Barrister and Solicitor
Legal Writing and Research
Evidence - Failure to Adduce - Adverse Inference
Torts - Negligence - Elements
Shantry v Warbeck (Ont CA, 2015)
In this case the Court of Appeal considered the elements of the test for negligence, and in particular whether the determination of breach of standard of care (ie. whether the defendant caused the harm) precedes or follows the determination of cause-in-fact:
 I begin by addressing the appellants’ submission that the trial judge erred by deciding the standard of care before causation. It is submitted that a finding that the cause of death was mixed drug toxicity – as determined by the coroner - would have impacted the trial judge’s finding on standard of care. The trial judge, they argue, treated causation as a “throw away” and then made mistakes that infected his determination of negligence.The court also commented as follows on when a trial court may draw adverse inferences against a party who fails to introduce evidence, or fails to introduce adequate evidence, on a material fact issue:
 The appellants rely on Meringolo v. Oshawa General Hospital (1991), 46 O.A.C. 260 (C.A.), leave to appeal refused, 50 O.A.C. 159 (S.C.C.), to support the position that causation must be determined before duty of care. In that decision, Osborne J.A. wrote, at para. 56:
The [cause of the brain damage] is, in my view, preliminary to the traditional negligence causation question, that is, whether it has been established that a tortfeasor’s conduct (breach of duty) caused a plaintiff’s injury. In this case, before the breach of duty issue can be appropriately addressed, what happened in the operating room ... must be determined in order to provide an answer to the question, what caused the appellant’s brain damage, or, to put it more broadly, how did the appellant sustain brain damage. It is only after that issue is examined that the issue of the respondents’ alleged negligence should be considered. [Emphasis added.] In a later case, Grass v. Women's College Hospital (2001), 2001 CanLII 8526 (ON CA), 144 O.A.C. 298 (C.A.), leave to appeal refused,  S.C.C.A. No. 372, this court applied Meringolo, with Catzman J.A. writing, at para. 12:
[T]he trial judge in the present case disposed of the action by finding that the appellants had failed to establish negligence on the part of Dr. Weisberg and thereby finding it unnecessary to assess the conflicting theories relating to causation. In doing so, he fell into the error articulated in Meringolo. The resolution of the question of causation might have led to different findings of fact with respect to what transpired in the labour room and to a different conclusion with respect to negligence. As in Meringolo, the appellants were entitled to the benefit of the trial judge's findings with respect to causation or to his determination, on the basis of a consideration of all of the evidence that such findings could not be made, before he came to address the issue of negligence. [Emphasis added.] In both Meringolo and Grass, the trial judge had not resolved the factual disputes surrounding causation, and this court held that findings of fact about causation, had they been made, could have influenced the determination of whether the standard of care had been breached.
 The concerns expressed in Meringolo and Grass are fact-specific and, in any event, are not at issue in this case. In each of those cases, the plaintiff’s theory of causation was a crucial component to a determination of the standard of care. In each of those cases, the trial judge, having first considered the standard of care, failed to address or make findings on causation. This is not such a case. The trial judge here considered causation and rejected the appellants’ theory in relation to it.
 That the trial judge addressed causation after the standard of care is not an error. The Supreme Court has established that there are requirements that must be met to establish negligence. The requirements are sequential and separate. The plaintiff must demonstrate that:
1. the defendant owed a duty of care;(See: Cleveland v. Whelan, 2011 ONCA 244 (CanLII), 277 O.A.C. 178, at paras. 32-33, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII),  2 S.C.R. 114, at para. 3).
2. the defendant’s behaviour breached the standard of care;
3. the plaintiff sustained damage; and
4. the damage was caused, in fact and in law, by the defendant’s breach.
 The trial judge’s analysis targeted each of these requirements in sequence. I therefore do not agree that he erred in his approach to the standard of care and causation issues. He considered the standard of care first, then causation. I will do the same.
 The appellants submit that, because they put forth 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. By rejecting their theory, the appellants argue, the trial judge erred in law. They rely on Ediger v. Johnston, 2013 SCC 18 (CanLII),  2 S.C.R. 98, to support the following submission in their factum:
If the experts for [the] plaintiff and the defendant have conflicting theories [of causation], the court must consider if the defendant has introduced sufficient evidence to displace the plaintiff’s theory of causation – not just another theory but evidence in support of that theory. I do not read Ediger to support the appellants’ submission. The Supreme Court of Canada’s decision in that case makes it clear that the drawing of inferences against a defendant is permissive, not mandatory. As Rothstein and Moldaver JJ. wrote for the court, at para. 36:
The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. [Emphasis added.] The burden nonetheless remains with the plaintiff, as stated at para. 39:
Faced with … conflicting expert testimony on the feasibility of [the plaintiff’s theory of causation] and evidence of other potential causes, it was incumbent upon [the trial judge] to weigh the evidence before her and determine whether [the plaintiff] had proven causation on a balance of the probabilities. [Emphasis added.]