Benhaim v. St‑Germain

Benhaim v. St‑Germain
Collection
Supreme Court Judgments
Date
2016-11-10
Neutral citation
2016 SCC 48
Report
[2016] 2 SCR 352
Case number
36291
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Quebec
Subjects
Torts
Notes
SCC Case Information: 36291
Decision Content
SUPREME COURT OF CANADA
Citation: Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352
Appeal heard: April 28, 2016
Judgment rendered: November 10, 2016
Docket: 36291
Between:
Albert Benhaim and Michael O’Donovan
Appellants
and
Cathie St-Germain, personally
and in her capacity as tutor to her minor son,
whose name is being kept confidential,
and in her capacity as universal legatee
of the late Marc Émond
Respondent
Coram: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 87)
Dissenting Reasons:
(paras. 88 to 135)
Wagner J. (McLachlin C.J. and Karakatsanis and Gascon JJ. concurring)
Côté J. (Abella and Brown JJ. concurring)
Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352
Albert Benhaim and
Michael O’Donovan Appellants
v.
Cathie St‑Germain, personally and
in her capacity as tutor to her minor son,
whose name is being kept confidential, and in her capacity
as universal legatee of the late Marc Émond Respondent
Indexed as: Benhaim v. St‑Germain
2016 SCC 48
File No.: 36291.
2016: April 28; 2016: November 10.
Present: McLachlin C.J. and Abella, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for quebec
Civil liability — Medical malpractice — Negligence — Causation — Evidence — Presumption of fact — Physicians negligently delaying patient’s cancer diagnosis — Patient dying of lung cancer — Physicians’ negligence undermining plaintiff’s ability to prove causation — Trial judge refusing to apply presumption of fact in favour of causation and finding causation not established — Whether trial judge required to draw adverse inference of causation or apply presumption of fact where defendant’s negligence undermines plaintiff’s ability to prove causation and where at least some evidence of causation adduced — Whether Court of Appeal justified in reversing trial judge’s decision on basis of error of law — Whether trial judge committed palpable and overriding error in appreciation of facts — Civil Code of Québec, art. 2849.
E, a non‑smoker who exercised regularly and took care of himself, died tragically of lung cancer at the age of 47. His partner, in her own name, in her capacity as tutor to her son, and as E’s universal legatee, brought an action against E’s physicians. She alleged that the negligent delay in diagnosing E’s cancer caused his death. The physicians argued that the cancer would likely have taken E’s life even if he had been promptly diagnosed, and therefore, that the delay in diagnosing him was not the cause of his death. At trial, the three expert witnesses formed opinions on the basis of incomplete information and each opinion involved some degree of speculation and estimation as to the staging of E’s lung cancer. The trial judge allowed the action in part on the basis that while E’s physicians were both negligent, their negligence did not cause E’s death. In coming to this conclusion, the trial judge recognized that she could draw an adverse inference of causation against the physicians because their negligence made it impossible to prove causation, but she drew no such inference. Damages were only awarded to E’s partner personally and in her capacity as universal legatee for the anguish caused by the physicians’ negligent handling of E’s treatment. The Quebec Court of Appeal reversed that decision. The majority held that the trial judge erred in law by failing to draw an adverse inference of causation. The concurring judge concluded that the trial judge should have found that causation had been established.
Held (Abella, Côté and Brown JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.: A trier of fact is not required to draw an adverse inference of causation or apply a presumption of fact as defined in art. 2849 of the Civil Code of Québec in medical liability cases where the defendant’s negligence undermines the plaintiff’s ability to prove causation and where the plaintiff adduces at least some evidence of causation. This Court’s decisions in Snell v. Farrell, [1990] 2 S.C.R. 311, and St‑Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, make it clear that in such circumstances, an adverse inference of causation is one that trial judges are permitted to draw. It is not one they are required to draw. In Quebec civil law, the adverse inference discussed in Snell constitutes nothing more than a presumption of fact as defined in art. 2849, and the principles laid down in Snell for drawing inferences as part of the ordinary fact‑finding process apply to triers of fact making determinations on causation. The principles must not be interpreted in a manner that alters the burden of proof or departs from the criteria for establishing presumptions of fact. In weighing the evidence, trial judges may consider the ability of the parties to produce evidence. Whether the inference or presumption arises on the facts must be assessed according to a legal, not a scientific, standard. Furthermore, because an adverse inference of causation is a component of the fact‑finding process, the decision as to whether the inference is warranted in a particular case falls within the discretion of the trier of fact, to be determined with reference to all of the evidence, and is reviewable on the stringent standard of palpable and overriding error.
