



COURT OF APPEAL FOR ONTARIO

CITATION: Champoux v. Jefremova, 2021 ONCA 92

DATE: 20210212

DOCKET: C67511

van Rensburg, Hourigan and Brown JJ.A.

BETWEEN

Penny-Lee Champoux

Plaintiff (Appellant)

and

Ljudmilla Jefremova
and Mohammed Khodabandehloo

Defendants (
Respondent
)

Geoffrey Adair and Peter Denton, for the appellant

Graham Ragan and Katie Ahn, for the respondent

Heard: November 19, 2020, by video conference

On appeal from the judgment of Justice James A. S. Wilcox
    of the Superior Court of Justice, dated September 4, 2019, with reasons
    reported at 2019 ONSC 5143.

Hourigan J.A.:

I.        Introduction

[1]

This is an appeal of the dismissal of a medical malpractice claim. The
    trials focus was whether the respondent, Ljudmilla Jefremova, breached the
    standard of care of a reasonable and prudent doctor when she treated Penny-Lee
    Champoux. The trial judge found that Dr. Jefremova met that standard of care
    and dismissed the claim in its entirety.

[2]

Two issues are raised on the appeal: (i) whether the trial judges
    reasons are insufficient to permit appellate review; and (ii) whether the trial
    judge erred in his consideration of a Response to Request to Admit filed by
    counsel for Dr. Jefremova.

[3]

As will be explained below, I have concluded that the judgment must be
    set aside and a new trial ordered. I accept the argument advanced by Ms.
    Champoux that the trial judge failed in his reasons to analyze essential
    components of her theory of liability and explain why he found that Dr.
    Jefremova did not breach the standard of care. Consequently, the trial judges
    reasons do not permit appellate review.  Regarding the analysis of the Response
    to Request to Admit, the trial judge issued contradictory reasons about the
    central issue of whether it constituted an accurate admission. This resulted in
    an unfair trial for Ms. Champoux and also warrants a new trial.

II.       FACTS

[4]

Given that I would order a new trial, only a brief recitation of the
    facts is necessary to put the grounds of appeal in context.

[5]

Ms. Champoux attended Kirkland Lake Hospitals emergency department on
    June 29, 2012, intending to seek treatment for an abscess on her buttocks area
    and hyperglycemia, as she could not get her high blood sugars under control.
    She has various underlying health problems, including diabetes, PTSD, and
    fibromyalgia. At the emergency department, a nurse triaged Ms. Champoux, took
    her vital signs and did a blood sugar reading.

[6]

Dr. Jefremova then examined Ms. Champoux and noted that her heart rate
    was elevated and that her blood sugar level was 11.6. However, prior hospital
    records indicated that Ms. Champouxs heart rate was always elevated without
    cardiac issues and that her normal glucose level was between 8 and 12.5. Dr.
    Jefremova assessed the abscess, decided it was not yet ready to break, and sent
    Ms. Champoux home.

[7]

Ms. Champoux returned to the emergency department on July 2, 2012,
    because her abscess had grown rapidly, and her blood sugar was higher. She was
    admitted for surgery to drain the abscess and discharged on July 13, 2012. Ms.
    Champoux was re-admitted to the hospital several times afterward to deal with
    abscess drainage.

[8]

Ms. Champoux brought a medical malpractice action against Dr. Jefremova
    and Dr. Mohammed Khodabandehloo, who had given her a cortisone shot on June 19,
    2012. However, the action against Dr. Khodabandehloo was dismissed before
    trial.

[9]

In his reasons for decision, the trial judge reviewed the evidence of
    Ms. Champoux, her mother-in-law, Dr. Jefremova, and two experts (Dr. Fernandes,
    who testified for Ms. Champoux, and Dr. McMurray, who testified for Dr.
    Jefremova), and documents related to the medical events. The evidence focused
    on whether Dr. Jefremova breached the standard of care of a reasonable and
    prudent doctor in her treatment of Ms. Champoux on June 29, 2012.

[10]

The
    location of the abscess was an important issue because the standard of care
    differs based on whether the abscess was a simple buttocks abscess, as opposed
    to a perianal, ischiorectal, or anorectal abscess. On the issue of the location
    of the abscess, a Request to Admit served by Ms. Champouxs counsel became
    significant at trial. It was served on Dr. Jefremovas counsel on September 19,
    2018. Among other things, Ms. Champoux requested that Dr. Jefremova admit that
    [o]n June 29, 2012, Penny Lee Champoux had a perianal abscess.

