



COURT OF APPEAL FOR ONTARIO

CITATION: Uribe v. Tsandelis, 2021 ONCA 377

DATE: 20210603

DOCKET: C68163

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

Maria Angelica E. Uribe, Ricardo
    Adolfo Uribe, Elijah Richardo Uribe, a minor, by his litigation guardian, Maria
    Angelica E. Uribe

Plaintiffs (Respondents)

and

Grand River Hospital,
Dr. Nickoli Tsandelis,
S. Niyssonen, R. Brzorowski, M. Godwin,
    and Jane Doe

Defendant (Appellant)

Darryl Cruz and Christine Wadsworth,
    for the appellant

Daniel Fife and Maple Anne Cameron, for
    the respondent

Heard: April 23, 2021 by video conference

On appeal from the judgment of Justice James
    R.H. Turnbull of the Superior Court of Justice, dated December 6, 2019.

Benotto J.A.:

OVERVIEW

[1]

The appellant
Dr. Nickoli Tsandelis
is an obstetrician who treated Ms. Uribe during her pregnancy and
    delivered her baby. A jury concluded that his negligence caused brain damage to
    the baby.

[2]

Ms. Uribes pregnancy was uneventful until the babys heart rate decelerated
    52 minutes before delivery. The obstetrical nurse applied standard procedures
    and the heart rate stabilized. She telephoned the appellant who was in his
    office about five minutes away. He told her to let him know if the heart rate
    dropped again. He did not immediately return to the hospital.

[3]

About fifteen minutes later, the heart rate decelerated again and soon
    thereafter there were additional signs of fetal distress. The appellant was in
    his car on the way to the hospital when the nurse called him again advising him
    about the second deceleration.

[4]

The baby had to be delivered immediately through a cesarean section.
    However, the operating room had already been prepared for an elective
    operation. The other patient had to be moved, the room sterilized, and Ms.
    Uribe anaesthetized and prepared for surgery. By the time the baby was
    delivered, he had endured too long without oxygen and suffered serious brain
    damage.

[5]

Ms. Uribe, together with her husband and as litigation guardian for her
    child, brought an action against Dr. Tsandelis alleging that he was negligent
    by not returning to the hospital or preparing for a caesarean section
    immediately after the first phone call from the nurse.

[6]

A jury found that the appellant had breached the standard of care and
    that this caused the damage. The jury attributed 32% responsibility to the
    appellant and the rest to the hospital and other defendants. (The hospital and
    other defendants had previously settled pursuant to a Pierringer Agreement.)

[7]

Dr. Tsandelis appeals on the basis that the jury erred with respect to
    causation because they failed to apply the but for test and that there was no
    evidence that the baby would have been delivered in time to avoid the brain
    damage. He further submits that the trial judge unfairly intervened in the
    questioning of witnesses.

[8]

For the reasons that follow, I would dismiss the appeal.

FACTS

[9]

Maria Angelica Uribe was referred to Dr. Tsandelis by her family
    physician. Dr. Tsandelis, an experienced obstetrician and gynecologist, had an
    office five minutes away from the Grand River Hospital where he had privileges.

[10]

Ms.
    Uribes pregnancy was considered low risk. It proceeded uneventfully. She was
    admitted to the hospital on April 28, 2010 and given Cervidil to induce labour.
    She returned to the hospital early the following morning in labour. She was
    admitted to the hospital and assigned a room on the delivery floor. Saara
    Nyyssonen took over as her dedicated obstetrical nurse.

[11]

By
    9:00 a.m. labour had stopped progressing. The cervix was not dilating further.
    Dr. Tsandelis saw her and had no concerns but explained that a caesarian
    section would most likely be necessary. He returned to his office. There were
    two other obstetricians in the hospital that morning, including one who was
    on-call. By 9:30 a.m., labour had not progressed despite Ms. Uribe being given
    oxytocin to assist in cervical dilation.

[12]

At
    9:57 a.m. the babys heart rate decelerated. The nurse increased the
    inter-venous fluid, turned Ms. Uribe and watched the fetal heart rate. It
    stabilized at around 10:02 a.m. The nurse telephoned Dr. Tsandelis. He told her
    to call him if there was another deceleration. He remained at his office and
    saw one or two more patients.

