Laing v. Sekundiak, 2015 MBCA 72

Citation: Laing v. Sekundiak, 2015 MBCA 72 Date: 20150728 Docket: AI14-30-08195 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin BETWEEN : LAUREN WILLIAMS LAING ) E. B. Eva ) for the Appellant (Applicant) Appellant ) ) T. J. Hansell and - and - ) D. A. Ripley ) for the Respondent ) TODD SEKUNDIAK ) Appeal heard: ) January 15, 2015 (Respondent) Respondent ) ) Decision pronounced: ) July 28, 2015 HAMILTON J.A. [ 1 ] This is an appeal of the dismissal of an application for leave to begin an action against an orthopaedic surgeon pursuant to

Part II of The Limitation of Actions Act , C.C.S.M., c. L150 (the Act ). The appellant (the applicant) asserts that in March 1999, the respondent used a new and unproven hip replacement system, that was not licensed for use in Canada, without her consent and, as a result, she suffered damage. [ 2 ] Her proposed causes of action are in negligence and for battery.

The allegations of negligence are for breach of the duty of care and for lack of informed consent. [ 3 ] The application judge found that the applicant had filed her application within the time required pursuant to s. 14(1) of the Act , but she did not establish a reasonable chance of success for her proposed causes of action, as required by s. 15(2) of the Act . [ 4 ] The applicant’s grounds of appeal are numerous.

Briefly stated, she says that the application judge erred in law, and in fact, in not allowing her proposed causes of action to proceed. [ 5 ] The respondent argues that the application judge erred in finding that the application was commenced within the time prescribed by s. 14(1) for the proposed claims for lack of informed consent and for battery. [ 6 ] Among several difficult issues in this appeal is the question of whether the applicant can meet the test under s. 15(2) , notwithstanding that she did not adduce independent expert opinion evidence. [ 7 ] For the reasons that follow, I would allow the appeal in part.

I see no error by the application judge in his analysis and conclusion to deny the applicant leave to commence a claim against the respondent in negligence for breach of the duty of care and for battery. With respect to the proposed claim for lack of informed consent, I am of the view that the application judge erred in law and consequently, ignored relevant evidence.

As a result, he erred in concluding that the applicant had failed to demonstrate that her proposed claim for lack of informed consent has a reasonable chance of success. [ 8 ] Furthermore, I am of the view that the application judge’s ruling with respect to s. 14(1) is entitled to deference.

The Act [ 9 ] The sections of the Act at issue in this appeal are ss. 14(1) and 15(2) : Extension of time in certain cases 14(1) Notwithstanding any provision of this Act or of any other Act of the Legislature limiting the time for beginning an action, the court, on application, may grant leave to the applicant to begin or continue an action if it is satisfied on evidence adduced by or on behalf of the applicant that not more than 12 months have elapsed between (

a) the date on which the applicant first knew, or, in all the circumstances of the case, ought to have known, of all material facts of a decisive character upon which the action is based; and (

b) the date on which the application was made to the court for leave. Evidence required on application 15(2) Where an application is made under

section 14 to begin or to continue an action, the court shall not grant leave in respect of the action unless, on evidence adduced by or on behalf of the claimant, it appears to the court that, if the action were brought forthwith or were continued, that evidence would, in the absence of any evidence to the contrary, be sufficient to establish the cause of action on which the action is to be or was founded apart from any defence based on a provision of this Act or of any other Act of the Legislature limiting the time for beginning the action. [emphasis added] Background [ 10 ] The facts are taken from the affidavit evidence filed by the applicant and the cross-examinations of the applicant and one of her treating physicians, Dr.

Hedden. In keeping with s. 15(2) , the respondent did not file evidence in response, although he did cross-examine the applicant on her affidavits. Dr. Hedden was cross-examined pursuant to Queen’s Bench Rule 39.03(1), Man. Reg. 553/88 . [ 11 ] Hip replacement components must be licensed under the Medical Devices Regulations , SOR/98-282 (the Regulations) established under the Food and Drugs Act .

Unlicensed medical devices may be used, provided that the physician applies for special access for use on a specific patient where it is for emergency use or if conventional therapies have failed, are unavailable or are unsuitable. The Regulations also state that special access may only be granted if a licensed device that would adequately meet the requirements of the patient is not available in Canada.

