



COURT OF APPEAL FOR ONTARIO

CITATION: Farej v. Fellows, 2022 ONCA 254

DATE: 20220329

DOCKET: C68515

Doherty, Miller and Sossin JJ.A.

BETWEEN

Sabrin
    Farej, an infant under the age of eighteen years by her Litigation Guardian
    Amara Idris, Amara Idris, personally
and in her capacity
    as Estate Trustee of the Estate of

Romodan
Farej

Plaintiffs

(Appellants/Respondents by
    Cross-Appeal)

and

George Fraser Fellows

Defendant

(Respondent/Appellant by
    Cross-Appeal)

AND BETWEEN

Murad
    Farej and Muntasir Farej, a minor by his Litigation Guardian Murad Farej

Plaintiffs

(Appellants/Respondents by
    Cross-Appeal)

and

George Fraser Fellows

Defendant

(Respondent/Appellant by
    Cross-Appeal)

John J. Adair, Jordan V. Katz, Duncan
    Embury, Daniela M. Pacheco and Brandyn Di Domenico, for the appellants

Peter W. Kryworuk and Jacob R.W.
    Damstra, for the respondent

Heard: October 27 and 28, 2021
    by videoconference

On appeal from the judgment of Justice Kelly
    A. Gorman of the Superior Court of Justice, dated November 23, 2020, and
    reported at 2020 ONSC 3732, dismissing the action.

Doherty J.A.:


I



overview

[1]

This is a truly tragic case. Sabrin Farej
    (Sabrin) was born on June 3, 2007 in London, Ontario. She was profoundly
    disabled at birth and continues to be so. Sabrin cannot walk, talk or feed
    herself. Sabrin requires 24-hour a day care, is totally dependent on her family
    and caregivers, and will be for the rest of her life. Sabrins life expectancy
    is about 38 years.

[2]

Sabrin suffered acute near total oxygen
    deprivation for about 25 to 30 minutes before her birth. The oxygen deprivation
    led to severe brain damage and damage to other vital organs, leaving Sabrin with
    multiple devastating, permanent disabilities.

[3]

Sabrin, her parents, Amara Idris and Romodan
    Farej, and her two brothers sued Ms. Idris obstetrician, Dr. George Fraser
    Fellows, alleging he was negligent during Sabrins delivery.

[4]

The evidence at trial focused primarily on the
    26 minutes between Dr. Fellows arrival in the delivery room at 11:01 p.m. and
    Sabrins delivery at 11:27 p.m. Dr. Fellows faced an obstetrical emergency when
    he walked into the delivery room. Sabrin was not getting an adequate oxygen
    supply. Dr. Fellows believed he had to deliver Sabrin as quickly as was safely possible.
    Dr. Fellows elected to proceed with a vaginal delivery. After two unsuccessful
    attempts to deliver Sabrin, Dr. Fellows was able to deliver her on his third
    attempt, some 26 minutes after he entered the delivery room.

[5]

The plaintiffs alleged that Dr. Fellows fell
    below the applicable standard of care in several respects. Their main argument focused
    on Dr. Fellows decision to deliver Sabrin vaginally with the assistance of
    forceps. The plaintiffs argued that the applicable standard of care required Dr.
    Fellows to proceed immediately with an emergency C-section at 11:05 p.m., by
    which time he had assessed the situation and observed blood in Ms. Idris
    amniotic fluid after he ruptured her membranes. The plaintiffs maintained that by
    this time, Dr. Fellows knew there was reason to suspect that Ms. Idris had
    suffered a uterine rupture, a life-threatening complication. He also knew
    Sabrins head was above her mothers pelvic bone. Both the uterine rupture and
    the position of the babys head contraindicated a vaginal delivery.

[6]

The plaintiffs argued that, had Dr. Fellows proceeded
    immediately with an emergency C-section, as he should have, Sabrin would have
    been delivered within 8 to 10 minutes, approximately 12 to 14 minutes before
    she was actually delivered. The plaintiffs submitted that this delay caused or materially
    contributed to the catastrophic injuries Sabrin had when she was born.

[7]

In addition to arguing that Dr. Fellows should
    have proceeded immediately with an emergency Caesarean section, the plaintiffs argued
    that after Dr. Fellows decided to proceed with a vaginal delivery, he made a
    series of decisions that fell below the applicable standard of care. Those
    errors, considered individually or cumulatively, caused or materially
    contributed to Sabrins injuries.

[8]

The trial judge dismissed the action. She found against
    the plaintiffs on all three issues relevant to liability. First, she found the
    plaintiffs had failed to establish any breach of the applicable standard of
    care by Dr. Fellows. Second, she found no causal link between any of Dr.
    Fellows actions and Sabrins injuries. Third, she rejected the argument that Dr.
    Fellows had failed to obtain the required informed consent before proceeding
    with a vaginal delivery using forceps.

[9]

Although the trial judge found no liability, she
    proceeded to consider damages. Her damages assessment largely adopted the
    position advanced by the plaintiffs.

[10]

Sabrin, her mother, her brothers, and her
    fathers estate (her father unfortunately died before trial) appeal from the
    dismissal of the action.
[1]
They accept that, on the evidence, the trial judge could have dismissed the
    action. They submit, however, that the reasons are legally inadequate in that
    they do not permit meaningful appellate review. The appellants advance several
    arguments which they assert demonstrate the inadequacy of the reasons on most
    of the crucial issues at trial.

[11]

With respect to remedy, the appellants submit
    that if this court concludes the reasons are inadequate and the judgment must be
    set aside, this court is not the appropriate forum in which to examine the
    complicated and conflicting evidence and engage in the extensive fact-finding
    and credibility assessments necessary to resolve the many contested issues. Counsel
    submits that the interests of justice require that this court order a new trial
    on liability.

[12]

The respondent describes the appellants
    submissions as an attempt to relitigate the credibility assessments and
    findings of fact made by the trial judge. The respondent submits that a review
    of the reasons shows the trial judge had a firm grasp of the evidentiary record,
    an understanding of the applicable legal principles, and an appreciation of the
    issues to be resolved. The respondent further contends that the bases upon
    which the trial judge decided the material issues are clear when the reasons
    are read in the context of the evidence, and the detailed written and oral
    submissions made at trial.

[13]

Alternatively, the respondent submits that, if
    the appeal is allowed and a new trial ordered, the new trial should be on all
    issues, including damage-related issues. The respondent points out that only
    some of the damage-related issues were addressed by the trial judge. The respondent
    further contends that if Dr. Fellows is found liable on a retrial, the findings
    of facts relevant to liability may be relevant to the assessment of damages.
    Only the trial judge at the retrial can properly make that damage assessment.

[14]

The respondent also brings a cross-appeal,
    challenging aspects of the trial judges damages assessment. This appeal is
    contingent upon this court both ordering a new trial on liability and rejecting
    the respondents submission that if there is to be a new trial, it should be on
    all issues, including damages.

[15]

The respondent submits, that if this court
    reaches the contingent cross-appeal, the trial judge made two very significant
    errors, both of which require a recalibration of the damages as assessed by her.


II



my conclusion

[16]

The evidence at trial was lengthy and complex.
    The trial judge had to consider a series of difficult factual issues. Her
    reasons are, in many respects, comprehensive and clear. The appellants contend,
    however, that the reasons are inadequate in respect of several issues that were
    central to the appellants case on liability.

[17]

For the reasons that follow, I am satisfied that
    two of the arguments advanced by the appellants should succeed. The trial
    judges reasons with respect to causation and her reasons dealing with one of
    the several allegations of negligence are inadequate. On these two issues, the
    reasons do not reveal critical findings that had to be made, and do not explain
    how the trial judge arrived at some of the conclusions she did reach. This
    court cannot meaningfully review her decision on those two issues. The
    inadequacies in the reasons, taken together, require the setting aside of the judgment
    dismissing the action. I agree with the appellants that, in the circumstances,
    a new trial is the appropriate remedy. I also agree with the respondent that
    the new trial should be on all issues relating to liability and damages.

[18]

In the reasons that follow, I explain why I
    conclude the trial judges reasons are fatally inadequate in respect of the two
    issues identified above. Given my conclusion that those errors require a new
    trial, it is unnecessary to deal with all of the other alleged inadequacies
    identified by the appellants. I will, however, examine what I see as the other main
    arguments advanced by the appellants. In my view, none of those arguments
    should succeed.


III



the facts

[19]

This is a fact-intensive appeal. Both counsel,
    in their written and oral submissions, have gone through the evidentiary record
    in considerable detail. Different parts of the evidence are germane to
    different arguments advanced by the appellants. I will leave most of the
    details of the evidence until I address those specific arguments. What follows
    is a summary intended to provide the essential narrative and context for the arguments
    advanced on appeal.

[20]

Ms. Idris and her husband, Romodan Farej, immigrated
    to Canada in 1997. They had a son Murad, born in 1999, and a second son,
    Muntasir, born in June 2005. Dr. Fellows provided pre- and post-natal care in
    both pregnancies, but he was not involved in either delivery. By all accounts,
    Ms. Idris and her husband got along well with Dr. Fellows and they developed a
    good relationship over the years. Ms. Idris was happy with the care he provided.

[21]

When Ms. Idris was pregnant with her first
    child, Murad, she told Dr. Fellows she would prefer to deliver vaginally. It
    turned out, however, that Murad was in a breech position and a Caesarean
    section was necessary. There were no problems with the delivery or the
    postnatal care.

[22]

When Ms. Idris was pregnant with Muntasir, she
    told Dr. Fellows she wanted to deliver Muntasir vaginally, even though her
    first baby was born by Caesarean section. Dr. Fellows explained to her that
    vaginal birth after a Caesarean (VBAC) was possible. Ms. Idris eventually
    gave birth vaginally, although the attending obstetrician had recommended a Caesarean
    section when Ms. Idris labour became prolonged. Ms. Idris, however, persisted
    and her baby was born vaginally. There were no problems.

[23]

Just as with Ms. Idris two earlier pregnancies,
    Dr. Fellows provided prenatal care to Ms. Idris when she was pregnant with
    Sabrin in 2006. They discussed how Ms. Idris would give birth. They agreed they
    would make the decision based on how things were going in the hospital at the
    time of the birth. The pregnancy was uneventful and Dr. Fellows had no concerns
    about Ms. Idris or the babys wellbeing during the pregnancy.

[24]

On June 3, 2007, Ms. Idris went into labour with
    Sabrin. She arrived at the hospital at about 7:30 p.m. with her husband and a
    friend. Ms. Idris was told Dr. Fellows was in the hospital and would deliver
    the baby. The nursing staff immediately put a fetal heart monitor (FHM) in place.