[13]

Between
    10:17 a.m. and 10:18 a.m., the fetal heart rate again decelerated. At 10:20 am,
    the baby restabilized and the nurse examined Ms. Uribe vaginally and found no
    evidence of meconium, which would indicate fetal distress. At 10:25 a.m., there
    was a total occlusion of the umbilical cord, cutting off blood and oxygen
    supply to the baby. The nurse examined Ms. Uribe again and found meconium. At
    10:27 am, the nurse called Dr. Tsandelis, who was in his car and on the way to
    the hospital.

[14]

Meanwhile,
    another patient had been taken into the operating room at 10:20 a.m. for a
    pre-arranged elective caesarian section booked for 10:30 a.m. The one other
    operating room had not yet been cleaned from a prior procedure.

[15]

Ms.
    Uribe was in the operating room at 10:35 a.m. The appellant arrived at 10:40 a.m.
The other members of the birthing team were not ready to
    perform the surgery. The anesthetist only started anesthesia at 10:40 a.m. The
operation began at 10:48 a.m. One minute later, the baby was delivered. He
    suffers from severe cerebral palsy and other serious medical conditions.

THE SOGC GUIDELINES

[16]

The
    Society of Obstetricians and Gynecologists of Canada (SOGC)
[1]
provide guidelines which address
    the response when the fetal heart rate drops to the levels observed here. When
    a deceleration occurs of more than 3 and less than 10 minutes, the doctor must
    promptly prepare for delivery.

[17]

The
    respondents experts testified that the appellant should have returned to the hospital
    immediately upon receiving the first call from the nurse. The appellants
    experts testified that he did not breach the standard of care by remaining in
    his office.

[18]

It
    was generally agreed that brain injury would have occurred quickly after the
    10:25 occlusion. One expert said the window for delivery was 8 to 12 minutes;
    another said 8 to 15 minutes. Either way, the timing was critical. It was
    agreed by the experts that if the baby had been delivered within the window, or
    before the occlusion, the severe damage would not have occurred.

THE JURY VERDICT

[19]

The
    jurys task was to determine whether the appellant had breached the standard of
    care, and to determine causation. Because the other defendants had settled, the
    jury was to then assess whether the hospital and/or nurses breached the
    standard of care and, if so, whether causation with respect to them had been
    proved. Finally, the jury was to apportion liability as between Dr. Tsandelis
    and the hospital/nurses.

[20]

The
    jury considered first the questions related to Dr. Tsandelis, then the hospital
    and/or nurses and finally the apportionment of damages.

[21]

With
    respect to Dr. Tsandelis, the jury was asked the following questions and gave
    the following answers.

Standard of Care

1.   (a) Have the plaintiffs proven on a balance of
    probabilities that Dr. Tsandelis breached the standard of care of a reasonable
    prudent obstetrician on Ontario?

Yes

(b)  If your answer to question 1(a) is yes, how did Dr.
    Tsandelis breach the standard of care? Please provide clear and specific
    answers:

At the time of the first phone call from
    Nurse Nyyssanen the Guidelines of SOGC were not followed by Dr. Tsandelis to
    prepare for delivery. The SOCG Guidelines state that when there is a single
    abnormal intrapartum electronic fetal monitor tracing of (more than 3 less than
    10) minutes, health professionals must prepare for delivery (Exhibit 4, pg.
    S37/38)

Causation

2.   (a) If your answer to 1(a) is yes, you must answer the
    following question. Have the plaintiffs proven on the balance of probabilities
    that but for the breach(es) of the standard of care by Dr. Tsandelis, [the
    baby] would not have suffered brain damage?

