendant to dis- prove causation and this burden had not been discharged. The Court of Appeal dismissed the appeal and the defendant further appealed to the Supreme Court of Canada. 341 The Supreme Court held that a plaintiff in a medical malpractice suit must prove causation in accordance with traditional principles, which the Court then went on to define. It affirmed that the onus is on the party 304 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

who asserts a proposition, usually the plaintiff; but where the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to prove it. 342 The Court cautioned against too rigid an application of the causation principles and stated: • causation is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract meta- physical theory: para 29; • causation need not be determined by scientific precision: para 29; • in many malpractice cases, the facts lie particularly within the knowledge of the Defendants, and in these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of the inference of causation in the absence of proof to the contrary: para 30; • the legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If there is some evidence to the contrary then the trial judge is to take a “robust and pragmatic approach to the facts.”: para 31; and • it is not essential that the medical experts provide a firm opinion supporting the plaintiffs theory of causation. Medical experts ordinarily determine causation in terms of scientific or medical cer- tainties, conclusions that are one hundred percent sure, rather than the lesser standard of more probable than not as demanded by law: para 33-36. 343 In Athey, the plaintiff had a history of back problems and suffered back injuries in two separate car accidents. Following his doctor’s advice, he resumed his regular exercise routine after the second accident and suffered a herniated disc while warming up. The trial judge found that the damage was largely due to Athey’s pre-existing back condition and assessed liability at 25% of the full loss. The Court of Appeal dismissed the appeal and the plaintiff further appealed to the Supreme Court of Canada, which allowed the appeal. 344 The “but for” approach was clarified at paras. 13-17, 19, of the Su- preme Court’s decision. The Court recognized that the “but for” test may be the starting point, but said it does not occupy the entire field of factual causation. Justice Major, writing for the majority, held that: Reid v. Maloney D.C. Read J. 305

• Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury ... • The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.... • The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury.... A contributing factor is material if it falls outside the de minimis range ... • ... Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. • It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury ... • ...The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm ... It is sufficient if the defendant’s negligence was a cause of the harm ... 345 In Hanke v. Resurfice Corp., at paras. 21-22, the Supreme Court confirmed the “but for” test as still the “basic test” which “has never been displaced”, going on to explain beginning at para 23: The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. 346 Beginning at para. 24, however, the Court outlined that in some special circumstances, the law has recognized exceptions to the “but for” test and applied, instead, the “material contribution” test. The Court indicated that cases in which the “material contribution” test may properly be applied involve two requirements: 25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the 306 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unrea- sonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those excep- tional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach. 347 As was reiterated in Snell, while medical experts ordinarily determine causation in terms of scientific or medical certitude, the lesser standard demanded by law is, of course, a balance of probabilities. 348 The parties in this case had competing theories. The Plaintiff’s theory was that the SMT administered by Dr. Maloney on March 10, 2000 caused Mrs. Reid’s prolapsed disc and that this was exacerbated by the further treatment she received on March 13. The Defendant’s theory is that Mrs. Reid’s disc was herniated when she lifted her grandson on or about February 15, 2000 and that if the SMT therapy administered by Dr. Maloney contributed to her evolving condition, the contribution was de minimus. 349 In this case, none of the experts is able to say definitively that the March 10 manipulation caused Mrs. Reid’s disc to prolapse. Practically, however, when courts are faced with conflicting expert medical evidence and none of the experts is in a position to provide the court with anything more than a “more likely than not” opinion, the judge must still arrive at a conclusion and may do so by taking the information that the experts provide, applying that information to the facts and circumstances it finds and drawing whatever reasonable inferences the judge considers appropriate to the matrix of information it receives: Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 (Ont. C.A.) at para. 56 350 It is clear on the evidence, and I conclude that Mrs. Reid was vulnerable to disc injury because of her history of degenerative disc disease, her two previous surgeries, and the fact she smokes. 351 I accept, as well, that it is possible for a disc protrusion or prolapse to occur somewhat spontaneously, caused by wear and tear and without any obvious triggering mechanism. Indeed, I accept the expert evidence that something as minor as a cough can sometimes trigger a disc problem. However, I do not conclude this is what happened here. I accept the evidence of Dr. Lavoie that in most cases there is a trigger mechanism. To Reid v. Maloney D.C. Read J. 307

assume, that Mrs. Reid’s back injury was simply spontaneous is to ignore the temporal aspect of her pain. I reject Dr. Erwin’s evidence on this issue. As an orthopaedic surgeon, Dr. Lavoie has had vast experience and has doubtless taken or reviewed a patient history for every patient on whom he has operated for disc injury. As a result of his experience, Dr. Lavoie is in a much better position to provide opinion evidence about the causal link between a precipitating event and disc injury than is Dr. Er- win who bases his opinion on one study, which study was apparently based upon chart review rather than direct observation and discussion with patients. To cite only the most obvious reason that this study may be flawed, any inaccurate or incomplete charting would affect the results. 352 Based upon the evidence of when Mrs. Reid’s pain began and when it worsened, it is clear that her disc injury resulted from an event or a series of events that occurred in February and March of 2000. Her back did not hurt until she lifted her grandson on or about February 15. Before that she had no symptoms. After that, her back hurt. The pain was not enough to keep her from working or carrying on her normal activities. However, it is clear that her back hurt enough to seek treatment, first from her massage therapist and then from Dr. Mahoney. After her treatment on March 10, her pain grew worse and after the further treatment on March 13, it was worse again. The later MRI confirmed the disc problems, suspected by all of the treating practitioners, including Dr. Maloney on March 13. 353 There are only three possible explanations for this progression, in my view: a. The injury occurred when she lifted her grandson and later progressed. The chiropractic manipulation had little or no effect, as was the opinion of Dr. Henderson and Dr. Erwin; b. An initial discal bulge occurred when she lifted her grandson but would likely have resolved were it not for the chiropractic manipulation which caused the prolapsed disc, as was the opinion of Dr. Lavoie; c. When Mrs. Reid lifted her grandchild, she suffered a muscular strain. The chiropractic manipulations caused all of her discal injuries. 354 I conclude on the evidence that Mrs. Reid did not suffer a disc herniation at the L4-S5 disc when she lifted her grandson in February 2000. She suffered either a low back strain that was muscular in origin or a disc bulge at either L4-5 or L5-S1. Dr. Zalasky diagnosed low back strain on March 7, 2000 and Dr. Lavoie agreed with this diagnosis. Dr. Zalasky 308 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

found tenderness over the para-spinal muscles and in the lumbar region when he examined Mrs. Reid but did not note any radiation of pain into her legs and found no evidence of a prolapsed intervertebral disc. Dr. Lavoie’s opinion was that the symptoms noted by the massage therapist who treated Mrs. Reid in the interval between the incident with her grandson and her treatment by Dr. Maloney, were also consistent with this diagnosis. As well, it was his view that Mrs. Reid’s stated history of having continued to work normal hours, carry out her normal household duties, and walk in high heeled shoes was consistent with her having suffered merely a muscular injury when lifting her grandson. 355 Dr. Erwin’s opinion was that it is likely that Mrs. Reid suffered a herniated disc when she bent over and picked up her grandson. Certainly the flexion, tortion, and load carrying movement that Mrs. Reid made when she bent over to catch her grandson on the stairs and then caught and lifted him is consistent with the type of activity that various experts indicated could cause disc injury. I accept, as well, that patients’ symptoms are extremely variable. 356 However, I do not accept as valid a number of the reasons that Dr. Erwin relies upon as the basis for his opinion and as a consequence, do not accept his opinion. He said that he understood that Mrs. Reid’s back pain was not improving and was different from normal. That was not her evidence. Mrs. Reid described the pain she felt after lifting her grandchild as uncomfortable but not unfamiliar. In other words, the pain was not different from usual. As well, on her evidence, the pain was improving. She said that the massage therapy she underwent improved her pain, although it was still there. 357 Dr. Erwin also based his opinion on his understanding that Mrs. Reid’s pain was severe enough that she took analgesics and muscle relaxants before her first appointment with Dr. Maloney. However, the evidence was that the analgesics and muscle relaxants were not prescribed until Mrs. Reid’s March 7 visit with Dr. Zalapsky, some three weeks after the incident with her grandchild. As well, the pharmacy records show that Mrs. Reid filled only one prescription on March 7 - for 30 tablets of Novo Difenac. There was no evidence before me about whether this drug was an analgesic or a muscle relaxant but in any event, it is apparent that she did not fill this prescription until March 7 and so was not taking this drug for a long time period as appears to have been assumed by Dr. Erwin. Additionally, she appears to have filled only one Reid v. Maloney D.C. Read J. 309

of the two prescriptions Dr. Zalapsky gave her and so it cannot be said that she was taking both an analgesic and a muscle relaxant. 358 Nor do I accept Dr. Erwin’s opinion that Dr. Zalasky’s statement in his chart on March 7, 2000 that Mrs. Reid’s symptoms showed no evidence of prolapsed intervertebral disc was inaccurate. Dr. Erwin found it significant that Mrs. Reid was unable to bend backwards and said this could have been evidence of an inflammation of the facet joints or a disc that protrudes posteriorly. However, there are many other possible explanations for this, including muscle spasm and simple lack of flexibility. Dr. Erwin did not examine Mrs. Reid and no other expert found this inability at all significant. I conclude that Dr. Erwin is speculating when he suggests that Mrs. Reid’s stated inability to bend backwards means that she was likely already suffering from a prolapsed disc. 359 I also reject Dr. Erwin’s opinion that because Mrs. Reid’s symptoms appeared to progress between March 7 and March 9, this was evidence of her suffering a prolapsed disc before she saw Dr. Maloney. He also said in relation to the evidence he had read that Mrs. Reid felt somewhat better after her first visit with Dr. Maloney that this seemed to indicate that Mrs. Reid was improving. In my view, it is illogical to say that progression of symptoms lends credence to the opinion that Mrs. Reid suffered a prolapsed disc when she lifted her grandchild but improvement after her first appointment with Dr. Maloney does not lead to the conclusion that she had not suffered a prolapsed disc before March 10. 360 Mrs. Reid’s back problems on March 9 when she went to see Dr. Maloney were caused either by muscle sprain or by a bulging disc. How- ever, her L5-S1 disc had not herniated at that time although it may have bulged as a result of the incident with her grandchild. The evidence of Dr. Erwin was that a herniated disc results in serious pain because the outer membranes of the annulus have sensory neurons and because once a disc extrudes from the spinal cord, it may contact and put pressure on other structures such as the spinal nerve roots. Mrs. Reid’s pain before she underwent chiropractic manipulation was not severe. As I have found, she continued her normal activities and she was taking no analgesics for the major part of that time. 361 I also conclude that the herniation at L5-S1 did not occur on March 9 although the manipulation may have put more pressure on a bulging disc and caused nerve irritation. I accept the evidence of Dr. Conway that the manipulations which Mrs. Reid underwent on March 9 was not conservative treatment. They were designed to and did put pressure on her spine, 310 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