[11]

On
    October 9, 2018, a Response to Request to Admit was delivered by counsel for
    Dr. Jefremova. Among other refusals, Dr. Jefremovas counsel refused to admit
    that [o]n June 29, 2012, Penny Lee Champoux had a perianal abscess. In the
    reason for this refusal, Dr. Jefremovas counsel stated that [o]n June 29,
    2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the
    general perianal area.

[12]

At
    trial, Ms. Champouxs counsel closed his case on December 12, 2018, without
    referring to the Request to Admit. It was entered as exhibit 9 on December 14,
    2018, as part of a package that included the Request to Admit, the Response to
    Request to Admit, and a document entitled Admissions Made by the Defendant
    Jefromova [
sic
].

[13]

Dr.
    McMurrays evidence in chief was that Ms. Champoux suffered from a simple
    buttock abscess and that Dr. Jefremova had met the standard of care. In
    cross-examination, Ms. Champouxs counsel put to Dr. McMurray that Dr.
    Jefremova had formally admitted that on June 29 the abscess was in the general
    perianal area or region. Dr. McMurray opined that if it was clearly a perianal
    abscess or in the perianal region, Ms. Champoux should not have been sent home
    and the abscess should have been incised and drained right away by the
    emergency room physician or a surgeon.

[14]

On
    December 15, 2018, Dr. Jefremovas counsel wrote to Ms. Champouxs counsel to advise
    that the Response to Request to Admit had left her office through inadvertence
    and without Dr. Jefremovas instructions, and to request consent to withdrawal
    of the admission. By email dated December 16, 2018, Ms. Champouxs counsel
    advised that his client would not consent to the withdrawal of the admission.

[15]

Dr.
    Jefremova brought a motion seeking to clarify or, in the alternative, withdraw the
    admission contained in the Response to Request to Admit. In written reasons,
    the trial judge dismissed the motion to withdraw the admission. He also found
    that it was inappropriate at that point in the proceeding to rule on the
    interpretation to be given to the Response to Request to Admit. Instead, he
    held that the interpretation of the admission was best left for consideration
    after final submissions.

[16]

In
    his reasons for decision, the trial judge considered all of the evidence and
    found that on June 29, 2012, Ms. Champoux had presented with an abscess located
    near the middle of the left buttock cheek. He concluded that Dr. Jefremova had
    met the standard of care based on the location of the abscess. The trial judge
    did not go on to consider the issues of causation or damages. The action was
    dismissed.


III.

ANALYSIS

[17]

As
    noted, Ms. Champoux makes two arguments on this appeal. The first is that the
    trial judge provided insufficient reasons. The second is that the trial judge
    erred in disregarding Dr. Jefremovas formal admission in determining the
    location of the abscess on June 29, 2012.  These arguments will be considered
    in turn below.

(a)

Insufficient Reasons

[18]

The
    law regarding insufficient reasons is well established. Reasons serve many
    functions, they: (i) justify and explain the result; (ii) tell the losing party
    why they lost; (iii) provide public accountability and satisfy the public that
    justice has been done and is seen to have been done; and (iv), permit effective
    appellate review:
F.H. v. McDougall
, 2008 SCC 53, [2008] 3 S.C.R. 41,
    at para. 98. Meaningful appellate review is precluded if the decision of the
    court below does not provide some insight into how the legal conclusion was
    reached and what facts were relied on in reaching that conclusion:
Longo v.
    MacLaren Art Centre
, 2014 ONCA 526, 323 O.A.C. 246, at para. 63.

[19]

When
    reasons do not fulfill one or more of their functions, it may be necessary for
    the appellate court to send the matter back to the court below for a new
    hearing. This is hardly a desirable result, given the wasted costs of the first
    hearing and the delay in having the case determined on the merits. Yet
    sometimes, this rather drastic result is necessary to protect the judicial
    systems integrity.

[20]

As
    this court observed in
Gendron v. Doug C. Thompson Ltd. (Thompson Fuels)
,
    2019 ONCA 293, 34 C.P.C. (8th) 144, at para. 93, leave to appeal refused,
    [2019] S.C.C.A. No. 228, the insufficient reasons ground of appeal appears with
    such frequency in this court that it is fast becoming a boilerplate ground of
    appeal. The court cautioned that the ground of appeal was being asserted in
    cases where there was no reasonable basis for arguing that the reasons for
    decision of the court below were anything other than straightforward.  This is
    not such a case. Instead, this is a situation where the parties and the court are
    left to speculate on how the trial judge reached his conclusion on critical
    issues.

[21]

The
    trial judge spent much of his reasons summarizing the evidence of the witnesses
    who testified at trial. This approach to writing reasons is often problematic.
    There is nothing impermissible in writing reasons this way, and it is important
    to capture the evidence adduced at trial. However, it is worth emphasizing that
    a detailed factual recitation is not a substitute for a considered analysis of
    the issues. What frequently happens when reasons begin with a very detailed
    recitation of the evidence is that when it comes time to grapple with the
    issues in the case, the analysis is largely conclusory. This was what happened
    in the case at bar.