Yes

(b)  If your answer to question 2(a) is yes, how did Dr.
    Tsandelis breach(es) of the standard of care cause [the babys] brain damage? 
    Please provide specific answers:

The fact that
    Dr. Tsandelis didnt follow the SOGC Guideline, prepare for delivery,
    contributed to [the babys] eventual brain damage. For example, Dr. Tsandelis
    didnt initiate the birthing team &/or the O.R. at the critical time of the
    1st deceleration, valuable time elapsed. If Dr. Tsandelis would have secured
    the O.R. prior to the elective c-section patient being moved in at 10:20, the
    O.R. would have been ready for Maria and [the baby] would have been delivered
    sooner avoiding the asphyxia altogether. The c-section could have been
    performed right away & there would be no need to wait on necessary support
    personnel because at the time of the 1st deceleration it wasnt an urgent
    matter yet. The rest of the birthing team that were already booked for the
    elective c-section at 10:30 could have been used by any O.B. performing the
    c-section of Maria.

[22]

With
    respect to the hospital/nurses, the jury found that Dr. Tsandelis had
    established both a breach of standard of care (question 3(a)) and causation
    (question 4(a)).

[23]

With
    respect to allocation of damages, the jury was asked the following question and
    gave the following answer:

Allocation

5.       If you have answered yes to questions 1(a), 2(a), 3(a)
    and 4(a), you must answer the following question. If you find that Dr.
    Tsandelis and the Hospital/nurses breached the standard of care and that those
    breaches were causative of [the babys] brain damage, please state what
    percentage of liability is allocated to each of the defendants below.

The sum of the stated percentages must total 100%.

Dr. Tsandelis                                     32%

Grand River Hospital/Nurses              68%

Total                                                  100%

MOTION UNDER R. 52.08(1)

[24]

After the jurys verdict, the appellant brought
    a motion under r. 52.08(1) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, requesting that the trial judge not enter the judgment and
    either dismiss the action or order a new trial. The trial judge dismissed the
    motion and ordered judgment to be entered in accordance with the jury verdict.

[25]

I discuss this in more detail below.

ISSUES ON APPEAL

[26]

Dr. Tsandelis appeals the judgment alleging that
    the trial judge erred by (i) failing to dismiss the action or order a new trial
    pursuant to r. 52.08(1); and (ii) by improperly questioning witnesses during
    the trial.

ANALYSIS

[27]

The appellant frames the issues as an appeal
    from the trial judges dismissal of the r. 52.08 motion. However, the two
    grounds for the motion are the primary issues in this appeal. Both relate to
    causation: (i) that the jury did not apply the but for test for causation;
    and (ii) the jury verdict was unreasonable because there was no evidence that
    the baby would have been delivered early enough to avoid the damage.

[28]

I therefore address the issues as follows:

1.

Did the jury apply the but for test for
    causation?

2.

Was the jury verdict unreasonable?

3.

Did the trial judge err by dismissing the r. 52.08(1)
    motion?

4.

Were the trial judges questions improper?

The but for test

[29]

Once it is established that the defendant has
    breached the duty of care, the trier of fact moves to consider causation. The but
    for test for causation was set out in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181,
at para.
    8:

The test for showing
    causation is the but for test.  The plaintiff must show on a balance of
    probabilities that but for the defendants negligent act, the injury would
    not have occurred. Inherent in the phrase but for is the requirement that the
    defendants negligence was
necessary
to bring about the injury
    ― in other words that the injury would not have occurred without the
    defendants negligence. This is a factual inquiry. If the plaintiff does not
    establish this on a balance of probabilities, having regard to all the
    evidence, her action against the defendant fails. [Emphasis in original.]

[30]

The appellant argues that the jury did not apply
    this test, but rather applied the material contribution test, which the jury
    was not charged on. The parties on appeal agree that the but for test was the
    correct test to charge the jury on and that the material contribution test did
    not apply to these facts. The appellant points to the jurys answer to question
    2(b):

The fact that Dr. Tsandelis didnt
    follow the SOGC Guideline, prepare for delivery,
contributed to
[the babys] eventual
    brain damage. [Emphasis added.]

[31]

I do not agree that the
jurys words
    contributed to mean that the material contribution test was applied. The
    words responded to the questions asked and  as jurisprudence demonstrates 
    are consistent with the but for test.