particularly on the vulnerable L4- S1 area at which she had previous surgery. Dr. Lavoie was of the same view. He was familiar with the procedure and said that in his opinion this manipulation would create a rotational force across the lumbar spine and would increase strain across the lumbar disc. I accept his evidence. 362 For the reasons I have set out earlier in this judgment, I reject the evidence of Dr. Symons that the forces applied to a lumbar spine in chiropractic manipulation are negligible and, in any event, a red herring. Instead, I agree with the conclusion reached by Shelley, J. in Malinowski. From her reasons, it is evident that Dr. Symons gave similar evidence in Malinowski to that which he gave in this trial. At para. 265, Shelley, J said the following: I note that in this sense the testimony of Dr. Symons appears to lead to some peculiar conclusions. If the forces exerted during a chiropractic adjustment are so slight as to never or almost never have possible deleterious consequences to even a damaged intervertebral disc, a structure well known to be injured under even unremarkable circumstances, then what kind of possible biological and biophysical effect could result from a chiropractic adjustment? 363 It is illogical to claim that the forces in chiropractic adjustment are so slight that they could almost never have deleterious consequences, to say at the same time, that other seemingly innocuous spinal forces, such as a cough or a sneeze could have deleterious consequences and to say, as well, that chiropractic manipulation has positive benefits. 364 Although, as I have said, forces were exerted on Mrs. Reid’s lower spine by the manipulations undertaken by Dr. Maloney on March 9, nonetheless, she did not testify to serious pain during or immediately following that manipulation. 365 She did, however, suffer back spasm that evening and overnight. Dr. Lavoie’s opinion was that the symptoms Mrs. Reid exhibited on March 10 were indicative of increased nerve root irritation which could have been discal in origin. In respect to the muscle spasm that Mrs. Reid reported she had suffered the night before, Dr. Lavoie called it an involuntary reaction to an injury and said it was a classic symptom in someone with lumbar disc herniation although it was certainly prevalent in reaction to other problems as well, such as acute back strain. 366 I conclude from this evidence that the manipulations may have caused some nerve root irritation. This would be consistent with her having suffered a bulged disc when she lifted her grandson, exacerbated by Reid v. Maloney D.C. Read J. 311

the manipulation. However, as Dr. Lavoie said, the spasm is also consistent with other possible causes and is not determinative. 367 However, the spasm should have raised more questions in the mind of Dr. Maloney about what he was dealing with. I have already set out my conclusion that Dr. Maloney should have gotten more information before commencing active treatment of Mrs. Reid. He was not aware of how vulnerable Mrs. Reid was to spinal manipulation in the area of her previous surgery. Although he could have seen her scar when he examined her, he did not know what kind of surgery she had in the past. Nor was he aware of her extensive history of degenerative disc disease. He was aware that she had pain radiating into her leg on straight leg raise and was aware from Mrs. Reid’s report to him, that she had reacted to the first manipulation with back spasm. In this regard, I agree with Dr. Con- way’s opinion. He said if he were the treating chiropractor of a patient who showed a new symptom such as spasm after initial treatment, he would want to determine exactly where the spasm was and do further tests before offering further treatment. Dr. Maloney did not do this. He should have. 368 Instead, Dr. Maloney proceeded on March 10 to again manipulate the same area of Mrs. Reid’s spine and, in this second treatment, did more manipulations than he had the previous day. I have concluded on a balance of probabilities that the manipulations done on March 10 were the cause of damage to Mrs. Reid’s spine — likely causing the L4-5 disc extrusion that was ultimately confirmed in the MRI on April 6, 2010. 369 Mrs. Reid felt immediate and severe pain during the March 10 manipulation. The evidence was that a disc extrusion through the annulus will cause pain because of the presence of nerves in the outer layers. After this manipulation, Mrs. Reid’s symptoms grew markedly worse. This is also consistent with the injury having been caused at this time. She also had pain in her right hip and immediate weakness in both legs. By that evening, her right leg was in severe spasm. This was a markedly different symptom that she had reported to Dr. Maloney before the treatment when she described left leg spasm. 370 I accept the evidence of Dr. Lavoie, whose opinion was that pressure such as Dr. Maloney described as having applied to Mrs. Reid could cause movement in the spine of a slim woman, such as Mrs. Reid. In his opinion the described manipulation would apply stress to the disc. I am satisfied that the stress applied was sufficient, in Mrs. Reid’s case, to cause the disc to rupture. I accept Dr. Lavoie’s opinion that “something 312 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

untoward” happened as a consequence of the manipulation on March 10 — likely the disc extrusion at L4-5. The sudden onset of increased pain in Mrs. Reid’s opposite leg was consistent with this, in his opinion. 371 On the basis of Dr. Lavoie’s evidence, I am satisfied, as well, that were it not for the manipulation on March 10, the back injury Mrs. Reid suffered when she lifted her grandson would likely have improved on its own over the succeeding few months. His evidence was that the most likely progression from the initial injury in 90-95% of cases was that it would get better on its own over three or four months. He said neither the literature nor his own experience caused him to conclude that it would inevitably lead to a disc extrusion in the vast majority of people. I accept this evidence. 372 Because there is no evidence to support it, I do not accept Dr. Hen- derson’s opinion that Mrs. Reid’s symptoms after March 10 were caused spontaneously by Mrs. Reid’s activities of daily living and that, at most, the manipulation on March 10 exacerbated her condition. Nor do I accept Dr. Erwin’s opinion that Mrs. Reid’s severe back injury occurred when she lifted her grandson. The absence of increasing symptoms until March 10 and the sudden increase after March 10 cannot be explained as a simple progression of the February 15 injury. 373 Instead, I prefer Dr. Lavoie’s opinion that while it is possible that Mrs. Reid’s injury was caused simply by wear and tear, this explanation discounts the temporal aspect of her injury. All of the experts agreed that the temporal aspect was an important component in determination of causation. Mrs. Reid’s sudden severe pain on March 10 and immediately worsened and different symptoms are consistent with a trauma related injury and inconsistent with a gradual tear. 374 As for the further manipulation on March 13, it is clear from the evidence that Mrs. Reid’s symptoms worsened after this treatment. How- ever, I am not able to conclude on the evidence that Dr. Maloney acti- vated the Thompson drop table and used it on March 13. The fact that there was nothing in his notes to indicate this is not determinative, given the evidence that his notes were incomplete in many respects. However, Dr. Maloney testified that in his professional judgment, it would never be appropriate to use both the blocks and the Thompson drop table together to treat a slight woman such as Mrs. Reid. Given that opinion, it is unlikely, in my view, that when faced with a patient who was obviously in as much pain as Mrs. Reid was on March 13, anyone with Dr. Maloney’s training would have used the combination of treatments. Further, Dr. Reid v. Maloney D.C. Read J. 313

Maloney has some memory of this visit because, as he says, it was so unusual. He specifically said he did not use the drop table apparatus on Mrs. Reid. I also have the evidence of the sound the drop table makes. It is not consistent with the ‘swoosh’ sound described by Mr. and Mrs. Reid. I have concluded therefore that Mrs. Reid is mistaken in thinking that the drop mechanism was used. Exactly what did happen to cause her to feel like she had dropped is unclear but I will not speculate. 375 There was some evidence, as well, that Dr. Maloney had not used the blocks properly on March 13. Dr. Conway testified that a patient should be positioned prone on the blocks and both Dr. Maloney and Mr. and Mrs. Reid testified that Mrs. Reid was positioned supine on the blocks. It is possible that this manouevre could have worsened Mrs. Reid’s condition. Certainly, she experienced more severe pain after this procedure. Nonetheless, I accept Dr. Maloney’s evidence that he applied only light pressure to Mrs. Reid’s hips. Mrs. Reid was not certain how heavy the pressure was and, again, I am satisfied that Dr. Maloney would have and did proceed with extreme caution given Mrs. Reid’s presentation that day. In any event, the bulk of the evidence points to the March 10 manipulation as the cause of the sequestered disc. At most, the treatment done by Dr. Maloney on March 13 exacerbated an already existing extruded disc. 376 In the result, I find on a balance of probabilities that Dr. Maloney’s manipulation of Mrs. Reid’s back on March 10, 2000 caused or substantially contributed to Mrs. Reid’s injury and that, but for this manipulation, the injury she sustained when she caught her grandchild would have subsided. Whether or not the injury was exacerbated by the further treatment on March 13, it was Dr. Maloney’s March 10 manipulation that caused the sequestration of Mrs. Reid’s disc and resulted in her having to undergo surgery on her back. 377 Costs may be spoken to if the parties are unable to agree. Action allowed. 314 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

[Indexed as: Campbell v. Fairley] Jennifer Marie Campbell and David Stephen Schmidt (Plaintiffs) and Henry S. Fairley and Rahi Victory (Defendants) Ontario Superior Court of Justice Docket: Thunder Bay CV-10-0104-00 2012 ONSC 769 F.B. Fitzpatrick J. Heard: December 12-16, 19-20, 2011 Judgment: January 31, 2012 Health law –––– Malpractice — Negligence — Standard of care — Special- ists –––– Plaintiff C underwent laparoscopic assisted vaginal hysterectomy, during course of which her right ureter was completely transected — Injury was not intended and was not detected until next day — Plaintiffs brought medical malpractice action against surgeons F and V, alleging that their conduct fell below acceptable standard of care for specialists in obstetrics and gynecology — Ac- tion dismissed — Defendants completed surgery with reasonable degree of skill and knowledge and exercised reasonable degree of care as expected from specialist practicing gynecology in Ontario — Their conduct did not breach standard of care — Medical experts agreed that there was need for extreme care in location where injury occurred because ureter could not be visualized, but that ureteric injury is rare and could have occurred without any negligence — De- fendants were both extremely knowledgeable of nature of surgery, they understood what they had to do to avoid causing injury to patient, and they carried out procedure in manner that met standard of care — They exercised appropriate level of extreme care in area where injury occurred and this, even when coupled with fact of injury, did not bespeak negligence — C’s anatomy was aberrant in location where ureter was transected, which defendants could not have been reasonably expected to know — While F was “new” to procedure, he was at all times directed by “preceptor” V, who was more experienced — Defendants exhibited skill and ability sufficient to satisfy standard of care they owed C — Unfortunate outcome by itself does not constitute negligence — Post-operative creatinine test ordered by F, which made him aware of possibility of ureteric injury, did not indicate any negligence or belief that something had gone wrong — Defendants did not rush procedure — Plaintiffs had not proven that C’s injury resulted from negligence on part of defendants. Health law –––– Malpractice — Negligence — Types of malpractice — Dur- ing operations –––– Plaintiff C underwent laparoscopic assisted vaginal hysterectomy, during course of which her right ureter was completely transected — Campbell v. Fairley 315