[22]

In
    his reasons, the trial judge concluded that
the abscess was located near the middle of the plaintiffs
    left buttock cheek. He then went on to comment on the expert evidence at paras.
    139-140:

I was favourably impressed with Dr. McMurrays evidence and
    prefer it to Dr. Fernandess. Meaning no disrespect to Dr. Fernandes who has
    impressive credentials, as noted above, I found Dr. McMurrays experience to be
    more closely related to the situation in this case. Also, I was impressed with
    the apparent practicality of his approach to scenarios such as the defendant
    was confronted with on June 29, 2012, as compared to what I saw to be the more
    academic approach of Dr. Fernandes. Furthermore, I find that Dr. McMurrays
    initial opinion was based on the facts as found, specifically about the
    location of the abscess when the defendant, Dr. Jefremova, saw it on June 29,
    2012.

Consequently, I am not persuaded that the defendant Dr.
    Jefremova failed to meet the standard of care on June 29, 2012 and would
    dismiss the claim against her.

[23]

As
    in most medical malpractice cases, the expert evidence was of significant
    importance. There were several areas where the experts disagreed. The trial
    judge was obliged to explain in some level of detail why he preferred the
    evidence of Dr. McMurray over Dr. Fernandes. Expressing a general preference
    based on a statement that he found Dr. McMurrays experience to be more
    closely related to the situation in this case does not suffice. Nor does a
    reference to Dr. McMurrays approach being more practical. The trial judge was
    obliged to weigh in on important issues, including, but not limited to:

·

Was the standard of care breached when Ms. Champoux was sent home
    without Dr. Jefremova knowing why her heart rate was elevated and her blood
    sugars uncontrolled?

·

Was Dr. Fernandes correct in his criticism of Dr. Jefremova when
    he said that she failed to undertake appropriate testing of Ms. Champoux?

·

Was Dr. Fernandes correct when he opined that the standard for
    all abscesses is immediate incision or drainage once they are diagnosed?

·

Was Dr. McMurray correct when he testified that there were two
    abscesses, one on the buttocks and an ischiorectal one that was discovered
    during surgery?

·

Why was Dr. McMurrays experience considered more applicable to
    the case at bar when he testified that he had never aspirated an abscess or seen
    it performed?

·

Was the standard of care breached by Dr. Jefremova in delaying
    treatment?

[24]

Given
    the failure to consider these and other key issues, the trial judges reasons
    are not amenable to appellate review. Understandably, Ms. Champoux complains
    that the trial judge failed to engage with the crux of the case before him and,
    accordingly, she is unable to understand why her claim was dismissed. As an
    appellate court, we are also left in the dark about how the trial judge dealt
    with these critical issues. For this reason, I would order a new trial.

(b)

Withdrawal of Admission

[25]

I
    would also order a new trial as a result of the trial judges treatment of the
    admission in the Response to Request to Admit. His analysis resulted in an
    unfair trial for Ms. Champoux.

[26]

Before
    considering the trial judges analysis, I would reject Dr. Jefremovas argument
    on appeal that the impugned admission in the Response to Request to Admit was
    not a formal admission because it was proffered in the context of a refusal.
    The purpose of request to admit procedures  to save time and costs by
    narrowing the facts in issue  would be undercut if litigants could deny a fact
    in a Request to Admit on the basis that an alternative set of facts is
    accurate, but then treat those proffered alternative facts as non-binding. That
    approach would obfuscate rather than clarify what facts are in issue.  Further,
    Dr. Jefremovas counsel brought a motion to withdraw the admission after seeking
    Ms. Champouxs consent to the withdrawal, indicating that all parties viewed
    the response as a formal admission.

[27]

Turning
    to the trial judges analysis, in the written reasons on the motion to withdraw
    the admission, the trial judge stated at para. 26:

I am not persuaded that it is appropriate at this point in the
    proceeding to rule on the interpretation to be given to the Response to Request
    to Admit. Rather, that evidence would be left for consideration after the trial
    submissions have been heard, if the admission still existed then. Consequently,
    it is necessary in the circumstances to consider the request to withdraw the
    admission. For this, I turn to the applicable test.