The physician must sign a declaration stating that he or she will inform the patient of the risks and benefits of using an unlicensed device. [ 12 ] In 1998, the applicant required a right hip replacement and was referred to the respondent. When she met with him, he explained the risks and benefits of the surgery. As for the risks, he advised her of possible infection and dislocation of the new hip replacement components and that she would not be able to participate in impact sports. There was no discussion about what type of hip replacement system would be used. The applicant consented to the surgery.

At that time, she was 42 years old and worked as a registered nurse. [ 13 ] The conventional hip replacement system in 1999 was comprised of a metal stem and cup, with a plastic polyethylene liner in the cup. [ 14 ] A week before the surgery, the respondent applied for, and was granted, special access to use an unlicensed ceramic hip system (the ABC system) on a patient other than the applicant. He signed a declaration agreeing to inform the patient of the risks and benefits of such use. [ 15 ] In his “Application for Orthopedic” to the St.

Boniface Hospital for the applicant’s surgery, under the heading “Orthopedic Equipment,” the respondent checked off “Meridian” from the list of available devices to be used for the surgery. [ 16 ] On March 10, 1999, the applicant met with a nurse to sign a St. Boniface Hospital consent form for a right total hip arthroplasty. [ 17 ] The surgery took place on March 17, 1999. The respondent used the ABC system. He never informed the applicant before the surgery that he was going to do so.

During the surgery, the ceramic insert chipped and the entire cup and insert had to be removed and replaced. [ 18 ] The respondent saw the applicant several times for follow up until 2002, when he moved to the United States. He

never advised the applicant that he had used the ABC system. [ 19 ] In January 2003, the applicant saw Dr. Hedden, an orthopaedic surgeon, because her hip was squeaking and she was in pain. He had been one of the respondent’s partners and they were friends. Dr. Hedden informed the applicant that her hip replacement components were a ceramic system. [ 20 ] On January 13, 2003, Dr. Hedden wrote to the applicant’s referring physician about her condition, noting that further surgery was “imperative.” He expressed concern about the surfaces of the components impinging and causing debris in the hip joint.

The letter read, in part, as follows: ... [S]he had a right hip replacement done in March 1999 by [the respondent] utilizing an uncemented ceramic on ceramic hip. She initially had an excellent result and there were no complications at the time of the initial procedure. Approximately six months ago she noticed some squeaking in the hip which has become progressive and is now constant and has been associated with pain over the past few months. …. . . . . . On examination she has a half a cm leg length discrepancy with the right leg being longer.

When she walks there is an obvious loud squeaking and grinding involving the right hip. Range of motion of the right hip is limited by pain at the extremes. .... Review of her xrays demonstrate an uncemented ceramic on ceramic hip. The components have not loosened, there is no obvious abnormality with the articulating components. ... I think it is imperative that we re-explore her hip as these hard on hard bearing surfaces if they do impinge will cause a tremendous amount of debris being released into the hip joint. This would potentially be devastating for her periprosthetic bone stalk.

In view of this I think it is imperative that we re-explore this hip and determine the exact cause for the mechanical symptoms. I think it is also important that we exclude infection and septic workup will be performed today. In view of the fact that this is a potentially devastating complication we will certainly try and priorize her revision. . . . . . [emphasis added] [ 21 ] On July 4, 2003, Dr.

Hedden performed a further right total hip arthroplasty on the applicant in which he found “evidence of impingement” and “titanium debris.” Among other things, his operative report states the following: PREOPERATIVE DIAGNOSIS : Failed right total hip arthroplasty. POSTOPERATIVE DIAGNOSIS : Same PROCEDURE PERFORMED : Revision right hip arthroplasty with removal of well-fixed acetabular component and femoral head and reimplantation with a cementless cup with screws, a cross-link polyethylene liner and cobalt chrome femoral head replacement.