[25]

According to Ms. Idris, she began to experience
    considerable pain at around 9:30 p.m. The pain continued even after an
    epidural. She asked to see Dr. Fellows but was told by the nursing staff that
    it was not time to call him.

[26]

By 10:24 p.m., Ms. Idris was fully dilated. As
    of approximately 10:45 p.m., the FHM had been showing variable decelerations in
    Sabrins heart rate for close to an hour. At 10:55 p.m., her heart rate dropped
    precipitously and remained in a prolonged deceleration, indicating that blood
    flow to Sabrins brain had essentially stopped.

[27]

The attending nurse paged Dr. Fellows at 10:55
    p.m. He was delivering another baby. Dr. Fellows arrived at Ms. Idris bedside
    at 11:01 p.m. He quickly determined that Sabrin was not getting an adequate
    oxygen supply and was in severe distress. At 11:04 p.m., Sabrins heart rate
    was bradycardic, meaning it was at or below 60 beats a minute. Bradycardia was
    a clear sign to Dr. Fellows that Sabrin was not getting oxygen to her brain. Dr.
    Fellows knew he was facing an obstetrical emergency and had to take immediate
    action to deliver Sabrin as quickly as safely possible.

[28]

Dr. Fellows performed a vaginal and abdominal
    examination of Ms. Idris. He could see the position of the babys head. Dr.
    Fellows realized, that because of Sabrins positioning, her head would have to be
    turned if she was delivered vaginally.

[29]

At 11:05 p.m., Dr. Fellows artificially ruptured
    the membranes to facilitate delivery. There was blood in the amniotic fluid. The
    presence of blood in the amniotic fluid gave Dr. Fellows added concerns about
    the wellbeing of both Sabrin and her mother. Dr. Fellows suspected a placental
    abruption, meaning the placenta had detached from the uterus, thereby
    separating Sabrin from her source of oxygen. Dr. Fellows differential
    diagnosis included the possibility that Ms. Idris uterus had ruptured. A uterine
    rupture can result in quick and substantial blood loss by the mother and is a
    life-threatening complication for both the mother and the baby. The two
    conditions share many symptoms. Both conditions are serious and must be
    addressed immediately. A uterine rupture is more serious, but a placental
    abruption is more common.

[30]

Dr. Fellows testified that, after he ruptured
    the membranes, he believed he was dealing with a placental abruption, but was
    alive to the possibility of a uterine rupture. Dr. Fellows indicated his
    immediate concern was Sabrins wellbeing. She had to be delivered immediately.
    Ms. Idris was stable and alert.

[31]

Dr. Fellows decided that a vaginal delivery would
    be the fastest and safest way to deliver Sabrin. In his evidence, Dr. Fellows outlined
    several considerations that led him to that conclusion, including Ms. Idris successful
    prior vaginal delivery of her second son, who was a larger baby than Sabrin. Dr.
    Fellows told Ms. Idris to push, but quickly concluded that pushing alone would
    not deliver Sabrin. Dr. Fellows decided to use forceps to deliver Sabrin.

[32]

Using Tucker-McLean forceps, Dr. Fellows began
    to move the baby down the birth canal. To turn Sabrins head so she would be in
    a proper position for delivery, Dr. Fellows had to release the forceps and then
    reapply them. He anticipated that Sabrin would remain near the crowning
    position when he released the forceps. Instead, when he released the forceps,
    there was a large gush of blood and Sabrin retreated back up the vaginal
    cavity. This occurred at about 11:07 p.m. The blood made Dr. Fellows more
    concerned about the possibility of a uterine rupture.

[33]

Dr. Fellows decided to make a second attempt to
    deliver Sabrin using forceps. This time, he used Kielland forceps which would
    allow him to deliver Sabrin without releasing the forceps during delivery. Dr.
    Fellows applied the forceps and once again the baby began to descend the birth
    canal. However, as Sabrin approached the crowning position, Dr. Fellows became
    concerned that if he completed the delivery with the Kielland forceps, the configuration
    of those forceps would cause considerable damage to Ms. Idris perineum. Dr.
    Fellows decided to remove the Kielland forceps, believing that Ms. Idris could push
    the baby out. When he released the forceps, Sabrin again retreated back into
    the vaginal cavity.
[2]
Dr. Fellows now suspected a uterine rupture.

[34]

Dr. Fellows was cross-examined as to how long
    his efforts to remove Sabrin with the Kielland forceps took. As I read his
    evidence, Dr. Fellows agreed his efforts with the Kielland forceps took about
    five minutes.

[35]

Dr. Fellows made a third attempt to deliver
    Sabrin vaginally with forceps. This time, using the Tucker-McLean forceps, and
    after performing an episiotomy, which involves cutting the perineum, Dr.
    Fellows successfully manoeuvred Sabrin to a crowning position. He released the
    forceps and told Ms. Idris to push. Sabrin arrived about 30 seconds later at 11:27
    p.m.

[36]

In argument, counsel for the appellants
    submitted that Dr. Fellows agreed the third and ultimately successful attempt
    to deliver Sabrin took about 15 minutes. Counsel for the respondent submitted that,
    while the appellants suggested to Dr. Fellows that the third effort to deliver
    Sabrin took 15 minutes, he did not agree with that suggestion.

[37]

Counsel for Dr. Fellows reading of the evidence
    may be accurate. Some of the times relied on by the appellants in their
    timeline for the delivery are clearly approximations. They are, however,
    estimates made within an undoubtedly very narrow timeframe. Taking into account
    the overall timeframe of 26 minutes from Dr. Fellows arrival in the delivery
    room to the delivery of Sabrin, and the agreed upon times at which other events
    occurred, it seems reasonable to conclude the third and successful attempt to deliver
    Sabrin took something in the order of 15 minutes.

[38]

After Dr. Fellows delivered Sabrin, he took Ms.
    Idris to the operating room and performed a laparotomy. Dr. Fellows located a
    laceration on the back of her uterus. Ms. Idris had lost a significant amount
    of blood. Dr. Fellows successfully repaired and reattached the lower uterine
    section of the uterus to the walls of the vagina. Ms. Idris stayed in the
    hospital for seven or eight days, but recovered without further incident.

[39]

Ms. Idris was told within a few days that Sabrin
    had suffered a catastrophic brain injury and would never be able to eat, walk
    or talk. Ms. Idris had a brief conversation with Dr. Fellows about a month
    after the delivery. He told her everything was fine until the last minutes.

[40]

Dr. Fellows testified that he remains convinced,
    even with the benefit of hindsight, that he chose the proper mode of delivery
    and that he was correct in attempting to continue to effect the delivery with
    forceps even after two unsuccessful attempts. In Dr. Fellows opinion, had he
    abandoned vaginal delivery with the use of forceps in favour of a C-section, he
    would be dealing with a dead baby.


IV



were the reasons inadequate?

A.

The Applicable Legal Principles

[41]

Reasons for judgment fully and clearly explaining
    both the result and the reasons for the result serve several important
    purposes. Reasons for judgment improve the transparency, accountability and
    reliability of decision-making, thereby enhancing public confidence in the
    administration of justice:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.
    C.R. 869, at para. 5;
F.H. v. McDougall
, 2008 SCC 53, [2008] 3 S.C.R.
    41, at para. 98;
R. v. G.F.
, 2021 SCC 20,459 D.L.R. (4th) 375, at
    para. 68;
Sagl v. Chubb Insurance Company of Canada
, 2009 ONCA 388, [2009]
    I.L.R. I-4839, at paras. 95-99;
Dovbush v. Mouzitchka
, 2016 ONCA 381, 131
    O.R. (3d) 474, at paras. 20-23.

[42]

In the context of the appeal process, however, the
    focus is not on the overall quality of the reasons given at trial, or the extent
    to which those reasons serve all of the purposes outlined above. Instead, the
    focus is on whether the reasons allow the appeal court to engage in a
    meaningful review of the substantive merits of the decision under appeal. As
    Binnie J., with his usual clarity, explained in
Sheppard
,
at para. 28:

It is neither necessary nor appropriate to
    limit circumstances in which an appellate court may consider itself unable to
    exercise appellate review in a meaningful way.
The
    mandate of the appellate court is to determine the correctness of the trial
    decision, and a functional test requires that the trial judges reasons be
    sufficient for that purpose. The appeal court itself is in the best position to
    make that determination
. The threshold is clearly reached, as here,
    where the appeal court considers itself unable to determine whether the
    decision is vitiated by error. Relevant factors in this case are that (i) there
    are significant inconsistencies or conflicts in the evidence which are not
    addressed in the reasons for judgment, (ii) the confused and contradictory
    evidence relates to a key issue on the appeal, and (iii) the record does not
    otherwise explain the trial judges decision in a satisfactory manner. Other
    cases, of course, will present different factors. The simple underlying rule is
    that if, in the opinion of the appeal court, the deficiencies in the reasons
    prevent meaningful appellate review of the correctness of the decision, then an
    error of law has been committed. [Emphasis added.]

[43]

A submission that trial reasons are legally
    inadequate does not necessarily attack the sufficiency of the evidence, the
    reasonableness of the factual findings, or allege legal errors in the trial
    judges analysis. Rather, the submission that reasons are inadequate amounts to
    a claim that proper substantive review of the trial judges reasons is
    foreclosed by the inadequacy of those reasons. In other words, counsel cannot effectively
    make arguments about the sufficiency of the evidence, the reasonableness of the
    fact finding, or alleged errors in law because the reasons of the trial judge do
    not provide the window into the trial judges conclusions and reasoning process
    necessary to make those arguments.

[44]

The appellants have a statutory right of appeal
    from the dismissal of their action. If the appellants are correct and the
    reasons do not reveal the factual or legal basis for the trial judges
    conclusions, the appellants are effectively denied the exercise of their
    statutory right of appeal. That denial amounts to both an error in law and can
    result in a miscarriage of justice.

[45]

There is now a deep jurisprudence addressing the
    sufficiency of reasons as a ground of appeal. The cases repeatedly make two
    important points. First, the adequacy of reasons must be determined
    functionally. Do the reasons permit meaningful appellate review? If so, an
    argument that the reasons are inadequate fails, despite any shortcomings in the
    reasons. Second, the determination of the adequacy of the reasons is contextual.
    Context includes the issues raised at trial, the evidence adduced, and the
    arguments made before the trial judge. For example, if a review of the evidence
    and arguments indicates that a certain issue played a minor role at trial, the
    reasons of the trial judge cannot be said to be inadequate because they reflect
    the minor role assigned to the issue by the parties at trial:
Sheppard
,
    at paras. 33, 42 and 46;
R. v. Morrissey
(1995), 22 O.R. (3d) 514, at
    p. 525;
Dovbush
, at para. 23.