[28]

The
    trial judge then went on to apply the test from
Antipas v. Coroneos
(1988), 26 C.P.C. (2d) 63 (Ont. H.C.), as recently endorsed in
Liu v. The
    Personal Insurance Company
, 2019 ONCA 104, 89 C.C.L.I. (5th) 195, at para.
    13.  That test directs courts to first consider whether the admission is one
    purely of fact, law, or mixed fact and law (since questions of law can be more
    easily withdrawn than questions of fact), and then apply a three-part conjunctive
    test regarding when an admission could be withdrawn, being:

(a)

Does the

proposed amendment
    raise a triab
l
e issue in respect

to

the

truth

of

the

admission?;

(b)

Is there a
r
easonable explanation
for the w
it
hdrawal,

such

as
    inadvertence or wrong instructions?;

and,

(c)

Has the party w
i
shing to
    withdraw the admission established that the
wi
thdrawal
will not result in

any preju
d
i
ce that cannot be compensated

for in costs?

[29]

The
    trial judge found that the admission was one of pure fact.  His analysis of the
    triable issue factor was as follows, at para. 29:

On the second
    branch, this is a medical malpractice case. The result depends on the standard
    of care that applies in the circumstances. Insofar as an abscess is concerned,
    what the standard is depends on its location and its type. The interpretation
    of the Response to Request to Admit is integral to determining these. The
    defence submitted that the admission is not incorrect, but is being
    misinterpreted. As I stated above, the interpretation of the admission is to be
    left to follow trial submissions. Therefore, I find no triable issue with
    respect to the truth of the admission, as contrasted with its interpretation.

[30]

The
    trial judge noted that the test for a withdrawal of an admission was
    conjunctive. Therefore, he found that Dr. Jefremova had not met her onus for
    the withdrawal of an admission. He dismissed the motion for leave to withdraw
    the admission.

[31]

In his reasons for decision on the trial, the trial judge
    reviewed the evidence regarding the location of the abscess and concluded, at
    para. 125, 
it is
    asking too much in seeking to have that imprecise expression [in the Response
    to  Request to Admit] accepted as proof on the balance of probabilities that
    the plaintiff presented to the ER with anything more serious than an abscess on
    her buttocks.

[32]

I
    note that nowhere in his reasons on the motion or reasons for judgment does the
    trial judge consider the document in exhibit 9 wherein the admissions made by
    Dr. Jefremova are listed. Among those admissions is the following: On June 29,
    2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the
    general perianal area (response to fact 10).

[33]

The
    problem with the trial judges analysis is that he dismissed the motion to
    withdraw the admission on the basis that it was an admission of pure fact and
    that there was no triable issue with regard to its truth. However, in his
    analysis of the admissions interpretation, he proceeded to effectively conduct
    an analysis of the truth of the admission.  Thus, the reasons on the motion and
    the reasons on the trial were contradictory. In the first, he concluded that
    there was no triable issue regarding the truth of the admission and in the
    second, he undertook an analysis of whether the admission was true and found
    that it was not true.

[34]

A
    trial judge has the freedom to interpret what an admission means:
Allto
    Construction Services Ltd. v. Toronto and Region Conservation Authority
,
    2017 ONCA 488, at para. 11. But that interpretive exercise cannot morph into an
    analysis of the veracity of the admission. A formal admission is not like other
    pieces of evidence led at trial that a judge can weigh at their discretion. A
    formal admission is conclusive of the matter admitted. The court is bound to
    act on formal admissions before it, even if other evidence contradicts the
    admission:
Serra v. Serra
, 2009 ONCA 105, 93 O.R. (3d) 161, at para.
    106.

[35]

In
    the case at bar, the trial judge weighed the admission against the other
    evidence led at trial and proceeded to effectively permit the withdrawal of the
    admission on the basis that it was not accurate. He did so despite his earlier
    finding that there was no triable issue in respect of the truth of the
    admission and his dismissal of the motion to withdraw the admission. In so
    doing, he ignored the issue of non-compensable prejudice to Ms. Champoux, who
    clearly based her trial strategy on the fact that she had this admission. In my
    view, his reasons effectively bypassed the rigorous test for the withdrawal of
    an admission and resulted in an unfair trial for Ms. Champoux. This trial unfairness
    requires an order for a new trial.

IV.     Disposition

[36]

For
    the foregoing reasons, I would set aside the trial judge's judgment and order a
    new trial.

[37]

Regarding
    the costs of the first trial and the costs of the appeal, if no agreement can
    be reached, I would order that: Ms. Champoux serve and file her costs
    submissions, including a bill of costs, within 14 days of the issuance of these
    reasons, Dr. Jefremova serve and file her responding costs submissions,
    including a bill of costs, within 10 days of the receipt of Ms. Champoux's
    submissions, and any reply submissions be served and filed within 7 days of the
    receipt of the responding submissions.

Released: K.M.v.R. February 12, 2021

C.W.
    Hourigan J.A.

I agree. K.
    van Rensburg J.A.

I agree. David
    Brown J.A.