In this case, despite using permissive language to describe the adverse inference discussed in Snell, the Court of Appeal failed to give effect to its discretionary nature. Indeed, by reversing the trial judge’s decision on the basis of an error of law the court wrongly treated the inference as compulsory. The trial judge did not commit an error of law in applying the rules of evidence. She applied St‑Jean, pursuant to which presumptions of causation can be applied only when they are serious, precise and concordant. She did not think that these criteria were met in this case, as she chose to believe the physicians’ expert over the plaintiff’s experts. She was not required by law to apply a presumption of fact against the physicians simply because (i) it was impossible to prove causation as a result of the physicians’ fault; and (ii) the plaintiff adduced some affirmative evidence that the physicians’ fault was linked to the loss.
The Court of Appeal also failed to show deference to the trial judge’s weighing of the evidence. The trial judge did not improperly rely on the speculative expert evidence adduced in this case at the expense of statistical evidence. Trial judges are empowered to make legal determinations even where medical experts are not able to express an opinion with certainty. Moreover, while courts may take statistics into account when determining causation, statistical evidence should be approached with caution — it is not determinative. It is also for the trial judge to decide what weight, if any, to give to statistical evidence, and drawing an inference from such evidence is an inherent, and often implicit, part of the fact‑finding process. It must be interpreted in light of the whole of the evidence, and that interpretation is entitled to considerable deference on appeal. In this case, the trial judge did not commit a palpable and overriding error in relying on the opinion of an expert who acknowledged the uncertainty in his opinion. She carefully weighed the evidence as a whole, including the statistical evidence, the evidence specific to E, and the three expert opinions, all of which involved some speculation. She made no palpable and overriding error in finding that the plaintiff had failed to establish causation on a balance of probabilities.
Per Abella, Côté and Brown JJ. (dissenting): There is agreement with the majority that the Court of Appeal erred in characterizing as an error of law the trial judge’s failure to draw an adverse inference or to apply a factual presumption under the Code. However, the Court of Appeal did not misstate the rule described in Snell and St‑Jean. Rather, it correctly summarized Snell and held that judges are permitted to draw an unfavourable inference in some circumstances.
Nevertheless, the Court of Appeal’s mischaracterization of the trial judge’s failure to draw an adverse inference is of no consequence to the outcome of the case, because that failure constituted a palpable and overriding error. The trial judge committed three errors in her understanding of the evidence. First, she misconstrued the physicians’ expert’s testimony. Second, she omitted key objective evidence, namely the fact that E survived more than 31 months even though the life expectancy of patients diagnosed with stage III to stage IV lung cancer is 8 to 12 months. This evidence was supported by uncontested statistical data, and while such data should not be the sole basis for drawing an inference or applying a presumption of fact, it may help to confirm the trial judge’s factual determinations. Third, she erred in the resulting inference‑drawing process itself. Had the trial judge disregarded the highly speculative facts on which the physicians’ expert’s testimony was based, and had she taken into account E’s survival period, she would have drawn an inference of causation. It was a palpable and overriding error not to apply the presumption in art. 2849 of the Code. In light of the trial judge’s errors, it was the role of the Court of Appeal to intervene and reweigh the evidence.
Cases Cited
By Wagner J.