[46]

In
G.F.
,
the Supreme Court of Canada recently cautioned against
    appellate courts reviewing trial judges reasons with an overly critical eye,
    especially in cases turning on credibility assessments:
G.F.
,
at paras. 74-76. The majority said, at
    para. 79:

To succeed on appeal, the appellants burden
    is to demonstrate either error or the frustration of appellate review. Neither
    are demonstrated by merely pointing to ambiguous aspects of the trial decision.
Where all that can be said is a trial judge may or might
    have erred, the appellant has not discharged their burden to show actual error
    or the frustration of appellate review
. Where ambiguities in a trial
    judges reasons are open to multiple interpretations, those that are consistent
    with the presumption of correct application must be preferred over those that
    suggest error. It is only where ambiguities, in the context of the record as a
    whole, render the path taken by the trial judge unintelligible that appellate
    review is frustrated.
An appeal court must be rigorous in
    its assessment, looking to the problematic reasons in the context of the record
    as a whole and determining whether or not the trial judge erred or appellate
    review was frustrated. It is not enough to say that a trial judges reasons are
    ambiguous  the appeal court must determine the extent and significance of the
    ambiguity
. [Emphasis added.] [Citations omitted.]

[47]

The caution sounded in
G.F.
applies in
    this appeal. The position of Sabrins head when Dr. Fellows decided to proceed
    with a forceps delivery was one of the main contentious factual issues at
    trial. There was arguably a dramatic inconsistency between Dr. Fellows
    description of the position of the head in his operative note and Dr. Fellows
    testimony describing the position of Sabrins head. The appellants vigorously challenged
    Dr. Fellows credibility, claiming he fabricated evidence to avoid the
    implications of the operative note.

[48]

The trial judge clearly believed Dr. Fellows
    evidence relating to the position of Sabrins head. The appellants argue she
    did not adequately explain how she came to that conclusion. In considering that
    argument, t
his court cannot engage in its
    own assessment of Dr. Fellows credibility under the guise of
a purported
    review of the adequacy of the trial judges reasons for believing Dr. Fellows:
R.
    v. Ramos
, 2020 MBCA 111, at para. 53, affd 2021 SCC 15, 457 D.L.R. (4th)
    369.

[49]

While
G.F.
sounds a clear cautionary
    note to appellate courts considering arguments based on allegations of the inadequacy
    of trial reasons, the case does not go so far as to suggest that if reasons
    that suffer from ambiguity can possibly be read so as to remove the ambiguity
,
the reasons are legally adequate. If it is not possible to resolve the
    ambiguity by determining which of multiple possible meanings the trial judge
    actually intended, the reasons will be incapable of effective appellate review.
    Ambiguity is of course only one sort of error that can make reasons
    insufficient for the purpose of appellate review. The appellants in this appeal
    rely more on the absence of findings or explanations for the findings than they
    do on any ambiguities in the findings.

[50]

Because the adequacy of trial reasons is
    assessed functionally and depends on the ability of the appellate court to
    effectively review the correctness of the decision arrived at by the trial
    court, the appellate court is entitled to look at the record as a whole when determining
    the trial judges findings and the reasons for those findings are adequately
    laid out. For example, in reasons for judgment, the trial judge may find the
    evidence of a certain witness incredible but say very little about why that
    finding was made. However, a review by the appellate court of the testimony of
    that witness may make the reasons for the trial judges assessment crystal
    clear. In that circumstance, the appellate court can, by reference to the
    testimony, effectively review the trial judges credibility assessment. Consequently,
    the reasons do not prevent meaningful appellate review and are not legally
    inadequate:
G.F.
, at para. 70;
Maple Ridge Community Management
    Ltd. v. Peel Condominium Corporation No. 231
, 2015 ONCA 520, 389 D.L.R.
    (4th) 711, at paras. 30-32.

B.

The issues at trial

[51]

There were three broad issues to be resolved at
    trial. The trial judge set them out early in her reasons (paras. 11-13):

·

Did Dr. Fellows have the informed consent of
    Amara to proceed in the fashion in which he did? [informed consent]

·

Did Dr. Fellows fall below the reasonable
    standard of care of an obstetrician/gynaecologist? In particular, did his
    failure to immediately perform an emergency Caesarean section fall below the
    standard of care? [standard of care]

·

If Dr. Fellows was negligent, did his acts or
    omissions cause or materially contribute to the injuries suffered by Sabrin
    Farej? [causation]

[52]

Setting aside the informed consent issue, to
    succeed at trial, the appellants had to establish both causation and a breach
    of the standard of care. The trial judge found against the appellants on both
    issues. To succeed on appeal based on arguments alleging the reasons to be
    inadequate, the appellants must show the reasons are inadequate with respect to
    causation and at least one of the standard of care issues. If the causation reasons
    do allow for meaningful appellate review of the causation finding, there would
    be no reason to interfere with the trial judges finding the appellants failed
    to prove causation and the appeal would be dismissed, regardless of the
    adequacy of the reasons relating to standard of care issues. Similarly, if the
    reasons relating to the standard of care issues allow for meaningful appellate
    review, the trial judges finding there was no breach of the standard of care
    would stand, and the appeal would be dismissed even if the causation reasons
    were inadequate.

[53]

Each of the three issues raised a number of sub-issues,
    most of which turned on findings of fact. The appellants submit the trial judge
    failed to make necessary findings and failed to adequately explain those
    findings she did make. I will examine those arguments by considering the
    reasons in the following order:

·

The causation reasons;

·

The standard of care reasons; and

·

The informed consent reasons.

C.

are the reasons on causation adequate?

(i)

The Evidence

[54]

When Sabrin was born, she was suffering from
    acute near total asphyxia (oxygen deprivation) brought on by a loss of blood
    flow to her brain prior to delivery. In all likelihood, Ms. Idris uterine rupture
    precipitated Sabrins acute near total asphyxia.

[55]

Sabrins oxygen deprivation lasted for about 25
    to 30 minutes before her delivery. At some point in time during that timeframe,
    Sabrin suffered permanent brain damage as a result of the ongoing oxygen
    deprivation.

[56]

Oxygen deprivation as a result of acute asphyxia
    does not lead immediately, or inevitably, to permanent brain damage. Oxygen
    deprivation will, however, cause permanent brain damage and ultimately death if
    the deprivation goes on for a sufficiently long time period.

[57]

The experts agreed that Sabrins acute near
    total asphyxia began between 10:55 p.m., when Sabrins heart rate dropped
    precipitously, and 11:04 p.m., when the FHM showed she was bradycardic. None of
    the experts could say exactly when the acute near total asphyxia began, or when
    it first caused permanent brain damage. They all agreed the length of time
    required before permanent brain damage would occur varied and depended on a
    number of variables.

[58]

Dr. Oppenheimer, the defence expert, testified
    that the state of the babys oxygen reserves when the acute asphyxia occurred
    was one of those important variables. Sabrins heart rate had decelerated at
    various times in the hour before Dr. Fellows arrived in the delivery room. Dr.
    Oppenheimer testified that those decelerations put stress on Sabrins oxygen reserves
    and would have compromised, to some degree, her ability to withstand the acute
    near total asphyxia that occurred some time between 10:55 p.m. and 11:04 p.m. I
    do not read the evidence of the appellants experts as contradicting this
    aspect of Dr. Oppenheimers evidence.

[59]

The experts, as well as Dr. Fellows, also
    accepted that, as a general rule, the longer and more severe the oxygen
    deprivation suffered by the baby, the more extensive and severe the brain
    injuries and other consequential injuries to the baby are likely to be. The
    increase in the severity of brain damage is not, however, linear or consistent
    in the sense that it proceeds at a known or predictable rate, or results in the
    loss of certain specific brain functions in a given order or at specific points
    in time.

[60]

The experts agreed that Sabrins acute near
    total asphyxia caused the permanent brain damage which led to her many injuries
    and disabilities. They gave various estimates as to when Sabrin may have suffered
    permanent brain damage. The experts made it clear, however, that these were
    estimates and Sabrin could have suffered permanent brain damage almost at any
    stage of the asphyxia and certainly before or after the timeframes estimated by
    the experts.

[61]

Dr. Oppenheimer testified that permanent brain
    damage could occur as quickly as 10 minutes after the initial event causing the
    acute asphyxia occurred, or permanent damage could occur significantly later. It
    was Dr. Oppenheimers position that the initial event compromising Sabrins
    oxygen supply occurred as early as 10:55 p.m. and as late as 11:04 p.m. If the
    initial incident causing the acute asphyxia occurred at 11:04 p.m., Dr.
    Oppenheimer testified the permanent brain damage could have occurred by 11:14
    p.m.

[62]

Dr. Oppenheimer was asked whether Sabrins
    injuries could have been avoided or lessened had Sabrin been delivered by Caesarean
    section as soon as reasonably possible. He responded:

I think its quite unlikely that  that she
    could have been delivered more quickly and, even if she had been delivered more
    quickly, I think its unlikely her injuries could have been avoided.

[63]

Dr. Shah, the appellants expert, agreed that
    Sabrins acute near total asphyxia began some time between 10:55 p.m. and 11:04
    p.m. He also agreed that babies have a limited ability to defend against such
    events and that the defences can be compromised by a history of heart
    decelerations during the labour.

[64]

Dr. Shah testified that it was his estimate that
    Sabrins permanent brain damage occurred between 20 and 30 minutes after the
    onset of her acute near total asphyxia (10:55 p.m.  11:04 p.m.). On this
    estimate, Sabrin could have suffered permanent brain damage as early as 11:15
    p.m. Dr. Shah also testified that he would place the onset of Sabrins permanent
    brain damage nearer the time of her actual birth as had it occurred earlier and
    closer to the 20-minute mark, he did not believe Sabrin would have been born
    alive.

[65]

In cross-examination, Dr. Shah agreed that he
    could not say with any degree of confidence that Sabrin had not suffered a permanent
    brain injury within a short period of time after Dr. Fellows arrived in the
    delivery room. Similarly, he could not say with any confidence that Sabrin had
    not suffered a permanent brain injury even before Dr. Fellows first attempted
    to deliver Sabrin vaginally using forceps.