Injury was not intended and was not detected until next day — Plaintiffs brought medical malpractice action against surgeons F and V, alleging that their conduct fell below acceptable standard of care for specialists in obstetrics and gynecology — Action dismissed — Defendants completed surgery with reasonable degree of skill and knowledge and exercised reasonable degree of care as expected from specialist practicing gynecology in Ontario — Their conduct did not breach standard of care — Medical experts agreed that there was need for extreme care in location where injury occurred because ureter could not be visualized, but that ureteric injury is rare and could have occurred without any negligence — Defendants were both extremely knowledgeable of nature of surgery, they understood what they had to do to avoid causing injury to patient, and they carried out procedure in manner that met standard of care — They exercised appropriate level of extreme care in area where injury occurred and this, even when coupled with fact of injury, did not bespeak negligence — C’s anatomy was aberrant in location where ureter was transected, which defendants could not have been reasonably expected to know — Defendants both testified that there was nothing during operation to indicate that ureter had been damaged — While F was “new” to procedure, he was at all times directed by “preceptor” V, who was more experienced — Unfortunate outcome by itself does not constitute negligence — Post-operative creatinine test ordered by F, which made him aware of possibility of ureteric injury, did not indicate any negligence or belief that something had gone wrong — Defendants did not rush procedure — Plain- tiffs had not proven that C’s injury resulted from negligence on part of defendants. Cases considered by F.B. Fitzpatrick J.: Bafaro v. Dowd (2008), 2008 CarswellOnt 5246, [2008] O.J. No. 3474 (Ont. S.C.J.) — referred to Hassen v. Anvari (2003), 2003 CarswellOnt 3436, [2003] O.J. No. 3543 (Ont. C.A.) — followed Roe v. Minister of Health (1954), (sub nom. Woolley v. Same) [1954] 2 Q.B. 66, [1954] 2 All E.R. 131 (Eng. C.A.) — considered St-Jean c. Mercier (2002), (sub nom. St-Jean v. Mercier) [2002] 1 S.C.R. 491, 2002 SCC 15, 2002 CarswellQue 142, 2002 CarswellQue 143, (sub nom. St- Jean v. Mercier) 209 D.L.R. (4th) 513, 282 N.R. 310, [2002] S.C.J. No. 17, REJB 2002-28009 (S.C.C.) — followed Words and phrases considered: laparoscopic assisted vaginal hysterectomy [A laparoscopic assisted vaginal hysterectomy (LAVH)] can be described simply as an operation to disconnect or dissect the uterus from its supporting con- 316 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

nective tissues and from its blood supply. The uterus is then removed from the patient.

ACTION in medical malpractice.

Robert E. Somerleigh, Nicole Crowe, for Plainiffs Michael E. Royce, Dena Varah, for Defendants

F.B. Fitzpatrick J.:

1 This is a medical malpractice action. The plaintiffs, Jennifer Marie Campbell and David Stevens Schmidt, allege that the conduct of the defendants, Dr. Henry S. Fairley and Dr. Rahi Victory, fell below an acceptable standard of care for specialists in obstetrics and gynecology and Ms. Campbell suffered damages as a result. 2 On May 8, 2009 Ms. Campbell underwent a laparoscopic assisted vaginal hysterectomy (LAVH). The defendants admit that during the course of the surgery, Ms. Campbell’s right ureter was completely transected, a result which was not intended and indeed not noticed by the defendants until the next day. The parties have agreed on the amount of damages that should be awarded in the event I find that the defendants acted negligently. For reasons that follow I do not find that the defendants acted negligently and the claim should be dismissed without costs.

Background 3 Ms. Campbell decided in February 2009 to undergo the procedure at issue in this trial after consultation with her family doctor and Dr. Fair- ley. At the time of the surgery, Ms. Campbell was a 39 year old woman in good health. She had a history of dysfunctional uterine bleeding. A hysterectomy was recommended by her family doctor in consultation with Dr. Fairley to remedy this painful and difficult condition. 4 Dr. Fairley suggested that the operation be conducted laparoscopically. This involves completing the majority of the operation by inserting surgical devices through very small holes in a patient’s abdomen and pelvic area through which specialized surgical instruments are inserted to perform the surgery in a minimally invasive way. This form of surgery is not new to Canada, having been introduced in the late 1980’s. However, the instruments used to perform the actual surgery are being constantly upgraded as technology becomes more sophisticated and allows the cutting and grasping devices to become more precise. The specific instru- Campbell v. Fairley F.B. Fitzpatrick J. 317

ment used to perform the actual cutting of the uterus is called the Har- monic Ace scalpel. It was first introduced into Canada in 2003. 5 Ms. Campbell agreed to this form of procedure because the recovery time was promised to be much shorter, less pain is involved in the recovery from the operation, patients are typically in the hospital for a much shorter period and the operation causes much smaller scars. 6 Dr. Fairley told Ms. Campbell that he was “new” to this procedure. He had performed many, many hysterectomies which involved opening the patient’s abdomen to directly access the uterus (a so called laparotomy), but he had done very few laproscopically. He did not tell her exactly how many of these operations he had performed laparoscopically but this did not matter to Ms. Campbell. She testified she would have gone forward with the operation regardless of the experience of Dr. Fair- ley. In fact, this operation was the fifth hysterectomy Dr. Fairley had preformed laparoscopically. 7 It is important to understand that Dr. Fairley was not going to be doing this operation alone. Laparoscopic surgery involves three or four surgical instruments, so two surgeons are required to do the surgery. Be- cause Dr. Fairley was new to the procedure, he had asked a person with significantly greater experience in the operation, a so called “preceptor”, the defendant Dr. Victory, to assist. The use of a preceptor to teach the surgery is an accepted medical practice in Canada. Dr. Fairley, along with another gynecologist who also was being preceptored by Dr. Vic- tory. wanted to learn the surgery so that they could offer it to women in the Thunder Bay area. 8 At the time of the surgery, Dr. Fairley had done four LAVH type surgeries, although he had done other work laparoscopically. Two of Dr. Fairley’s LAVHs had been preceptored by a Dr. McTavish from Winni- peg and two had preceptored by Dr. Victory who had come from Windsor. 9 An LAVH can be described simply as an operation to disconnect or dissect the uterus from its supporting connective tissues and from its blood supply. The uterus is then removed from the patient. Although this is simply stated, this procedure is a complex operation that involves a great degree of skill and experience on the part of the surgeons performing the operation. 10 As in all surgeries, it is the foremost concern of the surgeons to ensure that they do the least amount of cutting as is necessary to achieve the goals of the operation. When it comes to pelvic surgeries, surgeons 318 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

are particularly concerned with damage to other organs that are around the uterus; in particular the bladder, the bowel, and the ureter. In this case, Ms. Campbell’s right ureter was completely cut through, or “transected”, during the operation by Dr. Fairley. Dr. Fairley admits to the transection. As noted above, the parties agreed at the outset of the trial that a finding of liability would have resulted in an award to Ms. Camp- bell and Mr. Schmidt of $82,500.00 inclusive of costs.

Analysis 11 After considering all the evidence, I find that Dr. Fairley and Dr. Vic- tory completed the surgery with a reasonable degree of skill and knowledge and exercised a reasonable degree of care as would have been expected from a specialist practicing gynecology in Ontario. I find that the defendants exercised the degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing as a specialist. These defendants clearly owed the plaintiff, Ms. Campbell, a duty of care. However I find that their conduct did not breach the standard of care. 12 It is common ground that the injury occurred in Ms. Campbell’s body in a place where her right ureter could not be visualized (i.e. seen) by the surgeon in either a laparoscopic situation or in a situation where a laparotomy was performed. It is conceded by the plaintiff that this injury could have occurred in the absence of any negligence by Drs. Victory and Fairley. However, the plaintiff stressed the fact that the occurrence of this injury and the nature of the injury, a full transection of the ureter as opposed to a “nick” or small cut, together with other circumstantial evidence should lead to a finding of negligence on the part of Drs. Vic- tory and Fairley. 13 As the injury was not detected during the course of the surgery, it was important to determine as precisely as possible where the transection of the ureter actually occurred inside Ms. Campbell. This is because there are certain areas of the body where a reasonably prudent surgeon should not be cutting or grasping in this type of operation. 14 The location of the injury was made more difficult to determine by the fact that it was agreed by the parties at trial that the surgeon who did the repairs did not specifically note the location of the transection. There were three medical experts called at this trial, two for the plaintiff, and one for the defence. One of the plaintiff’s medical experts, Dr. Arnold Newton, and the medical expert called by the defendants, Dr. Sari Kievs, Campbell v. Fairley F.B. Fitzpatrick J. 319

agreed in their testimony as to the approximate location of the injury. Dr. Fairley and Dr. Victory also agreed with the location cited by these experts. The first expert witness called on behalf of the plaintiff, Dr. Wil- liam Cowan opined the injury occurred in a very different region than the other medical experts and the two doctor defendants. Ultimately, during submissions, the plaintiffs indicated they agreed with the opinion of the majority of the witnesses in the matter as to the site of the injury. Dr. Cowan’s opinion as to the injury site is therefore not accepted. In my view, because Dr. Cowan’s opinion varied so differently from the other experts as to the location of the injury, which I believe was a critical fact in assessing whether these defendants met the standard of care, I have discounted much of Dr. Cowan’s opinion where it otherwise was contrary to the opinion expressed by the expert for the defendants and the direct evidence of Dr. Fairley and Dr. Victory. 15 The location of the injury is also significant as it occurred in a spot where the ureter cannot be visualized by the surgeon. At the location of the injury in the pelvis, the ureter travels a course through the cardinal ligament on top (assuming one is looking into the pelvis from the shoul- ders down towards the feet) and then through the uterosacral ligament to the bladder. The cardinal ligament and the uterosacral ligament have to be cut away from the uterus in order for the uterus to be removed during an LAVH procedure. The ureter passes through these two ligaments and while the ligaments need to be cut, a surgeon must exhibit caution while making this dissection. 16 The method by which the surgeon protects the ureter at this stage in the procedure was described by all the experts called, as well as by Dr. Fairley and Dr. Victory, as “hugging” the cervix. The cervix is the portion of the uterus which is connected to the vagina. This “hugging” action can best be explained as keeping the scalpel instrument as close to the cervix as possible in the area where it is known that the ureter comes closest to the surgical field, (the surgical field being the area of the body where the surgeon is cutting). 17 It was observed by all the experts called that the general area of the injury is a place in the body where a surgeon can “get in trouble” if they allow their scalpel to wander too far afield. It was also common in the testimony of all the medical experts and Dr. Fairley and Dr. Victory that it is the surgeon’s duty first, foremost and finally to protect the ureter in the course of this operation. 320 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