Referred to: Snell v. Farrell, [1990] 2 S.C.R. 311; St‑Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98; South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31; J.G. v. Nadeau, 2016 QCCA 167; McGhee v. National Coal Board, [1973] 1 W.L.R. 1; Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557; Laferrière v. Lawson, [1991] 1 S.C.R. 541; Sentilles v. Inter‑Caribbean Shipping Corp., 361 U.S. 107 (1959); Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621.
By Côté J. (dissenting)
St‑Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Snell v. Farrell, [1990] 2 S.C.R. 311; Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98; Martel v. Hôtel‑Dieu St‑Vallier, [1969] S.C.R. 745; Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; J.G. v. Nadeau, 2016 QCCA 167.
Statutes and Regulations Cited
Civil Code of Québec, arts. 2846 to 2849.
Code of Civil Procedure, CQLR, c. C‑25.01.
Authors Cited
Cohen, L. Jonathan. The Probable and the Provable. Oxford: Clarendon Press, 1977.
Jutras, Daniel. “Expertise scientifique et causalité”, dans Congrès annuel du Barreau du Québec (1992). Montréal: Service de la formation permanente, Barreau du Québec, 1992, 897.
Khoury, Lara. Uncertain Causation in Medical Liability. Cowansville, Qué.: Yvon Blais, 2006.
Larombière, M. L. Théorie et pratique des obligations, nouv. éd., t. 7. Paris: A. Durand et Pedone‑Lauriel, 1885.
Linden, Allen M., and Bruce Feldthusen. Canadian Tort Law, 10th ed. Toronto: LexisNexis, 2015.
Wright, Richard W. “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts” (1988), 73 Iowa L. Rev. 1001.
APPEAL from a judgment of the Quebec Court of Appeal (Kasirer, Fournier and Bélanger JJ.A.), 2014 QCCA 2207, 16 C.C.L.T. (4th) 190, [2014] AZ‑51130892, [2014] J.Q. no 13772 (QL), 2014 CarswellQue 12131 (WL Can.), setting aside in part a decision of Marcotte J., 2011 QCCS 4755, [2011] AZ‑50785409, [2011] J.Q. no 12173 (QL), 2011 CarswellQue 10033 (WL Can.). Appeal allowed, Abella, Côté and Brown JJ. dissenting.
David E. Platts and Élisabeth Brousseau, for the appellants.
Gordon Kugler and Stuart Kugler, for the respondent.
The judgment of McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ. was delivered by
Wagner J. —
I. Introduction
[1] In some professional liability cases, the defendant’s negligence may undermine the plaintiff’s ability to prove causation. The plaintiff may nonetheless lead some affirmative evidence of causation. In these circumstances, is the trier of fact required to draw an adverse inference of causation against the defendant? That is the legal issue at the heart of this appeal.
[2] Marc Émond died tragically of lung cancer at the age of 47, leaving behind his partner, Cathie St-Germain, and their young son. Ms. St-Germain brought an action for damages against the appellants, two of Mr. Émond’s physicians.
[3] The trial judge concluded that, while the appellant physicians were negligent, the evidence did not establish on a balance of probabilities that their negligence caused Mr. Émond’s death. The Quebec Court of Appeal reversed that decision. The majority held that the trial judge erred in law by failing to draw an adverse inference of causation. The concurring judge concluded that the trial judge should have found that causation had been established.
[4] The Civil Code of Québec and the Code of Civil Procedure, CQLR, c. C-25.01, provide a comprehensive set of evidentiary rules. The rules on presumptions set out in arts. 2846 to 2849 of the Civil Code govern the inferences drawn by triers of fact. In my opinion, no rule of law requires the trier of fact to draw an adverse inference of causation where the defendant’s negligence has undermined the plaintiff’s ability to prove causation, even where there is some evidence of causation.
[5] In this case, the trial judge committed no error of law in her causation analysis, nor did she commit a palpable and overriding error of fact. I would, therefore, allow the appeal.
II. Facts
[6] In November 2005, Mr. Émond appeared to be in excellent health. He was then a 44-year-old non-smoker who exercised regularly and took care of himself. He also had annual physicals at the Clinique Physimed, where he was under the care of the appellant Dr. Albert Benhaim, a general practitioner.
