



COURT OF APPEAL FOR ONTARIO

CITATION: Butler v. Royal Victoria Hospital, 2018 ONCA 409

DATE: 20180501

DOCKET: C63898

LaForme, Epstein and Pardu JJ.A.

BETWEEN

Sarah Butler, Luke Butler, James Butler and Isaac
    Butler, minors by their Litigation Guardian Jaye Butler and Robert Butler and
    the said Jaye Butler

Plaintiffs (Respondents)

and

Royal Victoria Hospital
,
P. Bates
, K. Rina, K. Corvari, W. Dekleyne, A.
    Fenton, A.M. Cichowicz, T. Haney,
J. Stuart
, E.
    Reyes, C. Stewart, S. Causey, T. Whitty, V. Ho and M. Hazlett

Defendants (
Appellants
)

Valerie Wise and Rozmin Mediratta, for the appellants

Gavin MacKenzie and Brooke MacKenzie, for the
    respondents

Heard: April 9, 2018

On appeal from the judgment of Justice John R. McCarthy of
    the Superior Court of Justice, dated May 5, 2017, and the costs decision, dated
    October 2, 2017.

REASONS FOR DECISION

BACKGROUND

[1]

In September 2008, Sarah Butler was diagnosed with hypotonic cerebral
    palsy. Sarahs condition was caused by hospital nurses negligent artificial
    rupture of her membranes at the birth of her and her twin brother on January
    26, 2007.

[2]

Sarahs impairments and deficits affect gross and fine motor skills,
    speech, cognition, learning and behaviour  they are serious and permanent. In
    order to cope with her disabilities and to enhance her quality of life, Sarah
    will require physiotherapy, speech-language therapy, occupational therapy and equipment
    and various other forms of assistance for the balance of her life.

[3]

Only at the beginning of the trial did the appellants admit they fell
    below the standard of care. That admission left the issues of causation and damages
    to be determined. In particular, the appellants submitted
Sarahs cognitive and behavioural issues were not
    entirely caused by the birth injury and that the claims under various heads of
    damages were excessive.


[4]

The parties agreed to file reports from their respective expert economists
    and argued the issue of damages for the loss of future income without calling
viva
    voce
evidence of these experts. Accordingly, neither expert testified nor
    was cross-examined, and the trial judge was tasked with assessing their
    evidence through their written reports.

[5]

After a five-and-a-half-week trial, in comprehensive reasons for
    judgment the trial judge
held that the birth
    injury was the sole cause of the numerous conditions that were negatively affecting
    Sarah. He
awarded the respondents $5,568,393 in damages, which included
$1,881,846 for future loss of income
.
[1]
The trial judge, in separate reasons for decision, fixed the respondents costs
    in the amount of $2,201,259 inclusive of fees, HST, and disbursements. The fee
    portion of the costs award totaled $1,503,466.

ANALYSIS

[6]

The trial judges findings involving causation and that Sarah will not
    be employable are not challenged by the appellants on appeal. What is
    challenged is his decision with respect to the award for future loss of income
    and the issue of costs.

[7]

Specifically, the appellants submit the trial judge erred in two
    respects when deciding the issue of Sarahs future income loss, namely: (i) his
    finding that Sarah would have completed college; and (ii) his approach to
    contingencies. The appellants submit the loss of future income portion of the
    award of
$1,881,846
should be reduced to
    $821,109. They also seek leave to appeal the fee portion, $1,503,466, of the
    trial judges award of costs.

[8]

As we will explain, we reject the appellants submissions that the trial
    judge erred. We see no reason to interfere with the exercise of his discretion
    in the assessment of damages or in his determination of costs.

[9]

First, the trial judges finding that there was a real and substantial
    possibility that Sarah would have graduated from college, but not university,
    and would have been employed full time if it were not for the birth injuries
    she sustained is entirely reasonable. In making this finding, the trial judge
    properly weighed the evidence and neither ignored relevant evidence nor failed
    to consider a relevant factor in a legal test. There was ample evidence before
    him to support his conclusion that Sarah probably would have completed college
    but for the appellants negligence. The appellants have failed to demonstrate
    any reason why this court should disturb his conclusion.

[10]

Second,
    the appellants submit that the expert statistics the trial judge relied on are
    based upon the wrong average earnings and do not include any negative
    contingencies. They rely on their experts criticism of the respondents expert
    evidence that they say was ignored or misapprehended by the trial judge. We
    disagree.

