In the recent case of Farej v Fellows,2022 ONCA 254, the Ontario Court of Appeal reiterated the relevant principles for appeal of a trial decision on the basis of inadequate reasons. In finding that the trial judge’s reasons were inadequate with respect to both causation and one of the alleged breaches of the standard of care, the Court of Appeal highlighted the importance of a fulsome analysis of causation, particularly in instances with a potential mix of tortious and non-tortious causes for the claimed injuries. In this case, the trial judge failed to make the factual findings necessary to permit meaningful review as to whether the defendant’s actions materially contributed to the infant plaintiff’s injury.
Overview of the Facts
Sabrin Farej was born profoundly disabled after suffering acute near total oxygen deprivation for about 25 to 30 minutes prior to her birth. The Defendant, Dr. Fellows, was the obstetrician caring for Sabrin and her mother, Ms. Idris. The issues at trial centered around the 26 minutes from Dr. Fellow’s arrival in the delivery room at 11:01p.m. to Sabrin’s birth at 11:27 p.m.
When Dr. Fellows arrived in the delivery room, he was immediately aware that Sabrin was not getting enough oxygen, and elected to attempt forceps assisted vaginal delivery. The plaintiffs alleged that Dr. Fellows breached the standard of care in proceeding with forceps assisted delivery and ought to have proceeded by way of emergency c-section immediately, or after the first unsuccessful attempt to deliver Sabrin with the use of forceps. The plaintiffs also argued that Dr. Fellows was negligent in his failure to deliver Sabrin with the use of forceps on his second attempt, which they say would have resulted in Sabrin’s birth 15 minutes sooner.
The trial judge dismissed the action, finding that the plaintiffs failed to establish a breach of the standard of care, and that there was no causal link between Dr. Fellow’s actions and Sabrin’s injuries. She also rejected the plaintiffs’ argument that Dr. Fellows failed to obtain informed consent for forceps assisted vaginal delivery.
The plaintiffs appealed, submitting that the trial judge’s reasons were inadequate in that they did not permit meaningful appellate review on the most crucial issues of the case.
The Test for Appellate Review of the Adequacy of Reasons
Trial reasons must adequately address the issues, explaining the factual and/or legal basis for the for the trial judge’s findings. Otherwise, the unsuccessful party is effectively denied their right of appeal, which constitutes an error in law.
The law requires that the adequacy of reasons be determined functionally and contextually. The functional component requires the Court to ask whether the reasons as a whole permit meaningful appellate review, despite any identified shortcomings?
In his decision, Justice Doherty (writing for the Court) cited the recent decision of the Supreme Court of Canada in R v G.F.,2021 SCC 20, in which the SCC cautioned appellate courts from reviewing trial decisions with an overly critical eye, stating at paragraph 79:
An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous – the appeal court must determine the extent and significance of the ambiguity.
Accordingly, the mere possibility of error or minor ambiguity is not enough. If the ambiguity can be resolved upon review of the record as a whole, the reasons are not inadequate.
Adequacy of the Trial Judge’s Reasons in this Case
As this was an action in medical negligence, the issues at trial were: 1. Did the Defendant Dr. Fellows breach the standard of care, and 2. If Dr. Fellows did breach the standard of care, did that breach cause or materially contribute to Sabrin’s injuries. The plaintiffs also raised the issue of informed consent; however, this was rejected by the trial judge for reasons which the Court of Appeal found to be adequate.
Taking a functional approach, in order to succeed in this case, the appellants must show the trial judge’s reasons are inadequate with respect to causation and at least one of the alleged breaches of the standard of care.
Reasons on Causation
The experts for both parties agreed that Sabrin’s near total asphyxia began between 10:55 and 11:04p.m., although no one could determine with certainty when it began. It was also agreed that generally speaking, the longer and more severe the oxygen deprivation (the near total asphyxia), the more severe the brain injury is likely to be.
The question with respect to causation was whether Dr. Fellow’s decision to proceed with forceps delivery as opposed to an emergency c-section either caused or materially contributed to Sabrin’s brain injury.
While the plaintiffs agreed that Dr. Fellows did not cause the uterine rupture (i.e. it was a non-tortious cause of Sabrin’s injuries), they argued that her delayed delivery caused and/or materially contributed to Sabrin’s brain injury. Accordingly, the Court of Appeal found that the trial judge had to make the following factual findings in determining causation:
At trial, the plaintiffs argued that an emergency c-section could have been performed within 8-10 minutes. The defendant argued that there was no evidence to support that an emergency c-section could be performed within 8-10 minutes, as this estimate did not include preparation time.
The trial judge accepted the defendant’s submission in this respect, stating that there was no evidence that a c-section could have been completed within 8-10 minutes. However, she made no findings as to how long an emergency c-section would have taken. Without this information, it is not possible to ascertain the length of the delay (if any) caused by Dr. Fellow’s decision to proceed with vaginal delivery as opposed to an emergency c-section. Accordingly, there can be no meaningful review as to whether the delay caused or materially contributed to Sabrin’s injuries.
Reasons on Standard of Care
The Court of Appeal assessed the adequacy of the trial judge’s reasons with respect to each of the following questions:
With respect to the first two questions, while the Court of Appeal acknowledged that the trial judge misstated the relevant question at times, and could have better formatted her reasons for enhanced clarity, they were not inadequate. However, with respect to question three, the Court of Appeal found that the trial judge’s reasons were inadequate as they failed to permit meaningful appellate review.
The evidence at trial was that Dr. Fellows first attempted to deliver Sabrin using Tucker-McLean forceps which required him to release the forceps after bringing the baby down the birth canal, and then reapply them. Unfortunately, when he released them, Sabrin retreated back up the birth canal.
Accordingly, Dr. Fellows decided to use Kielland forceps on his second attempt, as he would not need to release the forceps. However, in the process of the second attempt, Dr. Fellows became concerned he would damage Ms. Idris’ perineum and decided to release the forceps as he had done on the first attempt. The plaintiffs argued that if he had maintained traction Sabrin could have been delivered on the second attempt, 15 minutes earlier than her ultimate delivery time.
While the trial judge acknowledged the appellant’s argument with respect to use of the Kielland forceps, she did not address it on the merits, or make any finding as to whether it was a breach of the standard of care. Accordingly, the reasons with respect to the allegation that Dr. Fellows should have delivered Sabrin with the Kielland forceps are inadequate and do not allow meaningful appellate review.
As the trial judge’s reasons were inadequate with respect to both causation and one of the alleged breaches of the standard of care, the appeal was allowed and a new trial was ordered.
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