18 In order to carry out this primary duty of protecting the ureter, the medical experts all agreed that once the procedure commenced, it was incumbent on the surgeons to identify the actual location and course of the ureter in the pelvic area. This is done by observing the action of the ureter known as peristalsis. This is a worm like movement of the ureter which occurs every five or ten seconds depending on the volume of urine being excreted from the kidney. During the opening phases of an operation peristalsis would typically occur a number of times. It would also be observable during the operation. At the completion of the operation surgeons again look to observe peristalsis in the ureter to ensure it is still functioning and it has not been damaged in the course of the procedure. It was conceded by all the expert witnesses that peristalsis can be observed even in the case of a damaged ureter. 19 In this matter, both Dr. Fairley and Dr. Victory testified that they observed peristalsis both at the beginning of the procedure, during the course of the procedure and at the end of the procedure. For them, this indicated that the ureter had not been damaged and there was no cause for concern. Nothing in Ms. Campbell’s pelvic area or in her medical history gave either of the surgeons concern that Ms. Campbell’s ureter had the possibility of being in an area where they had been grasping and cutting during the course of the performance of the LAVH. 20 All the medical witnesses indicated that pathologies in the pelvic area such as pelvic disease and other circumstances can cause the course of the ureter to move into a region where it would not normally be encountered in the course of surgeons performing a hysterectomy. All the medical experts testified that the usual warning signs were not present in Ms. Campbell. 21 However, the theory of the defence was that, in this case, a transection of the ureter was unavoidable because Ms. Campbell’s anatomy was aberrant. It was aberrant in that her ureter passed so close to her cervix that the surgeons could not have avoided cutting it. The defence also argued that neither Dr. Fairley nor Dr. Victory could have anticipated cutting it, as Ms. Campbell’s anatomy in that part of her body presented as normal, thereby not alerting even gynecological specialists such as Dr. Victory and Dr. Fairley to the possibility of this surgical misadventure. 22 None of the medical experts raised any issues or found any fault with the actions of the doctors during the “closing” portion of the operation. Dr. Fairley and Dr. Victory testified as to their observation of peristalsis at the end of the operation. Both Dr. Fairley and Dr. Victory testified Campbell v. Fairley F.B. Fitzpatrick J. 321

candidly that they did not know they transected the ureter during the operation. Dr. Fairley dictated an operative note immediately after the operation. At the end of the note he stated “there are no inter operative complications noted.” He was quite clear in his evidence that he did not know the ureter had been transected. Both he and Dr. Victory were adamant that peristalsis was evident at the end of the operation and there was nothing otherwise to indicate to these two surgeons that they had actually injured the ureter. 23 The plaintiff asked the court to draw different inferences from the evidence of both the two doctor defendants and the plaintiff’s medical experts, particularly Dr. Newton. The plaintiffs argued that circumstances during the operation and following the operation could only lead to a conclusion that, despite Dr. Fairley’s evidence to the contrary, at or about the time of the conclusion of the operation, he had a suspicion that a ureteric injury had occurred during the operation. Correspondingly, his failure to deal with it prior to completing the operation constituted negligence on his part in addition to the negligence arising from the act of the cutting or transecting the ureter. 24 The plaintiff points to a number of circumstances from which it asks the court to draw the conclusion that Dr. Fairley and Dr. Victory acted negligently. 25 It was conceded by the plaintiff, that as a matter of law, an unfortunate outcome in and of itself does not constitute proof of negligence. I was referred to the decision of the Supreme Court of Canada in St-Jean c. Mercier, [2002] S.C.J. No. 17 (S.C.C.) at para 53, which states: To ask, as the principle question of the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for reasonable, prudent and diligent surgeon in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Surgeons have an obligation of means not an obligation of results. 26 The plaintiff however, points to the decision of the Ontario Court of Appeal in Hassen v. Anvari, [2003] O.J. No. 3543 (Ont. C.A.), when confronted by the question raised by an admitted unfortunate outcome. From my reading of that case, the Court of Appeal acknowledged the established legal concept that all surgery has risks so that mere misadventure must not be considered negligence. The Court in Hassen also 322 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

dealt with the onus of proof in a medical malpractice case and stated that the onus is on the plaintiff to prove that negligence by the defendant caused the plaintiff’s injury. That onus may be satisfied by circumstantial evidence that allows an inference of negligence to be made, unless the defendant negates the inference with an explanation that is at least as consistent with no negligence as with negligence. 27 In this case, the plaintiff argued that the following circumstantial evidence should lead to a conclusion of negligence; 1) The fact of the injury; 2) The fact that these types of injury are rare and the risk of injury at the location where it occurred was remote; 3) The fact that all experts and the doctors agreed that there was a need for extreme care in the location where the injury occurred because the ureter is not capable of being visualized at that location; 4) The fact that all experts and the doctors agreed that, for this operation, there was a clear expectation that a reasonably competent surgeon would “hug” the cervix at that location so as not to damage the ureter; 5) The fact that the plaintiff’s anatomy was understood to be normal and she did not have any histories of prior surgery or procedures nor did she have any pathologies that would have altered the location of her ureter or drawn her right ureter closer than normal to the side of her cervix; 6) The fact that there was no mention of aberrant anatomy in the surgical note provided by Dr. Fairley post operatively; 7) The fact that Dr. Fairley was a relatively inexperienced surgeon and he actually cut the ureter in question; 8) The fact that the median distance, from the medical literature put before the court, indicated that the ureter is expected to be centimeters from the cervix and this distance should have allowed sufficient room to prevent such an injury; 9) The fact that the plaintiff claims that Dr. Fairley did not advise her until the next day that she had suffered a ureteric injury; 10) The fact that Dr. Fairley ordered a creatinine test which, while it can be indicative of ureteric injury, also can be indicative of other things not specific to ureteric injuries; Campbell v. Fairley F.B. Fitzpatrick J. 323

11) The fact of Ms. Campbell’s claims that following her second surgery to correct the ureteric injury, Dr. Fairley had a discussion with her concerning a consent document she signed previously; 12) The allegation by the plaintiffs, that the morning after Ms. Camp- bell’s surgery, Dr. Fairley met with her and only checked her right kidney and did not inspect her left kidney nor her abdomen. 13) The time booked and expended for the actual operation; 14) The defendants claim that the ureter was aberrant only applied in respect to the very area where the ureter was transected as opposed to other areas in the pelvis which could have been visualized. 28 As noted above I have not found that the defendants acted negligently in this matter. In coming to this conclusion I have considered the arguments of the plaintiff as noted above and I will deal with these various arguments in turn.

1) The fact of the injury 29 Dr. Fairley admitted that he transected Ms. Campbell’s ureter. How- ever, he did not admit that he intentionally did so, nor did he admit that he knew he had done so during the course of the operation. 30 All of the medical witnesses agreed that ureteric injury, particularly at the level of the uterosacral and cardinal ligaments, can occur in the absence of any negligence on the part of the operating surgeon. All the medical witnesses agreed that pronouncements on matters of clinical practice made by the Society of Obstetricians and Gynecologists of Can- ada (“SOGC”) are authoritative. The most recent policy statement of the SOGC in respect of ureteric injuries in gynecological surgery was published in 1999 and was entered as an exhibit in this trial. The SOGC guideline noted that these types of injuries are rare, occurring in .024 to .4% of surgeries. The SOGC guideline also states that while identification of the ureter at the time of surgery will reduce the incidence of ureteric injury, it will not entirely eliminate it. 31 Other medical literature was acknowledged by the medical witnesses and admitted into evidence. An article entered into evidence entitled “Location of the ureters in relation to the uterine cervix by computed tomography” published in volume 184 No. 3 of the American Journal of Obstetric Gynecology indicated that ureteric injury is a serious complication of hysterectomy that occurs in 0.1% to 2.5% of all gynecologic sur- 324 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

gical procedures. Another review article published in 2003 in Volume 58, No. 12 of Obstetrical and Gynecological Survey summarized 3,344 articles and was supplemented with an online search of a data base in which 3,690 articles were reviewed and found that ureteric injury ranged from less that 1% to 2%. In addition, the court was presented with an article from 2006 from the Journal of Minimally Invasive Gynecology entitled “Complications of laprarocopic surgery: How to avoid them and how to repair them” which indicates that many of these types of injuries are under reported and quoted an incidence of less than 1% to less than 2.2%. Based on the acceptance of these articles as being authoritative by the experts called at trial, I find that while the incidence of these injuries is low, they are not completely unavoidable and, in and of itself, the fact of the injury does not imply negligence.

2) These types of injury are rare and the risk of injury at the location where it occurred was remote. 32 As noted above, the medical literature put forward by the experts for both the plaintiffs and by the defendants clearly indicates that the risk for ureteric injury is low. Both parties referred to the SOGC document which stated: Ureteric injuries at the time of gynecological surgeries occur infre- quently with reported rates of 0.24-0.4 percent ... ureteric injuries are the most common complication of gynecological surgery leading to litigation accounting for seventeen per cent of non obstetrical legal actions initiated against obstetricians and gynecologists... Although identification of the ureter at the time of surgery reduced the instance of ureteric injury it will not entirely eliminate it.... During pelvic surgery the surgeon must be conscious of the location of the ureter during every step of the procedure... during laparoscopic surgery, the same level of caution is recommended, with particular attention to the risk of cautery and stapling devices. 33 The court accepts that the rate of injury is low. Dr. Kives testified that ureteric injuries are typically under reported because they are not identified at the time of surgery. 34 Based on the testimony of the experts at this trial, a review of the literature entered into evidence and the comments of the medical witnesses on the medical literature, I do not view the mere fact of the low incidence of injuries of this type combined with the fact that injury occurred in this case as being sufficient to create a finding of negligence. In this finding, I rely on the jurisprudence which holds that the fact of the Campbell v. Fairley F.B. Fitzpatrick J. 325

injury does not by itself bespeak negligence. To me, the fact of the injury together with the fact that it doesn’t often occur are two sides of the same coin. There must be more circumstantial evidence to lead one to a finding of negligence in these types of cases.

