Top 5 Civil Appeals From The Court Of Appeal (July 2015)

1. Shantry v. Warbeck, 2015 ONCA 395 (Cronk, Pepall and Benotto JJ.A.), June 4, 2015

2. Unifund Assurance Company v. D.E., 2015 ONCA 423 (MacPherson, Cronk and Gillese JJ.A.), June 11, 2015

3. Roberts v. Roberts, 2015 ONCA 450 (Feldman, Hourigan and Benotto JJ.A.), June 19, 2015

4. Ziebenhaus v. Bahlieda, 2015 ONCA 471 (MacFarland, Rouleau and Lauwers JJ.A.), June 24, 2015

5. Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465 (Hoy A.C.J.O., Cronk and Watt JJ.A.), June 24, 2015

   1. Shantry v. Warbeck, 2015 ONCA 395 (Cronk, Pepall and Benotto JJ.A.), June 4, 2015

   Twenty-two year old Shane Miller was admitted to the Thunder Bay Regional Health Sciences Centre with severe back pain on the evening of July 14, 2007. When intravenous morphine administered throughout the night and the next day failed to provide Miller any relief, the respondent physician prescribed Dilaudid, a stronger opioid. His pain finally subsided early the following morning. Shortly thereafter, hospital staff found Miller not breathing. They were unable to resuscitate him.

   Shane Miller was pronounced dead on the morning of July 16, less than 35 hours after he arrived at the hospital. The investigating coroner cited "mixed drug overdose" as the cause of death.

   Miller's family brought an action in negligence, alleging that the respondent physician failed to meet the standard of care by prescribing an excessive dose of Dilaudid and that this caused Miller's death.

   Competing expert witnesses disagreed as to whether Miller was "opioid naïve" or "opioid tolerant". The appellants led expert evidence that he was opioid naïve and that the dosage of Dilaudid was therefore too high. In contrast, the respondent's experts testified that although Miller did not meet the strict definition of "opioid tolerant" in that it was unlikely that he could have become tolerant in such a short time, he nonetheless exhibited resistance to morphine such that the dosage of Dilaudid ordered by the respondent was appropriate. The experts also disagreed as to the cause of death: while the appellants' experts agreed with the coroner's conclusion, the respondent's experts testified that if Miller's death was indeed due to an overdose of opioids, he would have exhibited symptoms of overdose when he was last observed alive by hospital staff.

   The trial judge accepted the evidence of the respondent's experts on both issues. He concluded that the dosage of Dilaudid was appropriate in the circumstances and that the respondent's conduct did not fall below the standard of care. He also rejected the coroner's finding as to the cause of death.

   Miller's family appealed, submitting that the trial judge's approach to liability was flawed because he addressed the question of standard of care before causation. They argued that he further erred in law and in fact when he rejected their evidence as to the cause of death. The appellants also claimed that the trial judge's error with respect to causation led him to further err in determining the standard of care with respect to the appropriate dosage of Dilaudid.

   Writing for the Court of Appeal, Benotto J.A. held that the trial judge did not err in addressing standard of care prior to causation. In so doing, Benotto J.A. noted that the Supreme Court has outlined the requirements that must be met to establish negligence. Specifically, the plaintiff must demonstrate - separately and sequentially - that the defendant owed a duty of care, that the defendant's conduct breached the standard of care, that the plaintiff sustained damage and that the damage was caused, in fact and in law, by the defendant's breach. Benotto J.A. observed that the trial judge's reasons addressed each of these requirements in their proper sequence.

   With respect to the standard of care, Benotto J.A. rejected the appellants' submission that the trial judge erroneously conflated opioid tolerance with analgesic affect, observing that the trial judge did not refer to opioid tolerance in its "strict definition'. The trial judge recognized that a person cannot become opioid tolerant in the amount of time that Miller had received morphine, but accepted the evidence of the respondent's experts that prior doses of morphine should inform the starting dosage of Dilaudid. As a result, and based on Miller's lack of response to morphine, the respondent's prescription of a starting dose of 5 mg of Dilaudid met the standard of care of a prudent and diligent hospitalist. In fact, all of the medical witnesses agreed that the proper opioid dose is one which relieves pain. Benotto J.A. held that there was no error in the trial judge's conclusion that the respondent physician had met the standard of care and that the dosage of Dilaudid prescribed was appropriate.

   The appellants further submitted that the trial judge erred in fact and in law when he rejected the coroner's determination as to the cause of Miller's death. Citing the decision of the Supreme Court in Ediger v. Johnston, 2013 SCC 18, they argued that because they tendered extensive evidence to support their theory and the respondent did not lead sufficient evidence to support an alternative, the trial judge was required to accept the appellants' theory of causation.

   Benotto J.A. rejected this claim, noting that in Ediger, the Supreme Court held that the drawing of inferences against a defendant is permissive, not mandatory. The evidence in this case provided an adequate basis for the trial judge to conclude that the appellants had failed to prove causation on a balance of probabilities. The trial judge was entitled to prefer the evidence of the respondent's experts on causation and reject the appellants' theory.

   Benotto J.A. also dismissed the appellants' submission that the trial judge made two factual errors which undermined his...