[11]

Although
    trial judges are entitled to adjust an award for future loss of income to
    account for general contingencieswhether upwards or downwardsit is not an
    error of law for the trial judge to decline to do so: see
Graham v. Rourke
,
75 O.R. (2d) 622 at p. 636;
Gerula v Flores
, [1995]
    O.J. No. 2300, at para. 41. In any case, we are not satisfied that the
    references the appellants referred us to, said to illustrate the trial judges
    error, are as clear and obvious as they contend. It is certainly arguable that
    an inference is available that both positive and general contingencies could be
    drawn from all the evidence: see
Beldycki Estate v. Jaipargas
, 2012
    ONCA 537, 295 O.A.C. 100;
Gerula
, at para. 41.

[12]

While
    the trial judge based his assessment on the plaintiffs experts starting point
    of female average full time earnings to age 65, it was open to him to conclude
    that temporary absences from the workforce would be offset by benefit programs
    such as employment or disability insurance.  He was not obliged to make a
    further deduction for non-participation in the workforce.  Calculation of the
    future loss of income of any child, let alone one born profoundly disabled is
    not an exact science.

[13]

Here the trial judge was required to determine the correct
    inferences to be drawn from the evidence of expert witnesses whose credibility
    was not in issue, and who, by party agreement, did not testify. These
    circumstances, however, do not change the need to show deference to the trial
    judges findings of fact.  As Sopinka and Gelowtiz put it in
The Conduct of
    An Appeal
, 3rd ed.

(Markham: LexisNexis Canada, 2012) at pp. 74-75:

This traditional principle of the English courts  that an
    appellate court is as well-placed to draw inferences from primary facts as the
    trial court.has been displaced by the view that an appellate court should not readily
    interfere with inferences drawn from established facts by trial courts. On
    several occasions, the Supreme Court of Canada has emphasized that restraint
    should be exercised when appellate courts contemplate interfering with the
    factual findings of a trial judge based solely on differing inferences or
    conclusions drawn from uncontradicted facts.

[14]

It
    is not the role of this court to substitute its award of damages for that of
    the trial judge unless there is an error of law or a wholly erroneous estimate
    of the damages: see
Gerula
. The appellants have not convinced us that
    this has occurred in this case.

COSTS

[15]

The
    appellants accept the trial judges methodology, however, they submit that he erred
    in principle or that the costs award was plainly wrong. We find no error in
    principle, nor can we conclude that the award is plainly wrong.

[16]

The
    parties addressed the issue of costs by way of written submissions in respect
    of a complex trial that lasted five weeks. The trial judge noted that this case
    involved more than eight years of litigation leading up to trial, which
    included days of examinations for discovery, multiple pre-trials, and countless
    exchanges of correspondence.

[17]

As we noted earlier, the appellants accept the trial
    judges methodology in deciding the costs issue. However, they
submit
    that he erred: (i) in applying a 27% factor for substantial indemnity costs;
    and (ii) in failing to consider that respondents trial counsel had devoted
    more time to the matter before the offer to settle than after. We disagree.

[18]

The
    trial judge was not required to adopt a weighted average of partial indemnity
    and substantial indemnity costs. It is worth repeating that a costs award does
    not have to be measured with exactitude; rather, it should reflect a fair and
    reasonable amount that should be paid by the unsuccessful parties:
Zesta
    Engineering Ltd v. Cloutier
(2002),
21 C.C.E.L. (3d) 161
,
    at para. 4.

[19]

Leave
    to appeal a costs order will not be granted except in obvious cases where the
    party seeking leave convinces the court there are strong grounds upon which
    the appellate court could find that the judge erred in exercising his
    discretion:
Brad-Jay Investments Limited v. Village Developments Limited
(2006),
218 OAC 315
, at para. 22. We are not persuaded that
    this is an appropriate case for granting leave

DISPOSITION

[20]

The
    appeal is dismissed and leave to appeal costs is denied. Costs of the appeal
    are awarded to the respondents in the amount of $37,500, inclusive of
    disbursements and HST.

H.S. LaForme J.A.

Gloria Epstein J.A.

G. Pardu J.A.





[1]
The award was revised from $5,236,693.29 to $5,568,393.00 in Supplementary
    Reasons for Judgment dated September 29, 2017.