(ii)

The causation arguments at trial

[66]

There is no suggestion Dr. Fellows did anything,
    or failed to do anything, that caused Sabrins acute near total asphyxia. It
    would appear that the uterine rupture was the physical cause of her near total
    asphyxia. In legal terms, the near total asphyxia was a non-tortious cause of
    Sabrins ultimate injuries. She, in all likelihood, was suffering from acute
    oxygen deprivation before Dr. Fellows arrived in the delivery room at 11:01
    p.m.

[67]

The appellants advanced their causation argument
    at trial through a series of possible scenarios, each based on an alleged act
    of negligence by Dr. Fellows and a comparison of the time at which the
    appellants said Sabrin could have been delivered, but for Dr. Fellows
    negligence, with the time Sabrin was actually delivered. The appellants argued
    that the lost time attributable to Dr. Fellows negligence, which ranged from
    about 15 minutes on most of the scenarios to 30 seconds on one scenario, caused,
    or at least materially contributed to, the catastrophic injuries Sabrin had
    when she was born: see
Athey v. Leonati
, [1996] 3 S.C.R. 458, at
    paras. 13-16;
Donleavy v. Ultramar Ltd.
, 2019 ONCA 687, 60 C.C.L.T.
    (4th) 99, at paras. 72-73.

[68]

The respondent met the appellants causation
    arguments with the submission that the timelines advanced by the appellants
    were based on speculation and not evidence. In particular, the respondent submitted
    that the appellants contention that he could have delivered Sabrin by
    emergency Caesarean section in 8 to 10 minutes from the time he made the
    decision to do an emergency Caesarean section was unrealistic. At trial, Dr.
    Fellows testified that 8 to 10 minutes took into account only the time between
    incision and delivery and did not take into account the time needed for the necessary
    preparation prior to commencing the actual operation.

[69]

The respondent also took on the appellants argument
    that he caused Sabrins injuries on a broader front. The respondent argued that
    on the evidence, especially the evidence of the appellants expert, Dr. Shah, the
    appellants had failed to establish on the balance of probabilities that had he
    delivered Sabrin by emergency Caesarean section as soon as reasonably possible,
    her delivery at that time would have made any material difference to her
    physical condition when she was born. The respondent argued that, apart
    entirely from whether he was negligent, the appellants had failed to
    demonstrate on the balance of probabilities that anything he did or did not do
    caused or materially contributed to Sabrins injuries. If this argument carried
    the day, the appellants other arguments, save one, would necessarily fail.
[3]


(iii)

The trial judges causation reasons

[70]

The trial judge correctly identified the
    causation issue early in her reasons, at para. 13:

If Dr. Fellows was negligent, did his acts or
    omissions cause, or materially contribute to the injuries suffered by Sabrin
    Farej?

[71]

The trial judges analysis of the causation
    issue begins at para. 306. After a thorough and accurate review of the legal
    principles (paras. 307-23), the trial judge correctly identified the but for
    test as the applicable test to determine causation (para. 325).

[72]

The trial judge next reviewed some of the
    evidence relevant to causation (paras. 326-37). She had outlined the evidence
    in some detail earlier in her reasons.

[73]

After summarizing the evidence, the trial judge turned
    to the appellants arguments (paras. 338-41, 343). The trial judge rejected
    those arguments. In reference to the submission that Dr. Fellows should have
    done an immediate C-section, or performed a C-section immediately after the
    first attempt to deliver Sabrin vaginally failed, the trial judge said, at
    para. 342:

These submissions are not founded in the
    evidence. Dr. Fellows testified that he could perform an emergency c-section
    within eight to ten minutes from incision to delivery. This estimate does not
    account for delivery room preparation, patient transportation and the
    administration of anaesthesia, and there was no evidence called in that regard.

[74]

The trial judge next focused on the argument
    that, on the third attempt to deliver Sabrin, Dr. Fellows had been negligent in
    removing the forceps and allowing Ms. Idris to push Sabrin out. The appellants
    argued that by having Ms. Idris push rather than removing Sabrin with the
    forceps, Dr. Fellows added 30 seconds to the delivery, causing additional brain
    damage to Sabrin. The appellants emphasized that, by this time, Sabrin had been
    in an acute asphyxic state for up to 32 minutes. The trial judge dismissed this
    argument, at para. 344:

At its highest, this argument is grounded in
    loss of chance. As the court stated in
Laferriere
(
supra
),
    a mere loss of chance is not compensable in medical malpractice cases.

[75]

The trial judge had, earlier in her reasons, summarized
    the case law distinguishing between causation and a mere loss of chance (para.
    323).

[76]

After rejecting the appellants arguments, the
    trial judge turned to the respondents submission that the appellants had
    failed to prove on the balance of probabilities that anything Dr. Fellows did
    or failed to do was causally linked to Sabrins injuries. The trial judge
    referred to Dr. Oppenheimers evidence that he did not think it likely that a
    quicker delivery would have avoided the injuries suffered by Sabrin. The trial
    judge also referred to the evidence that permanent brain damage may have
    occurred within 10 minutes of the initial near total asphyxia. On the evidence
    of both experts, near total asphyxia may have occurred as early as 10:55 p.m. Finally,
    the trial judge referred to Dr. Fellows evidence that had he abandoned the
    forceps delivery, he would be dealing with a dead baby. The trial judge then concluded,
    at para. 348:

I can find no causal connection between Dr.
    Fellows actions and Sabrins injuries.

[77]

I read this as a finding that the appellants had
    not proved that Dr. Fellows did or failed to do anything that materially
    contributed to the injuries Sabrin had when she was born. The appellants vigorously
    argue that this simple, short, single sentence all but ended their case. They submit
    they were entitled to an explanation as to how the trial judge arrived at that
    conclusion.

(iv)

The appellants submissions

[78]

In support of their contention that the reasons do
    not explain the trial judges causation finding, the appellants submit that the
    trial judge never came to grips with the evidence about the time needed to
    perform an emergency Caesarean section. They contend the trial judge, at para.
    342, wrongly concluded there was no evidence as to the time needed to perform
    an emergency Caesarean section. The appellants point to the evidence of Dr.
    Cohen in which he opined that 8 to 10 minutes to perform an emergency Caesarean
    section was a generous estimate and included the minimal preparation time
    needed for the procedure.

[79]

The appellants submit that without coming to a conclusion
    as to the time needed to perform an emergency Caesarean section, the trial
    judge could not rationally decide whether the failure to perform an emergency
    Caesarean section caused or materially contributed to Sabrins injuries. The
    determination of whether any causal link existed between the failure to perform
    an emergency Caesarean section and Sabrins injuries could only be properly made
    after a finding of what delay, if any, occurred between the time at which Sabrin
    could have been delivered by way of emergency Caesarean section and the actual delivery
    time. If the trial judge found the failure to perform an emergency Caesarean section
    did delay Sabrins birth, she would then have had to determine whether that
    delay caused or materially contributed to the injuries Sabrin had when she was
    born.

[80]

The appellants further submit that, although the
    trial judge recognized early in her reasons that a material contribution to
    Sabrins injuries sufficed to establish causation, she ignored the material
    contribution component of the causation inquiry when considering the effect of
    any delay in the delivery of Sabrin on her catastrophic condition when she was
    born. The appellants submit the trial judges reasons on causation indicate she
    approached causation as if the injuries Sabrin had when she was born occurred
    at a specific point in time when she suffered permanent brain damage, rather
    than over a period of time after she had suffered permanent brain damage due to
    acute oxygen deprivation. The appellants contend that it cannot be determined
    from the trial judges reasons whether in finding no causal connection between Dr
    Fellows actions and Sabrins injuries, the trial judge even considered whether
    an earlier delivery by way of emergency Caesarean section would have materially
    reduced the extent of Sabrins permanent brain damage and the injuries suffered
    by her.

[81]

The appellants argue the absence of any
    reference in the reasons to the possibility that the failure to perform an
    emergency Caesarean section may have materially reduced Sabrins injuries, even
    if it did not entirely eliminate the brain damage caused by the near total
    asphyxia, is especially important given the nature of the evidence adduced in this
    case. The experts and Dr. Fellows agreed that time was of the essence and
    minutes counted, both in respect of the likelihood of permanent brain damage
    and the potential severity of that damage. The appellants ask rhetorically what
    did the trial judge make of the consensus opinion that the longer Sabrin
    suffered oxygen deprivation, the more probable permanent brain damage and the more
    severe that permanent brain damage was likely to be? The appellants submit the
    reasons provide no answer to this fundamental question.

(v)

The respondents submission

[82]

The respondent replies that the reasons of the
    trial judge reveal a full command of the evidence and the legal principles
    applicable to causation, including the recognition that causation extends to
    factors which materially contribute to the injury.

[83]

The respondent urges the court in assessing the
    adequacy of the causation reasons to consider those reasons in the context of
    the evidence relating to causation. The respondent maintains that the evidence,
    especially the evidence of the appellants expert, Dr. Shah, offers no support
    for the conclusion that Dr. Fellows did anything that caused Sabrins injuries.
    The respondent submits that, on the evidence, no one could say that Sabrin was
    not permanently brain damaged before Dr. Fellows was in the delivery room, and
    no one could say what effect any delay in the delivery had on the extent of the
    injuries actually suffered by Sabrin. Nor could any of the experts indicate
    that had Sabrin been delivered before a specific point in time she would not have
    suffered the same kind of injuries she ultimately suffered. The respondent
    emphasizes that the appellants had the burden of proof on causation. Evidence that
    Dr. Fellows may or may not have caused or materially contributed to Sabrins
    injuries would not suffice to meet that burden.

(vi)

Analysis

[84]

I agree with the thrust of the appellants
    submissions on the causation issue. The reasons tell us that the trial judge decided
    that nothing Dr. Fellows did caused the injuries. Unfortunately, the reasons do
    not tell us how the trial judge arrived at her conclusion, or whether in doing
    so she addressed not only causation in the narrowest sense, but also causation
    by way of a material contribution to the injuries actually suffered by Sabrin:
Dunleavy
    v. Ultramar Ltd.
, at paras. 72-73.

[85]

To decide whether Dr. Fellows decision to
    proceed with a vaginal birth rather than an emergency C-section caused, or
    materially contributed to, Sabrins injuries, the trial judge had to make three
    factual findings:

·

When would Sabrin have been delivered had Dr.
    Fellows elected to proceed with an emergency C-section at 11:05 p.m.?

·

What delay occurred as a result of Dr. Fellows
    decision to proceed with a vaginal delivery rather than an emergency Caesarean
    section? This calculation required a comparison of the time of the delivery had
    a C-section been done and the actual time of delivery.