[7] Mr. Émond attended his annual physical on November 9, 2005. Dr. Benhaim suggested that Mr. Émond undergo a chest X-ray, even though he did not have symptoms of a chest problem.
[8] The appellant Dr. Michael O’Donovan, a radiologist, reviewed Mr. Émond’s chest X-ray. According to Dr. O’Donovan’s report, there was “a 1.5 to 2 cm ill-defined opacity” in Mr. Émond’s right lung, “the etiology of which is uncertain”. There were no other associated abnormalities on the X-ray. Dr. O’Donovan suggested that, for purposes of comparison, Dr. Benhaim consult Mr. Émond’s previous chest X-rays if they were available. Otherwise, Dr. O’Donovan suggested a follow-up X-ray and “probably a CT scan”.
[9] Contrary to Dr. O’Donovan’s suggestion, Dr. Benhaim did not attempt to find Mr. Émond’s previous chest X-rays. Nor did he consult Mr. Émond’s medical file, which contained reports on chest X-rays taken in 1994, 1998 and 1999. However, Dr. Benhaim had a follow-up chest X-ray performed on January 17, 2006.
[10] Dr. O’Donovan reviewed the follow-up X-ray, and noted no change in the opacity in Mr. Émond’s right lung. He suspected that the opacity was a chronic lesion and suggested that Mr. Émond undergo a third X-ray in four months’ time. That X-ray was never taken.
[11] Mr. Émond had his next annual physical on December 4, 2006, and an X-ray of his chest was taken. Dr. O’Donovan observed that the lesion in Mr. Émond’s lung had increased in size to approximately 2.5 cm. Dr. O’Donovan suspected that the lesion might be cancerous, and he suggested further tests.
[12] Mr. Émond underwent a CT scan on December 19, 2006 and a PET scan in January 2007. Those tests confirmed that he had stage IV lung cancer. He was diagnosed in January 2007. The cancer was incurable. At that time, however, Mr. Émond still displayed no symptoms of his disease.
[13] Beginning in February 2007, Mr. Émond received palliative chemotherapy with the hope of slowing the cancer’s spread. The chemotherapy treatments were suspended between June and November 2007, as Mr. Émond was feeling well. He exercised regularly and biked over 5,000 km that summer. Mr. Émond began to experience symptoms of his disease in the fall of 2007. The chemotherapy treatments resumed in November 2007, but were stopped again in February 2008 because they were unsuccessful.
[14] Mr. Émond died on June 6, 2008. He was survived by his partner, Ms. St-Germain, and their eight-year-old son. Ms. St-Germain brought the present action against Drs. Benhaim and O’Donovan in her own name, in her capacity as tutor to her son, and as Mr. Émond’s universal legatee.
[15] At trial, the plaintiff argued that, in November 2005 or at least in January 2006, Drs. Benhaim and O’Donovan should have informed Mr. Émond that the opacity on the X-ray of his right lung could be cancerous, and should have conducted further tests to determine whether that was the case. The plaintiff’s expert witnesses testified that, in November 2005, the cancer was at stage I or IIA. Had Mr. Émond been promptly diagnosed and treated at that time, he would likely have been cured. However, due to the defendants’ errors, Mr. Émond was not diagnosed until January 2007, when the cancer was at stage IV and incurable. Therefore, the plaintiff argued, the negligent delay in diagnosing Mr. Émond’s cancer caused his death.
[16] The defendants’ expert, Dr. Ferraro, testified that Mr. Émond’s cancer was already at stage III or IV in November 2005, and his chances of survival at that time were low. Therefore, the cancer would likely have taken Mr. Émond’s life even if he had been promptly diagnosed. The delay in diagnosing Mr. Émond was not the cause of his death.
III. Judgments Below
A. Quebec Superior Court (Marcotte J., 2011 QCCS 4755)
[17] After thoroughly reviewing the evidence in her well-crafted reasons, the trial judge, Marcotte J. (as she then was), allowed the action in part.
