Date: Sun, 22 Feb 2004 09:59:31 -0500

From: David Cheifetz

Subject: Fairchild considered

Harold Luntz asks why the Ontario Court of Appeal would cite two Supreme Court of Canada decisions on Quebec civil law as foreclosing liability based on loss of chance in common law medical malpractice cases in light of McLachlin CJ's comments in her 1998 article in Torts Tomorrow: A Tribute to John Fleming about the still-open status of the doctrine at Canadian common law. I suspect at least part of the answer to that is something McLachlin CJ said in a 1997 SCC decision which Sharpe JA certainly knows of, even though it is not mentioned in Cottrelle. The balance of the answer, if there is one, may lie in the same realm as the answers to Lewis Carroll's "why is a raven like a writing desk?".

In separate concurring reasons in Arndt v. Smith, [1997] 2 S.C.R. 539, at para 43, in a medical malpractice appeal from British Columbia albeit on a different issue, McLachlin CJ seemed to suggest the SCC would decide a common law loss-of-chance case using the same principles as it had the civil law case:

This approach accords with the decision of this Court in Laferrière v. Lawson, [1991] 1 S.C.R. 541, which held (at p. 609) that causation "must be established on the balance of probabilities, taking into account all the evidence: factual, statistical and that which the judge is entitled to presume". It is consistent with the view there expressed that "[s]tatistical evidence may be helpful as indicative but is not determinative", and that "where statistical evidence does not indicate causation on the balance of probabilities, causation in law may nonetheless exist where evidence in the case supports such a finding". While Laferrière arose in the context of the civil law of Quebec, Gonthier J., speaking for a majority of the Court, made extensive reference to common law jurisdictions, suggesting that the principles discussed may be equally applicable in other provinces.

That passage contains the excerpt from Laferriere that she also quoted in the Torts Tomorrow article.

I don't know what one should infer from a refusal to grant leave since no reasons are given, but the SCC recently refused to grant leave to appeal in the lawyer's loss-of-chance case, Henderson v. Hagblom, 2003 SKCA 40 - a Saskatchewan Court of Appeal decision at www.canlii.org/sk/cas/skca/2003/2003skca40.html - which I believe is the case that Ken Cooper-Stephenson just mentioned.

David Cheifetz

----- Original Message -----
From: Harold Luntz
Sent: Saturday, February 21, 2004 11:59 PM
Subject: ODG: Fairchild considered

It seems to me that the Ontario court correctly characterised Cottrelle v Gerrard as a loss of chance case (and I presume that is why David Cheifetz compares it to Gregg v Scott). Why do they cite two SCC decisions from Quebec as foreclosing liability based on this doctrine? McLachlin CJ, who was a party to both of them, has written extra-judicially 'Although recovery for loss of chance has been considered in the context of Quebec civil law, it has not been evaluated under the common law' ('Negligence Law - Proving the Connection' in N J Mullany & A M Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, Sydney, 1998, p16 at pp 25-6).

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