3) There was a need for extreme care in the location where the injury occurred because the ureter is not capable of being visualized at that location. 35 No medical expert at this trial disagreed with this proposition. Ac- cordingly, I believe I am called upon to assess the explanation as to how the operation was carried out by those who performed it, while at all times considering the opinions of the experts called by the parties as to their views of whether the care provided met an acceptable standard of care. In this respect, the testimony of Dr. Fairley and Dr. Victory as to the manner in which they carried out the operation was critical to my decision as to whether they and their explanation of what occurred indicated that they met the standard of care as expressed by the experts called by the parties. 36 It is very important to understand that in the course of this operation both surgeons were actively involved at all material times. In the Thun- der Bay hospital operating room where this operation occurred, there were four television screens used by the surgeons. On all four screens was projected the same view from the laparoscopic camera which was inserted in to Ms. Campbell’s abdomen. The screens were in such a position that Dr. Fairley and Dr. Victory and all the nurses who were involved in assisting in the operation, at all times, had a clear view of the surgical field being projected by the laparoscopic camera. Dr. Fairley and Dr. Victory sat on either side of Ms. Campbell. A nurse or a medical student sat between Ms. Campbell’s legs to assist the operation by manipulating a device which was inserted in to her vagina at the beginning of the operation. Both Dr. Fairley and Dr. Victory testified that at all times during the operation, they kept their eyes on at least one of the four television screens. I find that they constantly observed the field of the surgery. This, in my view, represented the actions of reasonably competent surgeons performing their duties within the standard of care owed to the patient. 37 What was also significant to my decision concerning the conduct of the doctor defendants was the technology that was deployed to perform the surgery and how the doctors described their use of it. The instrument 326 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

used to do the cutting and grasping is known as the Harmonic Ace scalpel. The instrument operates as a grasping tool, a cutting tool and a cauterizing tool. The cauterization is completed by the high speed of the blade. The Harmonic Ace blade moves at such a high speed so as to create the friction necessary to immediately coagulate and seal the tissue to which it is applied. 38 The Harmonic Ace has two trigger mechanisms. The first trigger allows the surgeon to grasp the tissue. The second very distinct trigger ac- tivates the blade. The activation of the blade was described by Dr. Vic- tory as “firing the instrument”. In the procedure at issue, as Dr. Victory was acting as preceptor, he was responsible for directing Dr. Fairley as to when exactly to activate, or fire, the instrument. Dr. Fairley confirmed in his testimony that he did not activate the instrument without the express instruction of Dr. Victory. While both surgeons would be watching the surgical site at the same time, it was only on Dr. Victory’s order that Dr. Fairley would activate the Harmonic Ace to do any cutting or cauterizing action. 39 Both doctors testified that they were acting as a team but it’s clear from the testimony presented that Dr. Victory was the physician in charge. Dr. Victory testified that he had completed a great number of LAVH surgeries. The open and candid demeanor of both doctors indicated to me that they were both extremely knowledgeable of the nature of the surgery they were performing, that they understood what they had to do to avoid causing injury to the patient and they carried out the procedure as it had been described by three other expert witnesses in a manner that met the standard of care. I find that Dr. Victory was sufficiently experienced, competent and familiar with the procedure at issue to preceptor the surgery and successfully assist Dr. Fairley in its completion. 40 I find that the team of doctor defendants, completing the operation as they described in their testimony, did not know, nor would they have suspected, that the ureter would be transected when they commenced the cutting operation in the area of the cardinal and uterosacral ligament in Ms. Campbell’s pelvic area. Further I find that a reasonably prudent surgeon completing the procedure within the accepted standard of care would not have known nor been aware that a ureter transection had occurred in these circumstances. 41 I find that there was no evidence given by the plaintiffs’ experts that would suggest that Dr. Fairley did not properly hug the cervix in the area where the ureter was transected. Both Dr. Fairley and Dr. Victory testi- Campbell v. Fairley F.B. Fitzpatrick J. 327

fied that at all times they were carefully watching the surgical site and they did not activate the Harmonic Ace in a way that constitutes negligent action on their part. I find that Dr. Fairley did not wander from the appropriate surgical field. I find that Dr. Victory at all times directed him and was observing him and would not have instructed him to activate the scalpel save and except when the scalpel was hugging the cervix. There- fore I find that the doctor defendants exercised the appropriate level of extreme care in the area where the injury occurred and this, even when coupled with the fact of the injury, does not bespeak negligence in this case. I believe Ms. Campbell’s ureter was aberrant in that particular location and this explains why it was transected and why the surgeons did not recognize the transection during the course of the procedure.

4) The clear expectation that a reasonably competent surgeon will “hug” the cervix at that location so as not to damage the ureter. 42 As noted above, I find there was no evidence led at trial to conclude that Dr. Fairley did not appropriately hug the cervix. I believe that at all times he was appropriately assisted by Dr. Victory, particularly with respect to when the instrument should be “fired”. This team did not breach the standard of care owed to Ms. Campbell.

5) The fact that the plaintiff’s anatomy was understood to be normal and she did not have any histories of prior surgery or procedures nor did she have any pathologies that would have altered the location of her ureter or drawn her right ureter closer than normal to the side of her cervix. 43 All the medical witnesses agreed that there was no evidence of abnormal anatomy or pathological history indicating that the course of Ms. Campbell’s right ureter would have been such that it would course through the surgical field. In fact it did. However, as I have found that the anatomy of the plaintiff was aberrant in the location where it was transected, the surgeons would not, and could have not have been reasonably expected to know that this would be the case. Without better evidence that the doctors performed the surgery poorly or wandered away from the area that they needed to transect, this aspect does not alter my thinking concerning the allegation of negligence against the defendants. 328 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

6) There was no mention of aberrant anatomy in the surgical note provided by Dr. Fairley post operatively. 44 The plaintiff accurately points out that the defence of aberrant anatomy is not expressed in the defendant’s surgical note. It was also not expressly set out in the statement of defence. The defendants candidly acknowledge that the statement of defence was lacking in particulars and did not specifically identify this defence. Clearly, however, in the course of the evidence this defence was raised. The plaintiff did not seek an adjournment of the trial or indicate that it was so surprised by the defence that it was unable to appropriately respond to it in the course of the trial. The defence of aberrant anatomy was raised in a defence expert report. I am not prepared to draw any adverse inference from the lack of particulars in the statement of defence or the post operative note. As far as the post operative note goes, Dr. Fairley did not know at the time he dictated the note that the ureter had been transected. It is logical he did not note it at the time. However, at trial, this aspect of the defence was clearly made out as a reasonable explanation for why the injury occurred.

7) Dr. Fairley was a relatively inexperienced surgeon and he in fact did the cutting operation. 45 Dr. Fairley clearly admitted that this was only his fifth LAVH. How- ever, he had performed a number of other surgeries laparoscopically and had done hundreds of hysterectomy operations. This is significant because, in this case, what is important is the surgeon’s ability to identify the anatomy of the patient. The plaintiffs argue that the doctors “wandered” away from the area where they should have been cutting into a region where they “would get in trouble”. The fact of inexperience would be relevant if I found that in fact that the surgeons had actually wandered where they shouldn’t have. As noted above, I find that Dr. Fairley was an experienced surgeon as he was very familiar with the anatomy at issue, but his lack of familiarity with utilizing laparoscopic techniques in this particular case was more than compensated for by the oversight and assistance given in the procedure by Dr. Victory. They both understood completely what they were looking at and what their instruments were doing. At all times it was Dr. Victory who made the call as to when to actually cut and cauterize the patient; I find he and Dr. Fairley exhibited skill and ability sufficient to satisfy the standard of care they owed their patient in this case. Campbell v. Fairley F.B. Fitzpatrick J. 329

8) The median distance from the medical literature put before the court indicates that the ureter is expected to be centimeters from the cervix and this distance should allow sufficient room to prevent such an injury. 46 Medical literature at trial indicated that the median distance from a ureter to the cervix is two centimeters. However, this is a median which only suggests this as a midpoint and a range; it is not specific to any particular patient. All the medical witnesses agreed that Ms. Campbell’s right ureter could have been anywhere from 5 centimeters to 1 centimeter from the cervix. In this case, Ms. Campbell’s right ureter followed through an area that the surgeons were required to dissect in order to remove the uterus. Again, based on my finding of where the injury occurred and the aberrant nature of Ms. Campbell’s anatomy in that particular area, the medical literature observations concerning a median does not assist the plaintiff in qualifying as circumstantial evidence sufficient to found negligence. In my view, this particular aspect of the plaintiffs’ argument played a strong part in Dr. Cowan’s opinion. However, because Dr. Cowan opined quite vigorously that the injury occurred in a location which was not ultimately adopted by the plaintiff I do not give his evidence a great deal of weight overall. While he was helpful in providing an anatomy lesson at the commencement of trial, his evidence was that when he performs a LAVH, he does not operate with laparoscopic instruments to cut the cardinal or uterosacral ligament. He performs this part of the operation “from below” through incisions made in the vagina. 47 The distance argument also struck me as being very much akin to the “fact of the injury” argument. To me, the plaintiff had to prove that in conducting the operation, given where the injury occurred, the doctors did not take sufficient caution or acted in a careless fashion in order to permit a finding of negligence. Given the fact that I have not given much weight to the opinion of Dr. Cowan, I was left with the opinion of Dr. Newton concerning the conduct of the defendant doctors. Dr. Newton did concede that a ureteric injury can occur in the hands of a careful and competent gynecological surgeon. Also, from his testimony, it appeared to me that Dr. Newton has not been as actively involved in LAVH procedures in recent years as the result of a back injury he suffered which apparently limits his ability to assist in these procedures. He testified that in the late 1990’s he completed 90 to 100 of these procedures as the primary surgeon. In my view, his experience, while sufficient to qualify him as an expert for this trial, was not as broad as that of Dr. Victory or 330 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

Dr. Kives, and was not sufficient for me to accept his opinion that the defendant doctors acted negligently in this case.