[32]

The jury was asked to determine causation and
    then to determine allocation. Note the jury instructions:

[C]ausation is established if the evidence
    satisfies you that it is more likely than not that [the baby] would not have
    suffered brain damage but for the negligent conduct or breach of the standard
    of care by Dr. Tsandelis. In other words, although
you do not have to find that it was the
    sole cause
, does the evidence prove that the
    negligent conduct...was necessary to bring about [the babys] brain damage. [Emphasis
    added.]

And further:

[T]he defendants
conduct need not be the sole cause
. It does not have to be the most important cause. However, it must
    have been a necessary
cause of the harm. The plaintiffs
    must show on a balance of probabilities that the injury would not have occurred
    without the defendants negligence. Depending on your answers to some of the
    questions, you will be asked to determine the issue of causation with respect
    to Dr. Tsandelis and the nurses and Grand River Hospital. If you find that the
    acts or omissions of both Dr. Tsandelis and/or the nurses and/or the Grand
    River Hospital caused [the baby]s brain damage, then as I pointed out to you earlier,
    youll be required to apportion a degree of responsibility of each party as I
    pointed out in reviewing the question. [Emphasis added.]

[33]

It is not surprising that, when there is more than one potential
    tortfeasor, language relating to contribution would arise. This is particularly
    so when the jury is also required to apportion damages. This was addressed in
Clements
at para. 12:

In some cases, an
    injury  the loss for which the plaintiff claims compensation  may flow from a
    number of different negligent acts committed by different actors, each of which
    is a necessary or but for cause of the injury. In such cases, the defendants
    are said to be jointly and severally liable. The judge or jury then apportions
    liability according to the degree of fault of each defendant pursuant to
    contributory negligence legislation.

[34]

When the jury is asked to consider contributory negligence, it is
    understandable that it would use the language of contributed to. It does not
    mean that the instructions with respect to the but for test or causation were
    not followed, or that the jury applied the material contribution test. The jury
    response continued to state that, if Dr. Tsandelis had met his duty by
    preparing for delivery after the first deceleration, the O.R. would have been
    ready for Maria & [the baby] would have been delivered sooner avoiding the
    asphyxia altogether. This response indicates that the jury concluded that, but
    for the appellants failure to meet the standard of care, the brain damage
    would not have happened.

[35]

As this court recently said in
Donleavy v.
    Ultramar Ltd.
, 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at
    para. 72:

Even in the but
    for context, there are situations involving multiple defendants where courts
    have used contribution language to recognize that a defendants negligence is
    a cause of the plaintiffs injury. This is a potential source of confusion.
    The phrase caused or contributed is used in the
Negligence Act
,
    R.S.O. 1990, c. N.1, s. 1. As Lauwers J.A. observed in
Sacks v. Ross
, 2017
    ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused [2017] S.C.C.A. No.
    491, at para. 117, this is the way the causation test has been described in
    several cases in the Supreme Court (including as I noted earlier in
Athey
),
    and in this court; see also
White v. St. Josephs Hospital (Hamilton)
,
2019 ONCA 312
, at para. 25. Causation is made out under the but for test
    if the negligence of a defendant caused the whole of the plaintiffs injury, or
    contributed, in some not insubstantial or immaterial way, to the injury that
    the plaintiff sustained. Causation requires a substantial connection between
    the injury and the defendants conduct:
Resurfice
, at para.
    23,
Clements
, at paras. 20-21, 28. As Paciocco J.A. noted
    in
Smith v. Safranyos
, 2018 ONCA 760, at para. 128,
    McLachlin C.J.C.s reference to a robust and common sense application of the
    but for test of causation is a manifestation of this limit. Used in this
    way, the conclusion that one or more defendants materially contributed to a
    plaintiffs injury or loss simply recognizes that the defendants negligence
    was not the only cause.

[36]

Likewise, here. The jurys statement that the
    appellants conduct contributed to the damage merely recognizes that there was
    more than one cause. Note that in
Donleavy
, this court was considering
    the words of a trial judge, not a jury comprised of lay persons.

[37]

When there is more than one tortfeasor, contributory language might
    arise. It does not mean the wrong causation test was used. It is clear from the
    jury
s answer
that the proper test
    was used.