·

Did the delay, as quantified at step 2, cause or
    materially contribute to the injuries Sabrin had when she was born?

[86]

If the trial judge found the delay did cause or
    materially contributed to Sabrins injuries, she would have had to go on and
    determine whether that delay was the product of Dr. Fellows negligence, that
    is did his decision not to perform an emergency Caesarean section fall below
    the applicable standard of care?

[87]

The evidence indicates that Dr. Fellows was in
    the position to determine the appropriate mode of delivery at 11:05 p.m. By
    that time, he had assessed the patient and artificially ruptured the membranes.
    He fully appreciated the urgency of the situation, believed that Ms. Idris had
    suffered a placental abruption, but also realized that a uterine rupture was a
    possibility.

[88]

There was conflicting evidence about how long it
    would take Dr. Fellows to deliver Sabrin by Caesarean section had he decided to
    follow that course of action. On Dr. Cohens evidence, 8 to 10 minutes from
    decision to delivery was a generous estimate and, in many cases, the delivery
    could be completed in less time. Dr. Cohen explained there was virtually no
    preparation involved in an emergency Caesarean section once the patient was in
    the operating room and anesthetized. The operating room was directly across
    from the delivery room, and there was an anesthetist available.

[89]

Dr. Fellows indicated in his discovery that it
    would take 8 to 10 minutes to complete an emergency Caesarean section. He later
    explained at trial that 8 to 10 minutes referred to the time needed from
    incision to delivery and did not include preparation time.

[90]

In extracts from his discovery read in at trial,
    Dr. Fellows indicated that a normal emergency Caesarean section took 15, 20
    minutes. When asked to deal with this case, Dr. Fellows stated that if Ms.
    Idris was properly anaesthetized, an emergency Caesarean section could be done
    within 8 to 10 minutes.

[91]

The trial judge did not refer to the evidence
    given by Dr. Fellows on his discovery. She also made no finding as to how long
    the necessary preparation would take. In her reasons (para. 342), she wrongly
    indicated there was no evidence called on that issue. In fact, as summarized
    above, Dr. Cohen had testified the preparation time would be very brief.

[92]

Dr. Oppenheimer agreed with Dr. Fellows
    evidence that the 8 to 10-minute estimate did not include preparation time. As
    I read his evidence, he offered no opinion as to the length of that preparation
    time and no opinion as to the time needed to complete a Caesarean section in
    the circumstances faced by Dr. Fellows.

[93]

There was also evidence that Ms. Idris first
    son was born by way of emergency Caesarean section at the same hospital. That
    procedure took seven minutes from administration of the anaesthesia to completion
    of the procedure. The circumstances, however, at the time of the birth of Ms.
    Idris first child were very different than those faced by Dr. Fellows.

[94]

On my review of the reasons, the trial judge
    accepted Dr. Fellows evidence that the estimate of 8 to 10 minutes to conduct
    an emergency Caesarean section did not include preparation time. The trial
    judge made no findings beyond that.

[95]

This was no minor factual matter. I agree with
    the appellants that without arriving at a time, or at least a timeframe, within
    which the emergency Caesarean section could have been completed, the finding of
    no causal connection between Dr. Fellows actions and the injuries is
    unintelligible. This is particularly true bearing in mind that causation is
    established if the delay brought about by the failure to perform the immediate Caesarean
    section materially contributed to Sabrins ultimate injuries.

[96]

In light of the evidence that Sabrins permanent
    brain damage occurred over a period of time during which she was acutely oxygen
    deprived, and that the damage worsened the longer the deprivation lasted, it
    was critical to the causation inquiry that the trial judge decide when Sabrin
    could have been delivered by emergency Caesarean section. Without a finding of
    at least a timeframe within which the Caesarean section could have been
    completed, there could be no finding as to how long, if at all, Sabrin was
    oxygen deprived as a consequence of the failure to deliver her by way of
    emergency Caesarean section. Without that finding, there could be no meaningful
    inquiry into whether the delay, if any, caused or materially contributed to
    Sabrins injuries.

[97]

There are avenues through the evidence which, if
    followed by the trial judge, could reasonably have led her to conclude that
    even if an emergency Caesarean section had been performed, Sabrin would not
    have been delivered sufficiently prior to 11:27 p.m. to make any material difference
    to the outcome. Nothing in the reasons, however, allows me to conclude the
    trial judge followed one of those roads.

D.

are the reasons on the standard of care issues
    adequate?

[98]

The trial judge correctly identified the
    applicable standard of care (paras. 230-38)  did Dr. Fellows exercise the
    degree of skill and knowledge expected of an average competent obstetrician in
    the circumstances:
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674, at para. 46.
    The trial judge approached the standard of care issues by asking herself three
    questions:

·

Did Dr. Fellows fall below a reasonable standard
    of care in failing to document any discussion with Ms. Idris, including
    benefits, risks and options?

·

Did Dr. Fellows fall below a reasonable standard
    of care in failing to recognize Ms. Idris uterine rupture?

·

Did Dr. Fellows fall below a reasonable standard
    of care in performing a forceps delivery when Sabrin was station -1?

(1)

Did the trial judge ask herself the wrong
    question?

[99]

This submission focuses on the second of the
    three questions posed by the trial judge. The appellants submit that, while Dr.
    Fellows failure to diagnose a uterine rupture had some relevance to the
    standard of care issues, none of the appellants arguments depended on a
    finding that Dr. Fellows was negligent in failing to recognize Ms. Idris
    uterine rupture.

[100]

At trial, the appellants argued the applicable standard of care
    required Dr. Fellows to perform an immediate Caesarian section if a uterine
    rupture was on his differential diagnosis, even if he believed a placental
    abruption was the more likely cause of Sabrins distress and the bleeding.

[101]

A differential diagnosis recognizes various possible causes of a
    given medical problem. A uterine rupture, and a placental abruption, can
    generate many of the same symptoms. Both were on Dr. Fellows differential
    diagnosis from the outset. After his initial assessment of Ms. Idris, Dr.
    Fellows believed that a placental abruption was the more likely diagnosis, but
    a uterine rupture remained on his differential diagnosis.

[102]

The appellants contend that, under the applicable standard of care,
    Dr. Fellows was required to first address the most serious condition on his
    differential diagnosis. A uterine rupture is a more serious diagnosis than a
    placental abruption. A uterine rupture puts the life of both the mother and the
    baby at very real risk. The appellants submit an immediate Caesarean section
    was the only way to properly address the risks posed by a uterine rupture.

[103]

The appellants submit that, despite the centrality of the
    appellants submission that a differential diagnosis, including a uterine
    rupture, requires an immediate Caesarean section, the trial judge ignored Dr.
    Fellows acknowledgement that a uterine rupture was on his differential
    diagnosis, and instead focused on the reasonableness of Dr. Fellows diagnosis
    of a placental abruption as the more likely cause of Sabrins bradycardia. The
    appellants argue that the trial judges ultimate determination that Dr.
    Fellows diagnosis of a placental abruption was reasonable, at para. 277, did
    nothing to resolve the crucial question of whether the applicable standard of
    care required him to proceed immediately with an emergency Caesarean section.

(i)

The evidence on whether Dr. Fellows was required
    to proceed with an immediate Caesarean section

[104]

Dr. Cohen, the appellants expert, testified:

He should have been suspicious of uterine
    rupture, and unless the fetus is able to be readily delivered, meaning at the perineum,
    or basically crowning, he should have proceeded to laparotomy [Caesarean
    section].

[105]

Dr. Cohen indicated that in the face of a possible uterine rupture,
    both the mother and baby were in jeopardy. Dr. Fellows had to expedite
    delivery. In Dr. Cohens opinion, in the circumstances faced by Dr. Fellows,
    an emergency Caesarean section was the only way to adequately expedite
    delivery.

[106]

In advancing his opinion, Dr. Cohen relied on guidelines prepared by
    the Society of Obstetricians and Gynecologists (SOGC) and, in particular,
    recommendation No. 7:

Suspected uterine rupture requires urgent
    attention and expedited laparotomy to attempt to decrease maternal and
    perinatal morbidity and mortality.

[107]

Dr. Fellows acknowledged that a uterine rupture was a possible
    diagnosis. In his view, regardless of the cause of the problem, it was
    imperative that Sabrin be delivered as quickly and safely as possible both for
    her wellbeing and her mothers wellbeing. Delivering Sabrin as quickly as
    possible was essential, given her acute fetal distress. A quick delivery of
    Sabrin would also allow Dr. Fellows to examine Ms. Idris uterus and conduct
    any needed repairs. Those repairs could not be performed until Sabrin was
    delivered.

[108]

The SOGC guidelines were put to Dr. Fellows. He testified he did not
    treat the guidelines as rules, but as aides to the exercise of his clinical
    judgment. That clinical judgment had to be made depending on the exact
    circumstances in any specific case.

[109]

Dr. Oppenheimer agreed with Dr. Fellows approach. In his opinion,
    if, on a clinical assessment, a vaginal delivery was appropriate, the
    possibility of a uterine rupture did not dictate that a Caesarean section was
    the only appropriate mode of delivery. The essence of Dr. Oppenheimers
    evidence is set out below:

There are any [m]any causes, of course, of
    fetal distress but in this scenario the causes were concerned about are
    potentially  abruption or uterine rupture, those are the two, and you can
    perform a forceps delivery, it doesnt matter what you consider the underlying
    etiology, if the patient meets your, you know, prerequisites and you feel you are
    going to succeed you can go ahead and do a forceps. The indication is not an
    issue.



[I]n every case where you come in the room and
    you have pain, bleeding and severe fetal distress, the differential diagnosis
    is always abruption versus rupture and you do not always assume that its 
    that its rupture because if its abruption then  well it doesnt matter.
    Either way, the action is the same, urgent delivery. So, it doesnt matter
    which one youre prioritizing in what we discussed before in the differential,
    urgent delivery is the treatment of both.

[110]

As I read the evidence of the experts and Dr. Fellows, the primary
    concern had to be to deliver Sabrin as quickly as safely possible. Delivering
    Sabrin would not only address her ongoing oxygen deprivation, but would also
    allow the doctor to locate and fix any uterine rupture Ms. Idris may have
    suffered.

[111]

The experts differed on one essential point. In Dr. Cohens view, an
    urgent delivery meant a delivery by way of emergency Caesarean section, except
    in those cases where it was obvious from the positioning of the baby that it
    could be delivered immediately vaginally. On the view of Dr. Fellows and Dr.
    Oppenheimer, the question of how best to deliver the baby quickly and safely
    involved a greater element of clinical judgment and an assessment of various
    factors. In Dr. Oppenheimers opinion, Dr. Fellows exercised that judgment
    appropriately when he decided to proceed with a vaginal delivery.