[18] She found that Drs. Benhaim and O’Donovan were both negligent in failing to more thoroughly investigate the opacity on Mr. Émond’s chest X-rays of November 2005 and January 2006. Because of the negligence, Mr. Émond’s cancer diagnosis was delayed to January 2007. The trial judge’s findings of negligence are not contested in this appeal.
[19] However, the trial judge concluded that the evidence did not establish on a balance of probabilities that the negligence of Drs. Benhaim and O’Donovan caused Mr. Émond’s death. She was not convinced that, but for the delay in diagnosing Mr. Émond’s cancer, he would likely have survived. She found that, by November 2005 and January 2006, Mr. Émond’s cancer was likely already at stage III, and was likely incurable.
[20] The trial judge stated that [translation] “[m]oreover, no presumption of causation can be drawn on the basis that the defendants’ fault made it impossible for the plaintiff to prove causation” (para. 92 (CanLII)). Instead, she recognized that the court may draw [translation] “an adverse inference” against the defendant in such circumstances (para. 100).
[21] The trial judge rejected the plaintiff’s expert evidence that the cancer was at stage I in November 2005. This evidence was based on three factors: the lesion in Mr. Émond’s lung was less than 3 cm in size, Mr. Émond was asymptomatic, and he was in a good state of health. The trial judge found that these three factors were also present in December 2006 and January 2007, when Mr. Émond was diagnosed with stage IV cancer. They were unreliable indicators of the cancer’s progression.
[22] The trial judge accepted the opinion of the defendants’ expert, Dr. Ferraro, who testified that the cancer was at least at stage III in November 2005. Dr. Ferraro’s opinion was based on three considerations. First, Mr. Émond’s lung cancer could not have progressed from stage I to stage IV in approximately 12 months (November 2005 to December 2006) because lung cancer evolves slowly. Second, when the November 2005 X-ray was viewed with the benefit of hindsight — that is, with knowledge of the results of the tests performed in December 2006 and January 2007 — it was apparent that there were shadows on the November 2005 X-ray that were consistent with stage III or IV cancer. Third, the majority of patients diagnosed with cancer are at an advanced stage.
[23] The trial judge considered the evidence that patients with untreated stage III or IV lung cancer typically live for one year or less. One of the plaintiff’s experts testified that if Mr. Émond had stage III or IV cancer in November 2005, he would not have been alive for his next annual physical in December 2006. However, the trial judge emphasized Dr. Ferraro’s evidence that Mr. Émond’s case defied statistics.
[24] Accordingly, the trial judge concluded that the faults of Drs. Benhaim and O’Donovan did not cause Mr. Émond’s death. However, she awarded $70,000 in damages to Ms. St-Germain personally and in her capacity as universal legatee for the anguish caused by the defendants’ negligent handling of Mr. Émond’s treatment.
B. Quebec Court of Appeal (Kasirer, Fournier and Bélanger JJ.A., 2014 QCCA 2207, 16 C.C.L.T. (4th) 190)
[25] The Court of Appeal allowed the appeal and concluded that the faults of Drs. Benhaim and O’Donovan caused Mr. Émond’s death.
(1) Majority Reasons (Kasirer and Bélanger JJ.A.)
[26] The majority of the Court of Appeal, Kasirer and Bélanger JJ.A., concluded in a well-crafted decision that the trial judge erred in law in her causation analysis. Her error of law was her failure to draw an unfavourable or adverse inference of causation that, according to Kasirer and Bélanger JJ.A., was required by this Court’s decisions in Snell v. Farrell, [1990] 2 S.C.R. 311, and St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491.