Unreasonable verdict

[38]

The appellant submits that there was no evidence
    from which the jury could conclude that the damage would not have occurred if
    the appellant had not been negligent. In other words, there is no evidence that
    the baby would have been delivered earlier and therefore the verdict is
    unreasonable.

[39]

A jury is entitled to draw reasonable inferences
    from accepted evidence. In
Stilwell v. World Kitchens
, 2014 ONCA 770,
    327 O.A.C. 146, this court said, at paras. 32-34:

[I]t is important to have regard to two
    well-developed and long-standing principles of law related to civil jury
    trials.

First, the standard of review of civil jury
    verdicts is exceptionally high. A civil jurys verdict should be set aside only
    where it is so plainly unreasonable and unjust that no jury reviewing the
    evidence as a whole and acting judicially could have arrived at the verdict.

Second, a jurys verdict is entitled to a fair
    and liberal interpretation in light of the evidence and of the circumstances.
    Answers by a jury should be given the fullest possible effect and supported, if
    possible, by any reasonable construction. A new trial should be ordered only
    where the jury seems to have confused  the issues at trial, it is doubtful
    whether the jury paid attention to the real point in issue, and the questions
    answered or unanswered leave the real issue in doubt and ambiguity. [Citations
    omitted.]

[40]

The appellant submits that there was no evidence
    from which the jury could come to a conclusion that, had the appellant met the
    standard of care, the baby would have been delivered before the damage
    occurred. He submits that general statements that the baby could have been
    delivered earlier do not satisfy the causation requirement.

[41]

The appellant relies on
Salter
v. Hirst
, 2011 ONCA 609, 341 D.L.R. (4th) 231. In
Salter
, this
    court concluded that, while the doctor was negligent in not transferring the
    patient to another hospital for further testing, there was no expert evidence
    to support the conclusion that the delay caused or contributed to the patients
    paraplegia. That is not the case here.

[42]

Here there was direct evidence from which the
    jury could conclude that, had the appellant not breached the standard of care,
    the caesarian section would have been done before the damage occurred. The jury
    found that the appellant breached the standard of care because he did not
    prepare for delivery after the first deceleration. Had he done so he would have
    secured the operating room. The operating room would have been ready for Ms.
    Uribe and the baby would have been delivered before the damage. The jury said
    this:

If Dr.
    Tsandelis would have secured the O.R. prior to the elective c-section patient
    being moved in at 10:20, the O.R. would have been ready for Maria and [the baby]
    would have been delivered sooner avoiding the asphyxia altogether.  The rest
    of the birthing team that were already booked for the elective c-section at
    10:30 could have been used by any O.B. performing the c-section of Maria.

[43]

This was a logical and available conclusion from the evidence
    that he should have returned to the hospital.
Dr. Barrett and
    Dr. Farine testified that the appellant should have gone to the hospital
    immediately after the first call from the nurse to assess the situation
    directly. Dr. Farine testified that if the appellant had been present at the
    hospital after the first phone call, the delivery would have occurred very
    quickly. Dr. Barrett testified:

[T]his is the time

to do a caesarian section and get a good outcome. It is absolutely
    indicated here. Again, my point is, even if you dont do it there, you come to
    the hospital. You be there if you start the oxytocin. You are not in your
    office waiting for the disaster to happen. [Emphasis added.]

Dr. Barrett also said that:

[A]t this time I believe there was an anesthesia,
    I believe there was an operating room. The patient they could have easily just
    moved her and done a caesarian section.

[44]

Recall the timing. The first phone call was at 10:02. Dr. Tsandelis
    was five minutes away and could have been at the hospital by 10:07 at which
    point he would have seen the fetal heart rate tracing, examined Ms. Uribe and
    called for an immediate caesarian section. At the very least, she would have
    been in the operating room by 10:25 when the total occlusion occurred. Even if
    he had not returned to the hospital, had he instructed staff to prepare for
    delivery, there were two other obstetricians there to conduct the surgery.

[45]

Consequently, the jury had the evidence to
    conclude that the caesarian section would have been done in time to avoid the
    brain damage. It was open to the jury to accept the evidence of Dr. Barrett and
    Dr. Farine and conclude that the caesarian section would have been done within
    8-15 minutes of the total occlusion, which would have avoided brain damage. The
    conclusion was not unreasonable.