(ii)

Analysis

[112]

I agree with the appellants submission that the reasonableness of
    Dr. Fellows diagnosis of a placental abruption was not determinative of
    whether Dr. Fellows was negligent in failing to conduct an immediate Caesarean
    section. The trial judges analysis of the reasonableness of Dr. Fellows
    diagnosis of placental abruption (paras. 268-79) provides no answer to the
    claim that he was negligent in failing to perform an emergency Caesarean
    section once a uterine rupture was on his differential diagnosis. Although the
    trial judge, at para. 12, properly identified the issue as being whether Dr.
    Fellows fell below the standard when he failed to perform an immediate
    Caesarean section, her ultimate analysis, to the extent it focused on whether the
    failure to diagnose a uterine rupture was negligent, misapprehended the case
    advanced by the appellants.

[113]

This misstep by the trial judge in her reasons does not, however,
    mean the reasons are inadequate. The reasons must be considered as a whole.
    Reasons may address issues that do not have to be addressed, or reasons may
    mischaracterize issues. What is important in an inquiry into the adequacy of
    the reasons is not necessarily the shortcomings of the reasons, but whether
    they ultimately explain the basis for the decisions which had to be made to
    render the judgment in question. Effective appellate review may involve more
    work with some judgments than others. As long as the review can be conducted,
    the reasons are adequate.

[114]

Looking at the reasons as a whole, it is clear the trial judge
    reviewed the evidence of Dr. Fellows concerning his decision to proceed with a
    vaginal delivery in some detail when she was outlining the evidence of various
    witnesses: at paras. 90-111, 143, 165, 171-84. The trial judge also thoroughly
    reviewed the experts evidence and the differing opinions as to whether the applicable
    standard of care required an immediate emergency Caesarean section. The trial
    judge specifically accepted Dr. Oppenheimers evidence to the effect that a
    forceps delivery was clearly the best choice (paras. 294-95). She also
    accepted, at para. 298, his evidence of the interpretation of the relevant
    guidelines as not precluding a forceps delivery in the circumstances faced by
    Dr. Fellows.

[115]

The reasons of the trial judge reveal an appreciation of the
    conflicting evidence on the issue of whether Dr. Fellows should have proceeded
    with an emergency Caesarean section. The reasons demonstrate that the trial
    judge resolved the conflicting evidence by preferring the evidence of Dr.
    Oppenheimer over Dr. Cohens evidence. The trial judge preferred the approach
    which placed more emphasis on individual clinical judgments over Dr. Cohens
    approach, which favoured more of a bright line rule when a uterine rupture was
    on the differential diagnosis. The trial judges clear command of the content
    of the evidence given by the experts and Dr. Fellows supports the conclusion
    that she preferred Dr. Oppenheimers opinion after a critical assessment of the
    evidence offered by both experts for and against their respective positions.
    The trial judge appreciated the substance of the evidence given by the experts,
    the points of contention between them, and ultimately determined she preferred
    Dr. Oppenheimers evidence on this point.

[116]

The clarity of the trial judges reasons may have been enhanced had
    she dealt with the question of whether an immediate emergency Caesarean section
    was Dr. Fellows only option under its own specific heading. Formatting
    deficiencies will, however, seldom render reasons unintelligible. The reasons
    for the trial judges finding that Dr. Fellows was not negligent in proceeding
    with a vaginal forceps delivery reveal both what the trial judge decided and
    why she rendered that decision. The reasons permit meaningful appellate review.

(2)

Did the trial judge fail to engage with and
    decide Dr. Fellows credibility in respect of his evidence that Sabrins head
    was engaged when he attempted the forceps delivery?

[117]

The position of Sabrins head when Dr. Fellows elected to proceed
    with a vaginal delivery using forceps was a crucial factual issue at trial. If
    her head was not engaged, meaning it was above Ms. Idris pelvic bone, Dr.
    Fellows and the experts agreed that a forceps delivery should not be attempted.

(i)

The evidence on the location of Sabrins head

[118]

In his operative note prepared shortly after the delivery, Dr. Fellows
    referred to Sabrins head as being at station -1 when he conducted his vaginal
    exam. Dr. Fellows made no mention of whether the head was engaged.

[119]

Dr. Cohen testified that a reference to the babys head being at
    station -1 meant that the head was above the pelvic bone and, therefore, not
    engaged. To be engaged, the head had to be at station 0 or lower (station +1).
    Dr. Cohen referred to various texts in support of his definition of engaged.

[120]

Dr. Cohen was asked about Dr. Fellows evidence on his discovery to
    the effect that Sabrins head was engaged at station -1. Dr. Cohen replied
    that as a trained experienced obstetrician, Dr. Fellows would know that if the
    head was at station -1, it could not be engaged.

[121]

The appellants submitted that Dr. Fellows operative note accurately
    described the position of Sabrins head when Dr. Fellows attempted a forceps
    delivery. That position effectively ruled out the use of forceps and, therefore,
    by necessary implication, a vaginal delivery.

[122]

Dr. Fellows acknowledged that when he initially did his vaginal
    examination, Sabrins head was just above spines, meaning the head was not
    engaged. Dr. Fellows indicated that when he ruptured the membranes, the head
    descended slightly. By the time he completed the pelvic exam, Sabrins head was
    engaged and remained so. Dr. Fellows agreed that his operative note made no
    reference to the head being engaged and that he did not amend the document at
    any time.

[123]

Dr. Oppenheimer testified that Sabrins head may have descended from
    station -1 before Dr. Fellows applied the forceps. The descent may have been
    caused by the rupture of the membranes, or Ms. Idris pushing. Contrary to Dr.
    Cohen, Dr. Oppenheimer indicated that a designation of the head as being at
    station -1 was not necessarily incompatible with the observation that the head
    was below the pelvic bone and, therefore, engaged.

(ii)

Analysis

[124]

The trial judge ultimately accepted Dr. Fellows evidence that he
    could see that Sabrins head was engaged before he used the forceps. The trial
    judge accepted this evidence for two reasons. First, Dr. Fellows indicated the
    rupture of the membranes caused the head to descend (para. 301). Second, Dr.
    Fellows, who was by all accounts an experienced and skilled obstetrician,
    testified as to what he saw, and in particular, the location of Sabrins head.
    He knew the significance of the location of the head when considering whether
    to attempt a forceps aided delivery (para. 304).

[125]

The trial judge reviewed the relevant evidence at length. It was
    open to her to accept Dr. Fellows evidence. She did not misapprehend any of
    the evidence relevant to this point. The two reasons she gave for accepting Dr.
    Fellows evidence offer an intelligible explanation for her conclusion.

[126]

Dr. Fellows evidence that Sabrins head moved slightly downward after
    he ruptured the membranes was supported, to some extent, by evidence from the
    experts, including Dr. Cohen, who agreed that a rupture of the membranes could
    cause the babys head to move downward.

[127]

I am satisfied that, the trial judge did not take an improper
    approach in her assessment of Dr. Fellows evidence by taking into account his
    acknowledged experience and expertise. The trial judge found it unlikely that a
    person of Dr. Fellows experience and expertise would, be mistaken in his
    observation of the location of Sabrins head, a crucial consideration in
    determining how best to deliver Sabrin. The trial judge, for the same reason,
    found it implausible that Dr. Fellows would proceed with a vaginal delivery
    using forceps unless he was satisfied the head was engaged, a prerequisite to
    proceeding with a vaginal delivery.

[128]

The trial judge did not engage in circular reasoning, but simply
    took into account Dr. Fellows experience and expertise when considering the
    credibility and reliability of his evidence as to what he saw when he examined
    Ms. Idris in preparation for the delivery of Sabrin.

[129]

The appellants, as they did at trial, argue that Dr. Fellows
    tailored his evidence about the location of Sabrins head to coincide with
    certain suggestions found in Dr. Oppenheimers report. They contend Dr. Fellows
    first testified that Sabrins head moved downward after his initial examination
    after Dr. Fellows had read Dr. Oppenheimers report in which he offered that
    possible explanation. The appellants submit the trial judge failed to consider
    this argument.

[130]

Dr. Fellows did refer to Sabrins head as being engaged in his
    discovery evidence, although he coupled that reference with an indication it
    was at station -1. It does not appear that Dr. Fellows was asked questions on
    discovery about the position of Sabrins head or any movement of her head after
    his initial assessment.

[131]

Certainly, it was open to the appellants to argue that Dr. Fellows
    trial evidence as to the positioning of Sabrins head was coloured by his
    reading of Dr. Oppenheimers report. The appellants made that argument at trial
    and I have no doubt the trial judge considered it. Her failure to address the
    argument specifically in her reasons does not undermine the explanation she
    gave for accepting Dr. Fellows evidence as to the position of Sabrins head.
    Trial judges are not required to answer every argument made by counsel at
    trial, particularly an argument predicated in part on the submission that the
    trial judge should draw an adverse inference with respect to credibility
    because a party failed to volunteer information on discovery. The reasons admit
    of meaningful appellate review.

(3)

Did the trial judge fail to explain why she rejected
    the appellants submission that Dr. Fellows should have done an emergency
    Caesarean section after the first attempt to deliver with forceps failed?

(i) The
    appellants argument

[132]

The first attempt to deliver Sabrin with forceps failed at about
    11:07 p.m. The appellants submitted that as of 11:07 p.m., Dr. Fellows had two
    new additional factors to take into account when deciding how to proceed.
    First, the gush of blood and the immediate retreat of Sabrins head gave Dr.
    Fellows even more reason to suspect Ms. Idris had suffered a uterine rupture.
    Second, under the SOGC guidelines, the failure to successfully deliver a baby
    using one technique was itself a reason to consider using a different approach.

[133]

The appellants submit that these two new considerations should have
    led Dr. Fellows to change the mode of delivery from a vaginal delivery with
    forceps to an emergency Caesarean section. His failure to do so cost valuable
    time and caused or materially contributed to Sabrins injuries.

[134]

The appellants acknowledge that the trial judge rejected this
    argument. She said, at para. 304:

Given the exigent circumstances and what was
    known at the time, Dr. Fellows acted reasonably in pursuing an operative
    vaginal delivery with forceps. Once he made that decision it was imperative
    that he follow through. Failure to do so, in all likelihood, would have
    resulted in the death of the baby.