[27] In the view of Kasirer and Bélanger JJ.A., an adverse inference of causation arises when two criteria are established. First, the defendant physician’s negligence must have undermined the plaintiff’s ability to prove causation.[1] Second, the plaintiff must adduce at least “some” or “very little affirmative evidence” of causation. These two criteria form the basis for an adverse inference against the defendant that discharges, prima facie, the plaintiff’s burden of proving causation. It is then open to the defendant to rebut the inference of causation by leading evidence to the contrary. The majority stressed that drawing an adverse inference of causation is not the same as shifting the onus of disproving causation to the defendant. The plaintiff retains the “ultimate burden of showing causation on the balance of probabilities” (C.A. reasons, at para. 168).
[28] In this case, the majority of the Court of Appeal concluded that the criteria for drawing an adverse inference of causation were established.
[29] First, the defendants’ negligence undermined the plaintiff’s ability to prove causation. The defendants’ negligence consisted of their failure to investigate the opacity on Mr. Émond’s chest X-rays. Had they investigated and conducted the appropriate tests, they would have determined the stage of Mr. Émond’s cancer in November 2005, which would in turn have determined whether his cancer could likely have been cured with prompt treatment. Therefore, because of the defendants’ negligence, “it was impossible for the [plaintiff] to show scientifically, by direct evidence of staging of cancer, that the fault resulted in a delay in the treatment of the disease that ultimately caused Mr. Émond’s death” (C.A. reasons, at para. 142).
[30] Second, the plaintiff led some affirmative evidence that the cancer was at an early stage in November 2005, and thus could likely have been cured with prompt diagnosis and treatment. This evidence consisted of a statistic that 78 percent of cancers discovered fortuitously — as Mr. Émond’s cancer was — are at stage I. Stage I cancer has a cure rate of 70 percent.
[31] According to Kasirer and Bélanger JJ.A., these two factors gave rise to an adverse inference against the defendants that their negligence caused Mr. Émond’s death. It was open to the defendants to lead evidence to rebut the adverse inference — evidence establishing that Mr. Émond was among the 22 percent of persons whose fortuitously discovered cancer is at a late, incurable stage — but they failed to do so. In particular, the majority of the Court of Appeal found Dr. Ferraro’s evidence about the slow progression of lung cancer, and his retrospective reading of the November 2005 X-ray, to be speculative and unreliable.
[32] The majority of the Court of Appeal concluded that the trial judge erred in law by failing to apply an adverse inference of causation. Had she done so, she would have found that causation had been established on a balance of probabilities.
(2) Concurring Reasons (Fournier J.A.)
[33] Fournier J.A. wrote concurring reasons. He found that the trial judge committed a palpable and overriding error when she concluded that causation was not established. He relied principally on the evidence that untreated stage III or IV cancer is generally fatal within 12 months. Mr. Émond received no treatment between November 2005 and January 2007. Therefore, if he had stage III or IV cancer in November 2005, he would likely have died by January 2007. In fact, Mr. Émond survived to June 2008. As a result, in November 2005, Mr. Émond must have had stage I or II cancer, which would likely have been curable with prompt treatment.
[34] Fournier J.A. acknowledged Dr. Ferraro’s testimony that, when the November 2005 X-ray was viewed with the benefit of hindsight, there were shadows that were consistent with stage III or IV cancer. However, neither the plaintiff’s experts nor Dr. O’Donovan could see these shadows. In the view of Fournier J.A., the shadows alone were not enough to undermine the plaintiff’s theory of causation, as X-rays are of limited use in diagnosing the staging of cancer.
[35] Accordingly, Fournier J.A. found that the plaintiff had proved on a balance of probabilities that the defendants’ fault caused Mr. Émond’s death.
IV. Analysis
A. Standard of Review
[36] The standard of review is correctness for questions of law, and palpable and overriding error for findings of fact and inferences of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 19; St-Jean, at paras. 33-36. Causation is a question of fact, and so the trial judge’s finding on causation is owed deference on appeal: St-Jean, at paras. 104-5; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8; Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 29.