Rule 52.08 motion

[46]

After the jury was discharged, the appellant
    moved under r. 52.08 on the basis that the jury failed to apply the but for
    test and that there was no evidence of causation. The appellant asked the trial
    judge to either dismiss the action or direct that it be retried with another
    jury.

[47]

The rule provides:

DISAGREEMENT OF THE JURY

52.08
(1)
    Where the jury,

(a)  disagrees;

(b)  makes no finding on which
    judgment can be granted; or

(c) 
    answers some but not all of the questions directed to it or gives conflicting
    answers, so that judgment cannot be granted on its findings,

the
    trial judge may direct that the action be retried with another jury at the same
    or any subsequent sitting, but where there is no evidence on which a judgment
    for the plaintiff could be based or where for any other reason the plaintiff is
    not entitled to judgment, the judge shall dismiss the action.

[48]

Here the jury did not disagree. Nor did the jury
    fail to answer all of the questions. In my view the jury did not fail to make
    findings on which judgment could be granted.

[49]

Nonetheless, the trial judge thoroughly and
    correctly addressed the appellants submissions. He examined the evidence in
    detail to conclude that there was evidence to support the jury verdict and used
    the proper foundation for reaching the verdict.

[50]

For the same reasons that I have set out above,
    the trial judge correctly determined that the motion should be dismissed.

Trial judges questions

[51]

The appellant submits that the trial judge
    improperly questioned witnesses by introducing a new theory of liability
    supporting the respondents case. He submits that the theory on which the jury
    found liability was a failure to prepare for delivery after the first phone
    call from the nurse.

[52]

The appellant points to sections of the evidence
    of Nurse Nyyssonen, Dr. Dan Farine (the respondents expert) and Dr. John Smith
    (the appellants expert). In each case, the trial judge posed the questions at
    the conclusion of the witnesss evidence and then asked counsel if there were
    any questions arising from his. The relevant portions of the transcript are as
    follows.

Saara Nyyssonen

THE COURT:  I just have one or two questions
    for you. At or about 10:20, you indicated you understood the baby was in
    distress?

A. Yes.

THE COURT:  And you realized that a C-section
    was going to have to be performed?

A. Yes.

THE COURT: You realized Dr. Tsandelis had to
    be notified right away?

A. Yes, I believe, or was he already notified.
    I'm not sure. 10:25 he was.

THE COURT:  Right.

A. According to this, yes.

THE COURT: And do you recall if it was you who
    contacted Dr. Tsandelis or was it someone else?

A. I believe  this, again, I can't say a
    hundred percent, but I believe it was me who talked to him, but whether I
    initiated  whether somebody else initiated the call.

THE COURT:  And you'd have expressed to him
    the urgency of the situation?

A. Yes.

THE COURT:  At any time did he direct you to
    have the on-call obstetrician to immediately perform the C-section?

A. No, I don't recall that at all.

THE COURT:  And if he had, would you have
    noted it?

A. Yes.

THE COURT:  And had the on-call...

A. As it was related to me.

THE COURT:  Right.

A. That knowledge. If it had been related to
    me, I would have charted it.

THE COURT:  And as the most responsible
    doctor, was it he who would have to give that direction, in your practice?

A. Yes.

Dr. Dan Farine

THE COURT:  I just might have a question or
    two. Doctor, I, I just have one question. Doctor Tsandelis got the phone call
    around 10:25. Whats the, what's the practice, what  I guess the question is
    could he at that stage have directed that the crash C-section be performed by
    the on-call obstetrician?

A. Absolutely.

THE COURT:  All right.

A. He, he should have asked, "Is somebody
    there that can do it?"  And, and he should say, "I'm on my way, I'll
    be there as fast as I can, but somebody else can start it."

THE COURT:  Okay, thank you. Any questions
    from mine?

MR. BENNETT:  No, Your Honour.

THE COURT:  Mr. Cruz?

MR. CRUZ:  Dr. Farine, His Honour's question
    was about the phone call at 10:25, you have nothing in your reports about that
    issue, right?