9) The plaintiff claims that Dr. Fairley did not advise Ms. Campbell until the next day that she had suffered a ureteric injury 48 There was a dispute in the evidence concerning this point. It was agreed that when the surgery was completed Ms. Campbell was kept overnight in hospital for observation. Ms. Campbell and Mr. Schmidt testified that the next morning when Dr. Fairley made rounds, he met with Ms. Campbell and Mr. Schmidt. Some key particulars of that discussion are disputed. 49 During that discussion, both Ms. Campbell and Mr. Schmidt indicate that they did not recall Dr. Fairley specifically advising them of his suspicion that Ms. Campbell had a ureteric injury. Ms. Campbell testified that she was having no problems and wanted to go home. Her evidence on this point is contrary to that put forward by Dr. Fairley. Dr. Fairley testified that he quite clearly told both Ms. Campbell and Mr. Schmidt that he suspected that Ms. Campbell had sustained a ureteric injury during the surgery. Also he made a note of this on Ms. Campbell’s chart at the time. I accept Dr. Fairley’s testimony that he told Ms. Campbell and Mr. Schmidt that he suspected a ureteric injury at that time. 50 Also, on the same medical record that was entered into evidence in the joint document brief of the parties, a resident noted that Ms. Camp- bell was complaining of some post operative pain. I accept that Ms. Campbell indicated to Dr. Fairley that she was complaining of abdominal pain. This is why Dr. Fairley did a physical examination of her which included touching her right side, her left side and her abdomen. Ms. Campbell specifically does not recall being touched on the abdomen or on the left side, but given the resident’s note concerning her complaint, it seems logical to me that Dr. Fairley would re-examine her in that way. 51 In assessing Ms. Campbell’s evidence, I took particular note of her evidence of how she perceived Dr. Fairley throughout the course of this unfortunate series of events. Ms. Campbell clearly testified that up to, and including, the period of her second surgery to repair the ureteric injury, she had the utmost confidence in Dr. Fairley. It was only as a result of a conversation that he had with her post-operatively from the second operation which occurred on May 10, that she became disillusioned with him. At that point she testified that she became angry, felt intimidated and became dissatisfied with Dr. Fairley’s conduct. In my view, it was Campbell v. Fairley F.B. Fitzpatrick J. 331

only at that point that she would have begun to consider what had occurred and I do not believe she completely and accurately remembers the events that occurred the morning after her surgery. Indeed, after her surgery she seemed to have been focused on going home, a natural tendency in that situation. In fact, she convinced Dr. Fairley to discharge her, although Dr. Fairley had clearly arranged for her to return to the hospital on the morning of the next day to have additional blood work completed. Dr. Fairley had seen an increased level of creatinine from his post operative tests which could have, and in this case did, indicate a ureteric injury. This takes us to the next aspect of the plaintiffs’ argument.

10) Dr. Fairley ordered a creatinine test which while it can be indicative of elevated levels of creatinine and can be indicative of ureteric injury, can be also indicative of other things not specific to ureteric injuries. 52 Dr. Fairley testified that it was his regular procedure to order creatinine level preoperatively and post-operatively. None of the other doctors who were called to testify indicated that it was their practice to order creatinine tests post operatively. The SOGC clinical practice guideline did not recommend routine pre-operative creatinine tests be obtained from all surgical patients. However, Dr. Fairley indicated that it was his usual practice. He also indicated that in Thunder Bay there were other gynecologists who follow this same procedure. 53 I would have given greater weight to this aspect of the plaintiffs’ argument had evidence been placed before me that it was not Dr. Fairley’s practice to regularly order creatinine tests for his hysterectomy patients. I find that Dr. Fairley was not doing anything that indicated any negligence or belief on his part that something had gone wrong. While performing this testing is not considered within the scope of the usual standard of care, it was not a procedure which was harmful to the patient. In fact, in this case it was the part of the methodology that identified a ureteric injury. Accordingly, I do not take from the fact that creatinine tests where ordered, that Dr. Fairley was suspicious of something that he did not disclose to his patient. Also to me it does not indicate he was suspicious at the time he was conducting the operation, and at the time he concluded the operation, that a ureteric injury had occurred. I find that Dr. Fairley only became aware of the possibility of a ureteric injury upon review of the creatinine test, which he did not have until approximately 9 am, May 10, 2009, the day after the surgery occurred. 332 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

11) The plaintiff claims that following her second surgery to correct the ureteric injury, Dr. Fairley had a discussion with her concerning a consent document she signed. 54 The evidence of Dr. Fairley, on the one hand, and Ms. Campbell and Mr. Schmidt on the other, differ as to what precisely was discussed following Ms. Campbell’s second surgery to repair the damage to her ureter. Ms. Campbell testified that she recalls Dr. Fairley saying words to the effect “remember you signed this paper” as she was being wheeled from the operating room to the post operative recovery room. Dr. Fairley testified that he agreed that he did wheel her from the operating room to the recovery room but that he would not have wheeled her from the recovery room to her ward room. However, Dr. Fairley did say that he had a discussion with Ms. Campbell in her ward room concerning what had occurred. 55 I accept that while Dr. Fairley had advised her of his suspicions of a ureteric injury, Ms. Campbell did not know specifically what had occurred to her prior to her undergoing the second surgery. What she did know was that she was in pain and that Dr. Fairley and then Dr. Abdel- Malak (the urologist who repair Ms. Campbell’s ureter in the second procedure) were going to fix it. Ms. Campbell did sign a consent to the second surgery which was done by way of a laparotomy. 56 However, when specifically questioned about when the discussion might have occurred, Dr. Fairley did testify that the discussion occurred at a time when the effects of the anesthesia that Ms. Campbell had experienced during her second surgery may still be impacting her. I find this to have in fact been the case given the timing of the discussion. Again, the discussion occurred when Ms. Campbell had just endured a second surgery in a very short time. If she hadn’t fully understood that something had gone wrong the first time, (although I do find she was told by Dr. Fairley that he suspected a ureteric injury) she certainly did appreciate it by the time of the second surgery. I believe this would have made her upset, and understandably so; however, that upset coupled with the effects of the anesthetic have, in my view, prevented her from accurately recalling the complete nature of what Dr. Fairley said during their discussion both while being wheeled down the hall and in her ward room. I find Dr. Fairley did discuss with her the contents of the consent document she had signed but it was done in a broader context. It was not done to indicate that Dr. Fairley was trying to protect himself but rather was designed to put into context the fact that Dr. Fairley wanted to make it Campbell v. Fairley F.B. Fitzpatrick J. 333

clear to Ms. Campbell that he had indicated to her there was a possibility of an injury that had happened and now had been repaired. I find that although Ms. Campbell’s position is understandable, it does not by itself or even in connection with the other alleged circumstantial evidence referred to by the plaintiffs, represent facts sufficient to make a finding of negligence against Dr. Fairley or Dr. Victory.

12) The day after Ms. Campbell’s surgery Dr. Fairley met with her and the plaintiff claims he only checked a right kidney on the backside and did not inspect her left kidney nor her abdomen. 57 My findings concerning the nature of the examination performed by Dr. Fairley are set out above. Again I do not find the activities of Dr. Fairley in respect of what he did post operatively are evidence sufficient to make a finding that during, or immediately after the procedure, he suspected something was wrong and then effectively ignored it until the following morning.

13) The plaintiff claims the operation was conducted in too fast a manner and had been booked for too short a time frame. 58 Dr. Newton testified in chief that he would have booked two to three hours for the procedure given that Dr. Fairley was being preceptored by Dr. Victory. Dr. Newton candidly testified that he had never acted as a preceptor. In cross examination, Dr. Newton admitted that 1.5 hours was a reasonable amount of time for this type of procedure. I do not believe that Dr. Fairley and Dr. Victory rushed the procedure. Clearly they decided in the middle of the procedure to switch from a total laparoscopic hysterectomy to a LAVH. Dr. Newton opined the decision to switch was precipitated by the fact that Dr. Fairley had “gotten in too deep” and had made an incision into the vagina which was not previously anticipated. Dr. Newton also opined that the decision to change from a TLH to an LAVH was done in the interest of time. Dr. Newton testified that this did not make sense to him because switching to an LAVH, in his opinion, required additional time to create a new surgical field. 59 Dr. Victory, Dr. Kives and Dr. Fairley all testified that, in this case, Ms. Campbell’s vaginal area had been prepped at the beginning of the surgery. Further, the prepping of this area is typical for all these types of procedures. In any laparoscopic pelvic surgery, even one that will be completed totally using a laparoscope, the procedure begins by inserting 334 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

a speculum or some other manipulating device into the patient’s vagina to assist manipulation of the uterus during the operation. 60 I find that Dr. Newton’s opinions concerning the time it would have taken to set up a new surgical field are not borne out of the evidence of what occurred nor are they reflective of what occurs in an operation of the type that was at issue in this trial. While I believe Dr. Newton gave his testimony in a forthright and direct manner, his opinion in regard to this aspect of the procedure lead me to not accept his opinion that Dr. Fairley and Dr. Victory acted negligently in all the circumstances.

14) The defendants claim that the ureter was aberrant only applied in respect to the very area where the ureter was transected as opposed to other areas in the pelvis which could have been visualized. 61 The theory of the defendant regarding aberrant anatomy admittedly came late in the litigation but was fully advanced at trial. The only aber- rance with respect to Ms. Campbell’s anatomy was indicated to be at the point of the transaction of the ureter. There was no evidence to the effect that the ureter was aberrant in another location. I had no evidence to suggest that it is necessary for a ureter to be aberrant in all respects for it to be aberrant in one location which I find unfortunately was the place where it was transected. I find neither Dr. Fairley nor Dr. Victory could have reasonably anticipated it to be there given Ms. Campbell’s aberrant anatomy. 62 As noted by the Court of Appeal in the Hassen case, the onus is on the plaintiff to prove that negligence by the defendant caused the plaintiff’s injury. That onus may be satisfied by circumstantial evidence which allows for an inference of negligence to be made unless the defendant negates the inference with an explanation that is at least as consistent with no negligence as with negligence. For all the reasons stated above, I find that the plaintiff has not proven that her injury, which did occur, came as the result of negligence on the part of the two doctors who are defendants in this matter. In this case, the experts all agreed on the methodology to be deployed and this was not a case where there were two schools of scientific thought put forward by the experts. They all testified as to the method that was to be utilized in this surgery. It was simply the opinion of the plaintiffs’ experts that the defendants did not act within the standard of care. For the reasons set out above I do not accept these opinions of Dr. Newton and Dr. Cowan. While it was the first time Dr. Kives had been qualified to give expert testimony before Campbell v. Fairley F.B. Fitzpatrick J. 335

this Court, she gave her testimony in a forthright and consistent manner. Her descriptions of the procedure at issue, in concert with the evidence given by the doctors who performed the operation, lead me to accept the defence that the defendants operated within the applicable standard of care and were not negligent in this case. 63 In my view, what the plaintiff experts have done is work backwards from the fact of the injury. The possibility of falling into this trap was pointed out by Lord Denning in Roe v. Minister of Health, [1954] 2 Q.B. 66 (Eng. C.A.), and was later adopted by our court in Bafaro v. Dowd, [2008] O.J. No. 3474 (Ont. S.C.J.). I believe Dr. Newton has determined that the unfortunate outcome by itself constitutes negligence. This is not the law in Canada. 64 In considering the entirety of this case, I was constantly aware of the fact that the evidence was being given about a real person who experienced a very unfortunate circumstance. Ms. Campbell and Mr. Schmidt sat through the entirety of the trial with great poise and dignity. I appreciate that they may feel let down by the system, perhaps both medical and legal because of the result that has occurred. However, while I do sympa- thize with the unfortunate nature of the plaintiffs’ experience, I do find that the evidence as presented at trial and the law that is applicable leads me to no other conclusion but to dismiss the claim. As I understand the defence seeks no costs in this case, none shall be awarded. Action dismissed. 336 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