[37] It may be useful to recall the many reasons why appellate courts defer to trial courts’ findings of fact, which were described at length in Housen, at paras. 15-18. Deference to factual findings limits the number, length and cost of appeals, which in turn promotes the autonomy and integrity of trial proceedings. Moreover, the law presumes that trial judges and appellate judges are equally capable of justly resolving disputes. Allowing appellate courts free rein to overturn trial courts’ factual findings would duplicate judicial proceedings at great expense, without any concomitant guarantee of more just results. Finally, according deference to a trial judge’s findings of fact reinforces the notion that they are in the best position to make those findings. Trial judges are immersed in the evidence, they hear viva voce testimony, and they are familiar with the case as a whole. Their expertise in weighing large quantities of evidence and making factual findings ought to be respected. These considerations are particularly important in the present case because it involves a large quantity of complex evidence.
[38] It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46:
Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
[39] Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 (CanLII), [translation] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions.”
[40] However, the majority of the Court of Appeal did not review the trial judge’s finding on causation for palpable and overriding error. After acknowledging that causation is a question of fact, the majority stated that the trial judge’s failure to apply an adverse inference of causation constituted an error of law. I now turn to that alleged error of law.
B. Did the Trial Judge Err in Law by Failing to Draw an Adverse Inference of Causation?
[41] The majority of the Court of Appeal found that the trial judge erred in law by failing to draw an adverse inference of causation against the defendants in accordance with this Court’s decisions in Snell and St-Jean. According to the majority, these decisions require a trier of fact to draw an adverse inference of causation against a defendant physician where the defendant’s negligence has undermined the plaintiff’s ability to prove causation and where the plaintiff adduces at least “some” or “very little affirmative evidence” of causation. This adverse inference serves, prima facie, to discharge the plaintiff’s burden of proving causation. The defendant may resist the inference by leading evidence to the contrary.
[42] This was an error. This Court held in Snell that, in such circumstances, an adverse inference of causation may discharge the plaintiff’s burden of proving causation. Those circumstances do not trigger such an inference. Whether an inference of causation is warranted, and how it is to be weighed against the evidence, are matters for the trier of fact. Here, the trial judge’s reasons show that she did not draw that inference, although she was aware that it was available (para. 100). That conclusion is a question of fact and deserves deference from a court of appeal.
[43] The majority of the Court of Appeal appropriately used permissive language to explain this Court’s decision in Snell. By reversing the trial judge’s decision on the basis of an error of law, however, the majority treated the inference described in Snell and St-Jean as compulsory once certain criteria were established.
[44] The majority of the Court of Appeal evaluated the evidence in a manner that illustrates this error. It approached the evidence from the perspective that, since the defendants had negligently created the uncertainty, it was for them to rebut the single piece of statistical evidence relating to the fortuitous discovery of cancer. Since it found that the defendants’ evidence was speculative as a consequence of that very uncertainty, the majority of the Court of Appeal held that the adverse inference had to result in a finding of causation. The majority of the Court of Appeal did not consider the weaknesses in the plaintiff’s expert evidence, as the trial judge had, because it rested the adverse inference on the statistical evidence. With respect for the contrary view, Snell and St-Jean do not support this approach. Rather, the decision to draw an adverse inference must be based on an evaluation of all of the evidence. To do otherwise has the same effect as impermissibly reversing the burden of proof. I return to this issue below.
[45] As I will now explain, Snell and St-Jean held that the ordinary rules of causation must be applied in medical malpractice cases. As prime examples of how the ordinary rules of causation operate in medical liability cases, these decisions are equally relevant in Quebec.
[46] I will begin by discussing Snell, in which Sopinka J. examined developments in English tort law that purported to reverse the onus of proving causation in some circumstances.[2] Traditionally, the plaintiff in a common law negligence claim had to prove on a balance of probabilities that, but for the defendant’s negligent conduct, the plaintiff would not have been injured. Sopinka J. stated that his task was “to determine whether a departure from well-established principles is necessary for the resolution of this appeal” (p. 320). Sopinka J. concluded that such a departure was not warranted, provided that the traditional principles are not applied in an overly rigid manner (p. 328).