[135]

The appellants submit that the trial judges reasons offer no
    explanation for her conclusion that Sabrin would likely have died had Dr.
    Fellows decided to perform an emergency Caesarean section at about 11:07 p.m.
    The appellants also submit the reasons offer no explanation for the trial
    judges conclusion that it was imperative that Dr. Fellows follow through
    with a vaginal delivery, despite the change in the relevant circumstances.

(ii) Analysis

[136]

There is merit to the appellants submission. The trial judges
    reasons shed no light on how the trial judge came to her conclusion that Sabrin
    would in all likelihood have been dead before she was born had Dr. Fellows ordered
    an emergency Caesarean section at 11:07 p.m. Certainly, Dr. Fellows gave that
    evidence. However, Dr. Fellows offered no evidence as to when he could have
    completed a Caesarean section had he decided at 11:07 p.m. to abandon the
    vaginal delivery in favour of an immediate emergency Caesarean section.
[4]

[137]

It may be that Dr. Fellows concluded that as Sabrin was born alive
    at 11:27 p.m., she would have been delivered some time after 11:27 p.m. had he decided
    to perform a Caesarean section at or about 11:07 p.m. Unfortunately, Dr.
    Fellows did not explain in his evidence why he believed Sabrin would not have
    survived the birth had he proceeded with a Caesarean section. Nor does the
    trial judge explain how she came to accept Dr. Fellows evidence that Sabrin
    would not have survived had he proceeded with a Caesarean section when he gave
    no evidence as to when he believed she could have been delivered had he decided
    to proceed with a Caesarean section.

[138]

Despite the shortcomings described above, the trial judges reasons
    on this issue can be effectively reviewed in this court. As outlined above, the
    trial judge accepted the defence evidence that, regardless of the medical cause
    of the problem faced by Dr. Fellows, Sabrins delivery as quickly as it could
    be safely done had to be the priority, both from Sabrins perspective, and from
    Ms. Idris perspective. Because the trial judge accepted the defence evidence
    that the need to deliver Sabrin as quickly as possible remained the primary
    concern regardless of the cause of the problem, Dr. Fellows added suspicion of
    a uterine rupture after the blood gush during the first failed attempt to
    deliver Sabrin would not have caused him to rethink the appropriate mode of delivery.
    The speed with which he could deliver Sabrin safely remained the primary
    concern.

[139]

There was also nothing in the failed attempt to deliver Sabrin which
    would have suggested to Dr. Fellows that a further attempt to deliver with
    forceps would delay Sabrins birth beyond the time needed to effect the
    delivery by way of emergency Caesarean section. Dr. Fellows had moved Sabrin to
    crowning position within about one minute of the application of the forceps.
    Sabrins size presented no impediment to a vaginal delivery. It was reasonable
    for Dr. Fellows to conclude he could reapply the forceps, this time using a
    kind of forceps that would avoid releasing the head, and deliver the baby
    immediately.

[140]

A fair reading of the reasons as a whole demonstrates that the trial
    judge rejected the argument that Dr. Fellows was negligent in not going to a
    Caesarean section after the first attempt to deliver with forceps failed for
    essentially the same reasons that he was not negligent in his initial decision
    to deliver vaginally with forceps. The two decisions were made within a minute
    or two of each other. In both instances, Dr. Fellows made a clinical judgment
    that it was essential to deliver Sabrin as quickly as it could be safely done.
    In both instances, he decided a vaginal delivery provided the most expeditious
    route. Dr. Oppenheimer agreed with the reasonableness of that assessment. The
    trial judge accepted Dr. Oppenheimers opinion.

(4)

Did the trial judge fail to consider whether Dr.
    Fellows was negligent when he failed to deliver Sabrin using the Kielland
    forceps?

(i) The evidence

[141]

After his initial attempt to deliver Sabrin with the Tucker-McLean
    forceps failed, Dr. Fellows made a second attempt using Kielland forceps. He
    believed that the shape of those forceps would allow him to deliver Sabrin
    without removing the forceps or relieving the traction. Sabrin had retreated
    back up the birth canal when Dr. Fellows had removed the forceps on his first
    attempt to deliver Sabrin.

[142]

Dr. Fellows brought Sabrin to the crowning position using the
    Kielland forceps. He was confident he could deliver the baby quickly with those
    forceps.

[143]

Dr. Fellows, however, became concerned that if he used the Kielland
    forceps to complete the delivery, those forceps, because of their shape, would
    destroy or damage Ms. Idris perineum. Dr. Fellows decided to release the
    Kielland forceps and have Ms. Idris push Sabrin out. This same strategy had
    failed only a few minutes earlier on Dr. Fellows first attempt to deliver
    Sabrin. Releasing the Kielland forceps also nullified the very reason Dr.
    Fellows had decided to use the Kielland forceps rather than the Tucker-McLean
    forceps. When Dr. Fellows released the forceps, Sabrin moved back up the birth canal
    just as she had moments earlier when Dr. Fellows released the Tucker-McLean
    forceps in his first attempt to deliver Sabrin.

[144]

Dr. Fellows decided to use the Kielland forceps to deliver Sabrin at
    about 11:07 p.m. His attempt to deliver her with those forceps had failed by about
    11:12 p.m. This led to the third effort to deliver Sabrin vaginally. That
    attempt eventually succeeded at 11:27 p.m.

[145]

Dr. Cohen testified that the removal of the Kielland forceps when
    Sabrin was crowning and ready to be delivered was a breach of the applicable
    standard of care. He said:

[I]f one is assuming that the fetal heart rate
    is extremely low, or non-existent, you want to expedite delivery, so you want
    to get that baby out in the quickest fashion possible, or the most timely fashion
    possible. So, the extraction with the forceps should have been done in my
    opinion.

[146]

Dr. Oppenheimer did not comment on Dr. Fellows release of the
    Kielland forceps in his report. In his testimony, he indicated the removal of
    the Kielland forceps was common practice done to avoid trauma to the
    perineum.

[147]

Dr. Oppenheimer was not asked to consider Dr. Fellows decision to
    remove the Kielland forceps in the context of the circumstances of this case.
    Specifically, Dr. Oppenheimer was not asked whether Sabrins prolonged acute near
    total asphyxia placed this case outside of the realm of common practice.

(ii) Appellants
    position

[148]

At trial, the appellants alleged Dr. Fellows was negligent in
    releasing the Kielland forceps rather than delivering Sabrin immediately with
    those forceps. They claimed he should have appreciated the need to urgently
    deliver Sabrin and the risk that she would once again retreat up the birth canal
    if the forceps were removed. In support of their position, the appellants
    relied on the following:

·

Ms. Idris had been unable to push Sabrin out a
    few minutes earlier;

·

Dr. Fellows was more suspicious of a uterine
    rupture after the first failed attempt to deliver Sabrin with forceps;

·

Sabrin had been acutely oxygen deprived for at
    least eight minutes and, according to Dr. Fellows, probably longer by the time
    Dr. Fellows elected to remove the Kielland forceps;

·

Given Sabrins position in the vagina
    immediately before Dr. Fellows released the forceps, and Dr. Fellows
    expertise, he could, in all likelihood, have delivered Sabrin immediately had
    he kept the Kielland forceps in place and used them for the delivery;

·

Dr. Fellows had elected to release the forceps
    on his first attempt to deliver Sabrin. She had retreated up the birth canal
    when he did so. Despite this, he released the Kielland forceps only a few
    minutes later, only to have Sabrin retreat up the birth canal for a second
    time; and

·

Neither Dr. Fellows nor Dr. Oppenheimer offered an
    opinion as to why the preservation of the perineum justified potentially
    delaying Sabrins birth, given her near total ongoing acute oxygen deprivation.
    In fact, Dr. Fellows cut the perineum when he performed an episiotomy a few
    minutes later during the third and successful attempt to deliver Sabrin.

[149]

The appellants timeline as it relates to this argument is clear and
    simple. With the Kielland forceps, Sabrin could have been delivered at or very
    shortly after 11:12 p.m. She was actually delivered at 11:27 p.m. The 15-minute
    delay in delivering Sabrin is attributable to Dr. Fellows negligent failure to
    complete the delivery with the Kielland forceps.

(iii)

Analysis

[150]

Although the trial judge acknowledged, at para. 280, that the
    appellants had argued Dr. Fellows should have completed the delivery with the
    Kielland forceps, she never addressed the merits of that argument. Apart from a
    brief reference to Dr. Oppenheimers evidence that the release of a forceps was
    common practice, the trial judge made no reference to any of the evidence relevant
    to this issue.

[151]

The trial judges silence in respect of the allegation of negligence
    based on the failure to deliver Sabrin with the Kielland forceps cannot be
    answered by reference to her analysis of whether Dr. Fellows was obliged to
    conduct an emergency Caesarean section immediately, or whether the position of
    Sabrins head precluded a forceps delivery.

[152]

The argument that Dr. Fellows was negligent in not completing the
    delivery with the Kielland forceps did not depend in any way on whether he
    should have conducted an emergency Caesarean section immediately. Nor did it
    turn on when an emergency Caesarean section could have been completed. The
    resolution of those issues in favour of the respondent was no answer to the
    allegation of negligence based on the failure to deliver with the Kielland
    forceps.

[153]

Similarly, the trial judges conclusion that Sabrins head was
    engaged when Dr. Fellows decided to deliver Sabrin was of no consequence in
    deciding whether Dr. Fellows was negligent when he did not complete the
    delivery with the Kielland forceps. There was no doubt that Sabrins head was
    fully engaged and she was capable of being delivered with forceps when Dr.
    Fellows released the Kielland forceps.

[154]

The central findings by the trial judge, which foreclosed a finding
    of negligence on the main arguments advanced by the appellants at trial, had no
    application to the allegation that Dr. Fellows was negligent when he withdrew
    the Kielland forceps. This allegation stood on an entirely different
    evidentiary footing. It was essential that the trial judge address this
    allegation separately and explain why she rejected it.

[155]

There was evidence supporting the appellants position that Dr.
    Fellows acted negligently in failing to complete the delivery with the Kielland
    forceps. There was also evidence that his failure to do so caused a significant
    delay in the delivery of Sabrin. On the causation evidence, it would have been
    open to the trial judge to infer that the delay resulting from the failure to
    complete the delivery with the Kielland forceps (about 15 minutes) caused or
    materially contributed to Sabrins catastrophic injuries.

[156]

My review of the reasons leaves me uncertain as to whether the trial
    judge gave any separate consideration to the argument that the failure to
    complete the delivery with the Kielland forceps constituted negligence and, if
    so, whether it caused or materially contributed to Sabrins injuries. Even if I
    were to assume, in light of the arguments put to the trial judge, that she must
    have considered and rejected the argument that the failure to complete the
    delivery with the Kielland forceps was negligent, I see no analysis of the
    appellants submissions and no explanation in the reasons for the rejection of
    the appellants arguments on this issue.