[Indexed as: Charlebois v. Stewart Title Guaranty Co.] Henri Charlebois (Applicant) and Stewart Title Guaranty Company (Respondent) Ontario Superior Court of Justice Docket: CV-10-414097 2011 ONSC 6824 Sidney N. Lederman J. Heard: November 8, 2011 Judgment: December 1, 2011 Insurance –––– Actions on policies — Commencement of proceedings — Obligations of insurer — To defend — Miscellaneous –––– Title insurer (“insurer”) entered into agreement with provincial law society to indemnify its members for claims made under title insurance policy (“agreement”) — Lawyer was member of law society and also had professional negligence insurance with LawPro — Lawyer acted for both buyers and sellers in real estate transaction (“subject transaction”) — Buyers had obtained title insurance through insurer — After closing of subject transaction, conservation authority issued work order with respect to unauthorized construction done on property by prior owners — Buyers commenced action against lawyer and others — Lawyer brought application for declaration that insurer was obligated to defend and to save him harmless from his defence costs — Application granted — Insurer’s arguments challenging agreement based on lawyer’s insurance with LawPro were foreclosed because of res judicata — These arguments failed in prior proceedings in which insurer challenged agreement — Insurer’s new argument challenging agreement based on law of contribution was also foreclosed — Scope of res judicata included not only issues raised in prior proceedings, but new issues that were intimately related and could have been raised — Agreement applied despite fact that lawyer paid transaction levy to law society — Lawyer only paid transaction levy in relation to his representation of sellers — It would not make commercial sense if agreement did not apply in this situation, since there was greater risk for lawyer in acting for both sides in subject transaction — LawPro should not be required to incur lawyer’s defence costs until those costs were apportioned between LawPro and insurer after trial — That matter was res judicata based on prior proceedings. Cases considered by Sidney N. Lederman J.: Freedman v. Toronto (City) (2009), [2010] I.L.R. I-4924, 81 C.C.L.I. (4th) 85, 2009 CarswellOnt 6938 (Ont. S.C.J.) — considered Charlebois v. Stewart Title Guaranty Co. Sidney N. Lederman J. 337

Las Vegas Strip Ltd. v. Toronto (City) (1996), 13 O.T.C. 308, 1996 CarswellOnt 3426, 34 M.P.L.R. (2d) 233, 38 C.R.R. (2d) 129, 30 O.R. (3d) 286, [1996] O.J. No. 3210 (Ont. Gen. Div.) — referred to Las Vegas Strip Ltd. v. Toronto (City) (1997), 32 O.R. (3d) 651, 99 O.A.C. 67, 1997 CarswellOnt 1279, [1997] O.J. No. 1033 (Ont. C.A.) — referred to Nakhuda v. Stewart Title Guaranty Co. (2010), 2010 ONSC 4926 (Ont. S.C.J.) — considered Smith v. Empire Life Insurance Co. (1996), 1996 CarswellOnt 1182, 19 C.C.E.L. (2d) 171, [1996] I.L.R. I-3312, [1996] O.J. No. 1009 (Ont. Gen. Div.) — referred to Stewart Title Guaranty Co. v. Zeppieri (2009), 2009 CarswellOnt 365, [2009] I.L.R. I-4784, 70 C.C.L.I. (4th) 247, 307 D.L.R. (4th) 539, 94 O.R. (3d) 196, [2009] O.J. No. 322 (Ont. S.C.J.) — followed

APPLICATION by lawyer for declaration that title insurer was obligated to defend and to save him harmless from his defence costs in action arising from real estate transaction.

Gavin J. Tighe, James R.G. Cook, for Applicant Patrick Monaghan, Clarence Lui, for Respondent

Sidney N. Lederman J.: Nature of Application 1 The applicant, Henri Charlebois (“Charlebois”), seeks a declaration that the respondent, Stewart Title Guaranty Company (“Stewart Title”) is obligated to defend Charlebois to save him harmless from his defence costs incurred to date and for future defence costs until final disposition defending the action commenced against him by Jill and Paul Hardy (the “Hardy action”), and be required to pay such costs subject to retroactive adjustment upon the settlement or final disposition of the Hardy action.

The Hardy Action 2 Charlebois was a lawyer acting for both the vendors (Seth and Linda Pasher) and the purchasers (Jill and Paul Hardy) in a residential real estate transaction. The property at issue was a lakefront property in Bur- lington, Ontario that backed onto Lake Ontario. After the Hardys had purchased the property, it was discovered that a retaining seawall had been built by prior owners without a permit from the Conservation Au- thority as required. When the nature of the work was discovered by the Conservation Authority it issued a work order in relation thereto. The purchasers, the Hardys, had obtained title insurance through Stewart Ti- 338 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

tle and subsequently sued Charlebois and others in the Hardy action. Charlebois commenced a third party claim against Stewart Title and also commenced this application to determine Stewart Title’s duty to defend pursuant to an agreement entered into by Stewart Title with the Law So- ciety of Upper Canada (the “Indemnity Agreement”). 3 Stewart Title had brought a motion to strike or stay the application on the ground that it is duplicative of the third party claim brought by Char- lebois against Stewart Title. Spence J. dismissed Stewart Title’s motion. On June 14th, 2011, Low J. dismissed a motion by Stewart Title for leave to appeal.

The Indemnity Agreement 4 In the Indemnity Agreement entered into between Stewart Title and members of the Law Society of Upper Canada (“LSUC”), Stewart Title took on the obligation of indemnifying and saving harmless lawyers, like Charlebois, against claims made against them in relation to coverage provided under a title insurance policy. Specifically, Stewart Title agreed to: [I]ndemnify and save harmless the member of the Law Society of Upper Canada and the member’s law firm (the “member”) acting as solicitor(s) for the transferee(s), charge(s) and/or title insurer(s) from and against any claims arising under the insurance policy(ies), except for the member’s gross negligence or wilful misconduct. (Emphasis added) 5 The Indemnity Agreement has been previously judicially interpreted in Stewart Title Guaranty Co. v. Zeppieri (2009), 94 O.R. (3d) 196 (Ont. S.C.J.) in which it was held that the obligation to save the lawyer harmless encompasses the duty to pay defence costs of any claim arising under the title insurance policy. To save a person harmless does not mean restoring a person to his or her former state after suffering harm. Saving someone harmless is an obligation that goes beyond the obligation to indemnify. As stated by Brown J. at paragraph 17, the obligation to save harmless means that a lawyer “should never have to put his hand in his pocket” in respect of a claim covered by the terms of the Indemnity Agreement and that Stewart Title was required to fund, on an ongoing basis, the reasonable defence costs of a LSUC member against whom a claim is made arising under a title insurance policy. 6 In his reasons, Justice Brown held that a determination of whether Stewart Title has a duty to defend a member of the LSUC Society requires a consideration of the allegations in the pleadings, not an analysis Charlebois v. Stewart Title Guaranty Co. Sidney N. Lederman J. 339

of the merits of the plaintiff’s claim under the title insurance policy. (See also Nakhuda v. Stewart Title Guaranty Co., 2010 ONSC 4926 (Ont. S.C.J.) at paragraph 6.) 7 In the instant application, counsel for Stewart Title conceded that at least some of the claims arise out of the title insurance policy in question.

Issues Raised by Stewart Title in This Application a) Double Insurance 8 Stewart Title takes the position in this application that there are “double insurance” issues in that Charlebois is insured for the errors and omissions claim of the Hardys through LawPro, the insurer of Ontario lawyers. When the claim was reported, LawPro appointed counsel and the claim was defended. The intention of LawPro is to continue with the defence of Charlebois, i.e. LawPro is not looking to Stewart Title to take over carriage of the defence or to appoint and instruct counsel. 9 Stewart Title submits that there is no evidence that Charlebois has paid any money in the defence of the action against him and his law firm. It takes the position that Charlebois is entitled to only one indemnity and it is being provided by LawPro. 10 Stewart Title submits that LawPro agreed in the policy with Charle- bois to defend and indemnify him. He is not entitled to maintain this application for his own benefit. Stewart Title submits that in double insurance situations, Charlebois, who is being fully indemnified, has no primary right against any third party, so that there is no subrogated claim against Stewart Title. Rather, the issue is one of the law of contribution, i.e. a right existing between two insurers and is to be asserted in proceedings brought directly by one insurer against another, in the names of the insurers. Stewart Title submits, therefore, that Charlebois has no status to bring this application.

i) Res Judicata 11 Charlebois submits that this argument is foreclosed because of res judicata. Stewart Title has brought prior judicial proceedings challenging the Indemnity Agreement. It was unsuccessful in each of those cases and Charlebois takes the position that the issues of scope and interpretation of the Indemnity Agreement between Stewart Title and the beneficiaries of the Indemnity Agreement are res judicata. 340 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