[47] First, Sopinka J. held that it is not necessary that the plaintiff adduce expert scientific or medical evidence definitively supporting the plaintiff’s theory of causation, as “[c]ausation need not be determined by scientific precision” (p. 328; see also pp. 330-31). This is because the law requires proof of causation only on a balance of probabilities, whereas scientific or medical experts often require a higher degree of certainty before drawing conclusions on causation (p. 330). Simply put, scientific causation and factual causation for legal purposes are two different things. Factual causation for legal purposes is a matter for the trier of fact, not for the expert witnesses, to decide: Laferrière v. Lawson, [1991] 1 S.C.R. 541, at pp. 607-8; see also Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107 (1959), at pp. 109-10.
[48] Second, in medical malpractice cases, the defendant is often in a better position than the plaintiff to determine the cause of the injury (p. 322). Sopinka J. held that, in such circumstances, the trier of fact may take into account the relative ability of each party to present evidence on a fact in issue:
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 some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. [p. 330]
This precept, stated by Lord Mansfield in Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970, is that evidence should be “weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (quoted in Snell, at p. 328).
[49] An inference of causation is available to trial judges by virtue of the ordinary operation of these principles in the medical malpractice context:
In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.
(Snell, at pp. 328-29)
[50] The majority of the Court of Appeal relied in large part on this passage to justify its conclusion that Snell created a rule of law that requires an adverse inference of causation in certain circumstances. The inference of causation Sopinka J. described in Snell is one that trial judges are permitted to draw even in the absence of positive or scientific proof. It is not one that they are required to draw once certain criteria are established. The decision on whether to draw such an inference is left to the discretion of the trial judge. Despite using permissive language to describe the adverse inference in Snell, the decision of the majority of the Court of Appeal failed to give effect to the permissive, discretionary nature of that inference.
[51] By overturning the trial judge’s decision on the basis of an error of law, the majority of the Court of Appeal implicitly transformed the permissive inference described by this Court in Snell into one that is compulsory once certain facts are established. The majority’s decision would have the effect of creating a novel legal rule governing presumptions. And yet it is apparent that Sopinka J. was not purporting to create such a rule in Snell. Rather, he was simply describing how the usual fact-finding process works in the medical malpractice context:
It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. . . . In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted. [Emphasis added; pp. 329-30.]
[52] The adverse inference of causation described in Snell is permissive precisely because it is a component of the fact-finding process. For the same reason, the question of whether an inference is warranted in a particular case falls within the discretion of the trier of fact, to be determined with reference to all of the evidence. This principle was recently reaffirmed by this Court in Ediger, at para. 36. It was therefore not open to the majority to substitute its own decision to draw an unfavourable inference. Rather, the majority of the Court of Appeal would have been bound to find a palpable and overriding error in the trial judge’s decision not to draw an adverse inference. I return to this point below.
[53] Snell itself provides an example of the circumstances in which an inference of causation may be drawn. The plaintiff sued the defendant ophthalmologist after she became blind in her right eye following cataract surgery. Before the surgery, the defendant noticed some bleeding when he injected anaesthetic, yet he negligently continued the surgery. The blindness could have been caused by the bleeding or by natural causes. The expert witnesses could not definitively determine the cause. In concluding that the plaintiff had established that the defendant’s negligence caused her blindness, Sopinka J. stated:
The [defendant] was present during the operation and was in a better position to observe what occurred. Furthermore, he was able to interpret from a medical standpoint what he saw. In addition, by continuing the operation which has been found to constitute negligence, he made it impossible for the [plaintiff] or anyone else to detect the bleeding which is alleged to have caused the injury. In these circumstances, it was open to the trial judge to draw the inference that the injury was caused by the retrobulbar bleeding. There was no evidence to rebut this inference. . . .
. . . it is not essential to have a positive medical opinion to support a finding of causation. Furthermore, it is not speculation but the application of common sense to draw such an inference where, as here, the circumstances, other than a positive medical opinion, permit. [pp. 335-36]
[54] In sum, the Court held in Snell that “the plaintiff in medical malpractice cases