[157]

The absence of any analysis makes it impossible to determine why the
    trial judge rejected the claim that Dr. Fellows was negligent in not completing
    the delivery with the Kielland forceps. The trial judge refers to Dr.
    Oppenheimers evidence that releasing the forceps was common practice. She
    refers to no other evidence and no basis upon which she could conclude that Dr.
    Oppenheimers reference to common practice had application to the
    circumstances as they existed when Dr. Fellows decided to release the Kielland
    forceps. This court does not know what the trial judge made of Dr.
    Oppenheimers description of releasing the forceps as common practice. In the
    same vein, the reasons offer no insight into why avoiding damage to the
    perineum justified any risk of additional delay in Sabrins delivery. By that stage,
    Sabrin had been suffering from acute near total asphyxia for at least eight
    minutes.

[158]

The reasons as they relate to the allegation that Dr. Fellows should
    have delivered Sabrin with the Kielland forceps are inadequate and do not admit
    of appellate review. The appellants allegation is tenable on the evidence and
    provides a basis upon which Dr. Fellows could be found to have caused Sabrins
    injuries.

E.

the reasons on the informed consent issue

[159]

At trial, the appellants argument in relation to informed consent
    focused on Dr. Fellows admitted failure to obtain Ms. Idris express consent
    to the use of forceps during the delivery. On appeal, the appellants argue the
    trial judge never addressed the issue of informed consent, but only considered
    whether Dr. Fellows had documented his conversations with Ms. Idris. The
    appellants refer to the question posed by the trial judge in her reasons:

Did Dr. Fellows fall below a reasonable
    standard of care in failing to document any discussion with Ms. Idris,
    including benefits, risks and options?

[160]

Dr. Fellows conceded that he did not document any of his discussions
    with Ms. Idris or Mr. Farej after he arrived in the delivery room at 11:01 p.m.
    Dr. Fellows did, however, testify to discussions he had with Ms. Idris and Mr.
    Farej after he arrived in the delivery room.

[161]

The appellants submit the trial judge miscast their informed consent
    argument as turning exclusively on the failure to document any discussions that
    may have occurred. The appellants acknowledge they placed significant
    evidentiary weight on the failure to document. However, they maintain the trial
    judge ultimately had to decide what in fact Dr. Fellows said to Ms. Idris and
    whether, in the circumstances, Ms. Idris gave her informed consent to the
    forceps delivery.

(i) The evidence

[162]

Dr. Fellows testified that as he was examining Ms. Idris, he was in
    constant verbal and visual contact with Ms. Idris and Mr. Farej. He told them
    their baby was in serious distress and that she should be delivered as quickly
    as possible. He told Ms. Idris and Mr. Farej that he believed that the safest
    way to proceed was not by Caesarean section, but by a forceps delivery.

[163]

In cross-examination, Dr. Fellows indicated he was speaking to both
    Mr. Farej and Ms. Idris during the time he was rupturing the membranes. He told
    them he could proceed using forceps or a Caesarean section and, in his clinical
    judgment, a forceps delivery was the most appropriate procedure.
[5]
Dr. Fellows testified he was
    speaking to both Mr. Farej and Ms. Idris, although he knew Mr. Farej, who had a
    better command of the English language than his wife and had medical training,
    would also be communicating with Ms. Idris. Dr. Fellows testified he emphasized
    the immediate risk to the babys life, as at that point Ms. Idris vital signs
    were stable.

[164]

Dr. Fellows agreed that given the urgency, he probably did not
    discuss the risks and benefits associated, either with a forceps delivery or a
    Caesarean section. When asked who made the decision to proceed with a forceps
    delivery, Dr. Fellows said:

I felt it was my obligation as a professional
    who was fully aware of the acuity of the situation that I would make those
    decisions while I was talking to the two of them, but I would ultimately be the
    one that made that decision for her.

[165]

Dr. Fellows indicated that based on his prior experiences with Ms.
    Idris, she was aware that delivery by way of a Caesarean section or a vaginal
    delivery were the two possible options. They had discussed those options during
    her previous pregnancies and, to some extent, during this pregnancy. Ms. Idris
    had previously expressed a preference for a vaginal delivery. Dr. Fellows
    believed his relationship with Mr. Farej and Ms. Idris was such that they would
    trust his recommendation as to the appropriate way to proceed with Sabrins
    delivery.

[166]

Mr. Farejs testimony from his discovery was read into the trial
    record. The trial judge set that evidence out in her reasons (para. 68). Mr.
    Farej testified that his wife had a very good relationship with Dr. Fellows. In
    one of the prenatal appointments, they discussed whether Ms. Idris should
    deliver by Caesarean section or vaginally. She told Dr. Fellows that it would
    depend on the situation when Ms. Idris was in the hospital and ready to
    deliver. Dr. Fellows agreed.

[167]

Mr. Farej testified that when Dr. Fellows came into the delivery
    room, he quickly examined Ms. Idris. He told them she was bleeding and the
    situation was serious. Mr. Farej recalled Dr. Fellows telling him I have to save
    your wife by delivering the baby. Mr. Farej told Dr. Fellows yes. Just go.
    Dr. Fellows proceeded immediately with a forceps delivery.

(ii) The trial
    judges reasons

[168]

The trial judge summarized the law of informed consent at paras.
    240-44. She recognized that Dr. Fellows was faced with an obstetrical emergency
    in which seconds counted. She recognized that the urgency of the medical
    situation was a circumstance to be taken into account in assessing the adequacy
    of the information provided to the patient by the doctor. The trial judge said,
    at para. 244:

When patients are in distress and the
    physician is making rapid assessments and judgments of the indicated
    alternative courses of action, it is not necessary or appropriate to require
    the physician to have a complicated, detailed discussion of all possible risks
    and benefits of each alternative procedure in such circumstances. In an
    obstetrical emergency, all the obstetrician is required to convey in the
    circumstances to meet the standard of care is his intended course of action and
    his reasons for doing so.

[169]

The trial judge also acknowledged that there was nothing in the
    records documenting any discussion between Dr. Fellows and Ms. Idris or
    recording Ms. Idris consent to Dr. Fellows course of action. The trial judge,
    however, went on to find that the discussions described by Dr. Fellows in his
    evidence, and Mr. Farej, to some extent in his evidence, did occur.

(iii) Analysis

[170]

Although the heading used by the trial judge misdescribes the informed
    consent issue, her analysis under that heading is directed at the evidence
    relevant to whether consent was given and the application of the earlier stated
    legal principles to the circumstances as found by the trial judge.

[171]

The trial judge obviously accepted Dr. Fellows evidence. She also
    accepted Mr. Farejs evidence on discovery, which in her view confirmed, at
    least in some respects, the evidence given by Dr. Fellows.

[172]

The trial judge was satisfied Dr. Fellows informed Mr. Farej and Ms.
    Idris that the situation was extremely urgent. He advised them in general terms
    of the potential dire consequences, especially to Sabrin. He identified the delivery
    options available, and told Mr. Farej and Ms. Idris which of those two options
    should be followed. In the context of a rapidly evolving, life and death
    medical emergency, and having regard to the existing relationship between Dr.
    Fellows, Ms. Idris and Mr. Farej, I am satisfied it was open to the trial judge
    to conclude the information provided by Dr. Fellows was sufficient and allowed Ms.
    Idris to make an informed decision as to the mode of delivery. It was also open
    to the trial judge to conclude that Ms. Idris, along with her husband, accepted
    Dr. Fellows statement that the baby had to be delivered immediately and a
    vaginal delivery was the best way to accomplish that end.

[173]

As I am satisfied the trial judges reasons explain why she rejected
    the argument that Ms. Idris did not consent to the procedure, I will not address
    the causation arguments tied to the question of informed consent.


V



the appropriate order

[174]

The trial judges failure to give adequate reasons in respect of
    causation and one of the standard of care issues means this court cannot
    meaningfully review either the finding the appellants failed to prove causation,
    or the finding the appellants failed to prove Dr. Fellows was negligent. The
    judgment dismissing the action cannot stand.

[175]

The appellants ask for a new trial. The respondent did not argue
    that if the appellants convinced the court the reasons were inadequate, this
    court could, or should, decide the case on the existing record.

[176]

I accept the appellants position. The evidence is complicated and
    the numerous issues are interrelated and interdependent. I agree the interests
    of justice are served by ordering a new trial and I would so order. I am sure
    experienced, capable counsel will be able to make use of the existing trial
    record to expedite any subsequent proceedings which prove necessary.

[177]

I accept the respondents contention that the new trial should be on
    both liability and damages. If Dr. Fellows is found liable, findings on the
    liability portion of the trial may impact the damage assessment.

[178]

I would dismiss the contingent cross-appeal as moot, given the order
    directing a new trial on both liability and damages.

[179]

The appellants are the successful party on the main appeal. The
    parties agreed that the successful party on the main appeal should have costs
    in the amount of $60,000, inclusive of disbursements and relevant taxes. There
    should be no order as to costs on the cross-appeal.

Released: March 29, 2022 DD

Doherty
    J.A.

I
    agree B.W. Miller J.A.

I
    agree. Sossin J.A.





[1]

For
    ease of reference, I will refer to the appellants/plaintiffs as the appellants
    in the rest of these reasons.



[2]

In
    Dr. Fellows operative note, he indicated the baby retracted into the
    abdomen. In his testimony, Dr. Fellows stated that the note was an error and
    that it should have read into the vagina.



[3]

The
    appellants argument that Dr. Fellows was negligent in not completing the
    delivery with the Kielland forceps rather than releasing them and having Ms.
    Idris attempt to push the baby out would still have to be considered as the
    question of when Sabrin could have been delivered by way of Caesarean section is
    not relevant to that allegation of negligence. I address that argument below at
    paras. 141-58.



[4]

Dr.
    Fellows did give evidence on his discovery about the time needed to perform an
    emergency Caesarean section. Those parts of his discovery were read in at trial
    and are summarized above at paras. 88-91.



[5]

In
    his cross-examination on June 10, 2019, at p. 86, l 7-8, the transcript has Dr.
    Fellows telling Ms. Idris that a
Caesarean section was the
    most appropriate way to deliver the baby. It seems obvious, having regard to
    Dr. Fellows evidence as a whole, that he misspoke on this one occasion. I do
    not understand the appellants to suggest otherwise.