A. Right.

MR. CRUZ:  Thank you,

Dr. John Smith

COURT: [Referring to exhibit 4] So my question
    is, when the document, the ALARM document says prepare for discovery[sic]  or
    delivery, and the SOGC document says, start making arrangements for delivery,
    notify all the services. From your review of the record, is there any reason
    why that couldnt have taken place immediately after the phone call?

A. It could have taken place then, yes, but
    you mean at about 10:10, or 10:12?

THE COURT:  But  right. Just....

A. Yes, you could have done that. Again, doing
    a caesarean section at that point wouldnt be unreasonable, but also since the
    baby looked very well, carrying on  and again, recalling that....

THE COURT:  I'm more, I'm more interested in
    just putting  getting the pediatric people, anesthetic people on standby...

A. Yeah, well, they're....

THE COURT:  ...and going to the hospital. Is
    that....

A. Well she's at the hospital, and those....

THE COURT:  No, I'm talking about the doctor.

A. Oh, for Dr. Tsandelis, you wonder if it's
    possible?

THE COURT:  Getting the process going in case
    a C-section is necessary.

A. Yes, that could be done.

THE COURT:  All right. Okay. And that would be
    within the, the ambit envisaged in both documents?

A. Yes, but again, this is a team document, so
    prepare for delivery doesn't mean that the obstetrician has to be there. The,
    the delivery can be prepared...

THE COURT:  Of course, you can phone....

A. ...for, for  like...

THE COURT:  At 10:10.

A. ...by the team, right.

THE COURT:  Exactly.

A. And they are....

THE COURT:  The doctors are out?

A. Well, yes, or
    for the doctor that's there.

[53]

These questions were not improper.

[54]

A trial judge is entitled to question witnesses
    for clarification by intervening in the testimony of witnesses. In
Chippewas
    of Mnjikaning First Nation v. Ontario
, 2010 ONCA 47, 265 O.A.C. 247, at
    paras. 231, 238 and 243, leave to appeal refused, [2010] S.C.C.A. No. 91, this
    court considered questioning by a trial judge:

An examination of whether a trial judge has
    unduly intervened in a trial must begin with the recognition that there are
    many proper reasons why a trial judge may intervene by making comments, giving
    directions or asking questions during the course of a trial. A trial judge has
    an inherent authority to control the court's process and, in exercising that
    authority, a trial judge will often be required to intervene in the
    proceedings.



On occasion, trial judges may be required to
    play a more active role in asking witnesses questions. However, when they do,
    it is important that they use care and not create an impression through the
    questioning process of having adopted a position on the facts, issues or
    credibility.



All of that said,
    appellate courts are reluctant to intervene on the basis that a trial judge
    "entered the arena" and improperly intervened in a trial. There is a
    strong presumption that judges have conducted themselves fairly and
    impartially.  In the end, an appellate court should only intervene if
    satisfied that the trial judge's interventions, considered in the context of
    the entire trial, created a reasonable apprehension that the trial judge was
    biased.

[55]

The trial judge here followed the protocol
    referred to by this court said in
R. v. Danial
, 2016 ONCA 822, at
    para. 5:

A trial judge is
    entitled to ask questions for clarification. The trial judge here followed the
    long standing protocol articulated in
R. v. Stuckey
, 2009 ONCA 151 at para 64. He waited until the conclusion of the
    witness testimony, asked questions for clarification on a narrow issue, and
    allowed further re-examination. That some of the questions towards the end of
    the series of questions may have been leading would not lead a reasonable
    observer being apprised of all the facts to conclude that the trial judge was
    not impartial.

[56]

Questions by a trial judge may be problematic when they either
    disclose bias or lead to trial unfairness. There is a presumption of
    impartiality on the part of a trial judge and the trial judges questions do
    not disclose bias.
Apprehension of bias was not alleged by
    the appellant.

[57]

Instead, the appellant alleges that the trial judge introduced a new
    theory of liability and this was unfair. The new theory alleged is that the
    appellant failed to prepare for delivery after the first phone call. I do not
    agree that this was a new theory. Nor do I agree that it was introduced by the
    trial judge.