12 In Zeppieri, supra, the scope and interpretation of the Indemnity Agreement was considered and the court held that there was a duty on Stewart Title to defend the proceeding against the solicitor. The Indem- nity Agreement was subsequently litigated in Freedman v. Toronto (City), 2009 CarswellOnt 6938 (Ont. S.C.J.) wherein Swinton J. held that the interpretation of the Indemnity Agreement was res judicata and that Stewart Title was “attempting to relitigate the meaning of the Indemnity Agreement” (paragraph 21). Neither the Zeppieri nor the Freedman decisions were appealed by Stewart Title. 13 In the instant application, Stewart Title again challenges its obligation under the Indemnity Agreement to defend a member of the LSUC. This time, it asserts that the law of contribution should apply and that Charle- bois has no status to bring this claim. Stewart Title takes the position that neither res judicata nor abuse of process applies in these circumstances as the particular issue raised between these parties has never been determined. 14 However, the doctrine of res judicata includes within its scope, not only issues that were directly raised and decided in a prior judicial proceeding, but any new issues that are intimately related and could have been reasonably raised as well. (See Las Vegas Strip Ltd. v. Toronto (City) (1996), 30 O.R. (3d) 286 (Ont. Gen. Div.) aff’d (1997), 32 O.R. (3d) 651 (Ont. C.A.)). There are no special circumstances which would warrant or justify Stewart Title raising this new issue at this time. Swin- ton J. has already determined that such matters are res judicata as it is merely an attempt to relitigate issues that have already been determined. For the same reason, the doctrine of res judicata catches this new attempt by Stewart Title to raise the issue of the law of contribution in respect of the interpretation of the Indemnity Agreement and it is precluded from doing so at this time.

ii) The Merits 15 In any event, these arguments about “double insurance” and LawPro being on the cover were made and failed in the Zeppieri case. As Brown J. found, the Indemnity Agreement is a commercial contract, not an insurance policy and, therefore, the issue is not one of competing insurance policies and thus the law of contribution is not engaged. In Zeppieri, supra, Brown J. stated at paragraphs 26 and 27: [26] Stewart Title argues that neither rationale applies in the case of the 2005 Indemnity Agreement. First, it contends that because a law- Charlebois v. Stewart Title Guaranty Co. Sidney N. Lederman J. 341

yer has recourse to the benefit of a defence provided by his LAW- PRO professional liability policy, subject to a $5,000.00 deductible, Stewart Title’s agreement to “indemnify and save harmless” a member does not require it to fund on-going defence costs. I do not find this argument persuasive... [27] Stewart Title also argued that it would be inconsistent to require it to fund a member’s defence costs while LAWPRO retains control over the conduct of the defence. Stewart Title is a sophisticated insurer. It could have raised that issue in its negotiations with the LSUC; there is no evidence before me that it did. Nor is there any evidence in the record which would permit me to assess the relative business risks and benefits of such an arrangement, and whether it could be characterized as a commercial absurdity. 16 I agree with those observations. 17 This is a case of the interpretation of a commercial contract, not double insurance. Accordingly, on the merits, Stewart Title’s argument about double insurance fails in any event.

b) The Effect of a Transaction Levy 18 Stewart Title submits that wording of the Indemnity Agreement in favour of Charlebois, by its terms, does not apply where, as here, a transaction levy surcharge has been paid with respect to the subject transaction. 19 The relevant portion of the Indemnity Agreement states that it is not to apply “where it is shown that a Real Estate Transaction Levy Surcharge was paid”. The Indemnity Agreement is “pursuant to the requirement of the Endorsement(s) to the Law Society Professional Liabil- ity Insurance Policy that deal with the Real Estate Transaction Levy Surcharge”. 20 The applicable errors and omissions policy issued by LawPro to Charlebois provides in Endorsement No. 2, that a $50 premium surcharge (the “levy”) is payable in real estate transactions in certain circumstances. 21 Endorsement No. 2 headed “Real Estate Transaction Levy Surcharge” reads in part as follows: A. Definition of real estate transaction: For the purposes of this rule, “real estate” means a transaction that directly or indirectly results in the transfer, charging or insuring of title to land in Ontario, and shall include any one or more of the fol- 342 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

lowing services by a solicitor: the receipt of instructions, preparation of documents, searches and/or the providing of one or more opinions or certificates with respect to the title, transfer or charge, and/or with respect to the issuance of any title insurance policy. B. Levy surcharge payable: (i) Subject to subparagraph B(ii), (iii), and (iv), and any exclusions contained within this endorsement, each member required pursuant to By-Law 16 of the Law Society Act, R.S.O. 1990, c.L.8, to pay a professional liability insurance premium levy, shall pay to The Law Society of Upper Canada $50 inclusive of taxes, in respect of each real estate transaction in which the member acted for one or more of the following parties, namely the transferor, transferee, chargee, chargor or the title insurer, in respect of either or both of the transferee and chargee...... C. Exclusions No levy surcharge is payble by a member under this endorsement in respect of a real estate transaction if: ..... (v) the real estate transaction closes on or after January 1, 1998, and a title insurance policy(ies) is (are) issued in favour of all of the transferees and chargees obtaining an interest in or charge against the land which is the sugject of the real estate transaction, provided that: (a) the member does not act for the transferor in respect of the transaction; (b) the title insurer(s) issuing the title insurance policy(ies) has(have) in all cases entered into a Release and Idemnity Agreement with members of the Law Society of Upper Canada, in a form acceptable to the Law Society of Upper Canada, wherein the title insurer(s) irrevocably agrees(agree) to: (i) indemnify and save harmless the member from and against any claims arising under the title insurance policy(ies), except for the member’s gross negligence or willful misconduct; and (ii) release its right to maintain a claim against the member(s) acting as solicitor(s) for the transferee(s), chargee(s) and/or the title insurer(s), excecpt for the member’s gross negligence or willful misconduct; and Charlebois v. Stewart Title Guaranty Co. Sidney N. Lederman J. 343

(c) the member(s) is(are) not obliged to pay any deductible amount to the title insurer(s) in respect of one or more claims made under the title insurance policy(ies) where the deductible amount is or may be the subject of recovery under the POLICY. 22 Charlebois did pay a $50 transaction levy surcharge in relation to the Hardy real estate transaction. Charlebois submits that that the levy was paid only in relation to his representation of the sellers in the real estate transaction. The sellers have not sued Charlebois; rather, the purchasers (the Hardys) who obtained title insurance through Stewart Title have sued Charlebois. It is the position of Charlebois that no levy was paid on behalf of the Hardys by him. 23 In other words, Charlebois submits that although he was required to pay the levy because he acted for the sellers, he also received an exemp- tion in acting for the buyers, the Hardys. He did not pay the levy twice. He argues that the Indemnity Agreement was given by the title insurer in Ontario to all members of the LSUC in exchange for inter alia a waiver of the levy. 24 Stewart Title submits that by the definition of real estate transaction in the levy surcharge Endorsement there can only be one transaction resulting in the transfer of title to land. There was, in this instance, one $50 payment made for the real estate transaction. In other words, one levy is to be paid and it does not matter how many parties the lawyer is acting for. It submits that when the levy is paid according to the terms of the Indemnity Agreement, there is no coverage. 25 In this transaction, Charlebois acted for both the sellers and the purchasers. Had this been a situation where one lawyer acted for the sellers and another for the purchasers, the $50 levy would be payable only by the sellers’ lawyer and not by the purchasers’ lawyer if the purchasers acquired title insurance. 26 To give effect to Stewart Title’s argument would mean that in any dual retainer situation, the Indemnity Agreement would not apply at all. This would not make commercial sense. It would certainly be an anom- aly that there is no coverage for the greater risk when a lawyer acts for both sides of the transaction rather than when the lawyer acts for just the purchasers. In such situations the title insurer should not be relieved when the lawyer acts for both sides. 27 As noted by Brown J. in Zeppieri, supra, at paragraph 27, Stewart Title is a sophisticated insurer who would readily have negotiated clearer 344 CANADIAN CASES ON THE LAW OF TORTS 91 C.C.L.T. (3d)

wording in the Indemnity Agreement if it was intended to create an ex- emption for this circumstance.

The Timeliness of the Application and the Limitation Period 28 Stewart Title argued that as the underlying action has been set down for trial, this application is untimely and it will result in duplication, wasted expense and court time at several levels and conflates the application and the action procedure. This was the very argument advanced in the motion to strike the application and it was unsuccessful at that time and this argument, too, is res judicata. 29 With respect to the limitation period, the obligation of Stewart Title under the Indemnity Agreement is ongoing. The limitation period renews itself every time a dollar is required to be spent on the defence. (Smith v. Empire Life Insurance Co. (1996), 19 C.C.E.L. (2d) 171 (Ont. Gen. Div.) at paragraph 13). 30 The application seeks relief which is prospective and is ongoing, as Low J. pointed out in dismissing the motion for leave to appeal in Zep- pieri, supra, as follows: I am satisfied that the result was correct. Although both the application and the third party proceeding seek payment by Stewart Title for defence costs, the application seeks relief which is prospective and ongoing whereas the third party proceeding seeks payment for ex- penses incurred in the past. The practical effects are clearly different, particularly on a cash flow basis. 31 The application was issued on November 12, 2010 and any expense costs prior to November 12, 2008 (two years earlier) may be statute barred in respect of this application. But because Charlebois’ third party claim issued on April 23, 2009 in the underlying action, is for monies spent on defence, that third party proceeding would cover claims back two years, to April 23, 2007, which is a time before Charlebois was sued in the Hardy action, i.e. December 17, 2007.

(c) Initial Responsibility for Defence Costs 32 Stewart Title concedes that some of the claims asserted by the Hardys against Charlebois fall within the coverage of the title insurance policy; however, it takes the position that it has no duty to defend for uncovered claims. Accordingly, it submits that LawPro should incur defence costs and then, at the end of the underlying action LawPro can seek reimburse- ment of costs from Stewart Title for those claims that are, in fact, cov- Charlebois v. Stewart Title Guaranty Co. Sidney N. Lederman J. 345

ered. In other words, apportionment should be decided upon the completion of the trial of the third party claim and LawPro should incur defence costs in the meantime. 33 In both the Zeppieri and Nakuda, supra, applications, it was held that if there are claims that arise under the policy then the obligation under the Indemnity Agreement to save the insured harmless and to fund those costs apply. In both of those applications it was held that Stewart Title has the obligation to provide immediate defence costs subject to a re- adjustment after final disposition of these matters. 34 As Stewart Title argued or had the opportunity to make submissions with respect to the timing of the payment of defence costs in both those applications, the matter is res judicata. In any event, I agree with the decisions in those cases that a proper interpretation of the Indemnity Agreement requires Stewart Title to be responsible in the first instance for defence costs subject to re-adjustment if necessary after the disposition of the underlying action and third party claim.

Conclusion 35 An order will, therefore, go for a declaration that Stewart Title owes a duty to defend Charlebois and save Charlebois harmless from his defence costs incurred and to be incurred in the Hardy action and that it be required to pay such costs, subject to retroactive adjustment upon the settlement or final disposition of the Hardy action. 36 I trust that the parties will be able to resolve the issue of costs of this application. If unable to do so, however, they may make written submissions within 30 days. Application granted.