[58]

The fact that the appellant did not immediately
    prepare for delivery at 10:02 a.m. was squarely at issue throughout the trial.
    Exhibit 4 was the SOGC Fetal Health Surveillance Guideline. At pp. S37-38 of
    the Guideline, fetal heart rate deceleration is discussed:

Abnormal Intrapartum
    Electronic Fetal Monitoring Tracing

In the presence of an abnormal fetal heart rate
    pattern, usually operative delivery should be undertaken promptly unless (1)
    there is clear indication of normal fetal oxygenation by means of scalp pH
    assessment or (2) spontaneous delivery is imminent. Scalp sampling should not
    be considered in the case of prolonged deceleration of greater than three
    minutes. Usual action in the presence of an abnormal tracing includes preparing
    for operative delivery (operative vaginal delivery or Caesarean section) and
    notifying pediatric and anaesthetic services.

[59]

This was discussed during the evidence of experts for the respondents
    and the appellant.  Dr. Barrett, the expert for the respondents, was referred to
    the fetal heart-rate tracing and the SOGC guidelines. He testified as follows:

And you can see in the abnormal tracing, we
    have a single prolonged deceleration, more than three minutes, but less than 10
    minutes places it into the abnormal category.



So usually if you
    have an abnormal pattern, you've got to deliver this baby, unless you can be
    sure that the baby is fine. And they mention how you can be sure. It's an extra
    test that you have to do. The scalp stimulation is an examination of the mom,
    and what we do is we stimulate the baby's scalp to get a clear reaction of the
    baby. You get an acceleration. That's one way of assessing that the baby is okay,
    you can do that, or you actually measure by doing the PH, then it might be
    okay. But you've got to be there to do this. You've got to attend the patient.
    And, you know, in this case, even, even if you could assume that the baby was fine,
    which you can't do until you're there, you've still got to be there to see what
    happens again when you restart the Oxytocin. Just to stay at home and to ask
    the nurses is, is in my - after this abnormal deceleration, is, in my opinion, against
    the guidelines and against the standard of care.

[60]

During the cross-examination of Dr. Bernstein, the appellants expert,
    he was asked the following questions and gave the following answers:

Q. And turning to the Exhibit 4, page S37, which
    is the chart, the table, we've agreed that when we're plugging in the facts of
    our case, it fits squarely in this part of the chart here. The five-minute
    prolonged deceleration is longer than three and less than ten minutes. It is a
    single prolonged deceleration, right?

A. Correct.

Q. And then if we go down to action required, we
    can agree that the standard sets out that the obstetrician is to review overall
    clinical situation, obtain scalp pH if appropriate, and
prepare for delivery
. Agreed?

A. That's what it says.

Q. That is the standard?

A. Yes.



Q. And you agree that usually operative delivery
    should be undertaken promptly, right:  Thats what it says?

A. Thats what it says.



Q. So the only, the only potential exception to
    this guideline is if delivery is imminent, and its not, right?

A. Yes.



Q. And, of course, vaginal delivery is not really
    an option in this case because of the presentation of the patient?
[2]

A. Correct.

Q. So that means
prepare promptly for C-section
. Do you
    agree thats what it says?

A. That's what it says.

Q. It also says not only is the
obstetrician to prepare promptly for caesarian
    section, but he's to notify pediatric and anaesthetic services
, right?

A. Correct. [Emphasis
    added.]

[61]

This was not a theory introduced by the trial judge. It was clearly in
    issue and there is nothing unfair or improper about the questions. (While not
    determinative of the issue, I note that experienced trial counsel raised no
    concern when the questions were asked.)

CONCLUSION

[62]

I would dismiss the appeal with costs to the
    respondents fixed in the agreed upon amount of $20,000 inclusive of
    disbursements and HST.

Released: June 3, 2021 M.L.B.

M.L. Benotto J.A.

I agree B.W. Miller J.A.

I agree Gary Trotter J.A.





[1]
Exhibit 4



[2]
It was agreed that vaginal delivery was not possible because
    cervical dilation had stopped progressing.