INDICATION FOR PROCEDURE : .... [The applicant] had developed a very low squeak in the hip and subsequently developed pain which was often inflammatory in nature. X-rays had demonstrated good position of the implants with no evidence of loosening and septic workup had been negative. It was therefore felt that she had either impingement or liner cup dissociation. ... [T]herefore felt revision was necessary. OPERATIVE PROCEDURE :

.... There was noted to be gross black synovitis consistent with titanium debris. Complete synovectomy was performed. .... There was evidence of impingement over the posterior-superior region of the acetabular component . ... …. It was therefore felt that acetabular revision was necessary. .... [emphasis added] [ 22 ] The applicant had asked Dr. Hedden that the hip replacement components removed by him be kept for her. Although he made this request, the hospital could never locate them. [ 23 ] Dr. Hedden provided two reports to the applicant’s counsel. The first report is dated May 27, 2004.

The second is dated July 22, 2004, and is in response to questions arising from the May 27, 2004 report. [ 24 ] The May 27, 2004 report reads, in part, as follows: .... As I mentioned in my operative report, from the revision surgery performed in July 2003, she was found to have evidence of impingement of the stem of the femoral component against the edge of the metallic acetabular cup. This abrasion between the neck and the cup resulted in the release of titanium particles into the joint precipitating the squeaking and subsequently resulting in a synovial reaction causing pain.

The solution to this problem was to remove her acetabular component, which was noted to be of fairly small size, the initial acetabular component measuring 48 mm in diameter. This was replaced with a slightly larger cup of 52 mm in diameter, and the cup orientation was adjusted to avoid further impingement. The femoral component was noted to be well fixed and was retained. .... The cup that best fits the patient’s anatomy is always utilised and was therefore very appropriate that her initial surgery ... utilized a 48 mm cup which did match the size of her acetabulum.

Unfortunately we do however recognise that small cups are more prone to impingement and therefore positioning is more difficult and certainly this was a factor leading to the development of impingement in her case. [emphasis added] [ 25 ] In follow-up, the applicant’s counsel asked Dr. Hedden to provide “a detailed description of how the cup was positioned, as opposed to how you positioned the cup in the second surgery” and to “provide more detail as to how the positioning of the cup was a ‘factor leading to the development of impingement in her case’.” [ 26 ] Dr.

Hedden replied to these enquiries in his July 22, 2004 report, in which he wrote: Cup position in total hip arthroplasty is a complex process. The cup position is critical to ensure stability of the hip joint, and at the same time impingement needs to be avoided. During the surgery a trial cup is inserted. The stability of the hip is then assessed and impingement is looked for. It is very often the case that the position of the cup is required to maintain a stable hip joint is very close to the position where the implants do impinge.

This was most likely the situation in this case where the cup had been placed in a position to provide hip stability, but a degree of impingement posteriorly had occurred resulting in the failure of the prosthetic joint. Again it is noted that smaller cups require the use of smaller femoral head and this accentuates the problem as impingement occurs with a smaller arc of motion in this instance. At the time of revision, a slightly larger cup was utilised. The position of the cup was altered slightly to avoid the impingement.

This did result in a less stable hip and special precautions were necessary after surgery to avoid dislocation of the hip joint. [ 27 ] After the applicant learned about the use by the respondent of the ceramic-on-ceramic hip components, she made extensive inquiries of the St. Boniface Hospital and Health Canada and researched medical journals and other commentaries with respect to the ABC system and its risks and benefits. [ 28 ] Further to one of her enquiries, the St.

Boniface Hospital sent her a letter dated February 4, 2005, enclosing a copy of Health Canada’s letter of permission and special access dated March 11, 1999, for the sale to, and use by, the respondent of ten units of

the ABC system as well as copies of some labels for components that corresponded to her medical records. [ 29 ] On April 14, 2005, the applicant faxed a request to Health Canada enquiring whether these labels were “Trident or ABC” and whether they were licensed. Trident is the name of another ceramic-on-ceramic hip replacement system. [ 30 ] On March 1, 2007, the applicant underwent a third surgery to revise the arthroplasty and correct her leg length discrepancy. The surgery was performed by Dr. Gross in Toronto. Dr. Gross was the respondent’s mentor.

He did not provide a medical report and the evidence with respect to that surgery arises from the medical records attached to the applicant’s affidavits. The Proceedings [ 31 ] On June 30, 2004, the respondent filed a notice of application for leave under the Act . Her proposed statement of claim alleged that the respondent breached the duty of care owed to her, citing the following particulars: (

a) failing to properly place the metallic acetabular cup in the plaintiff’s right hip joint during the surgery; (

b) using hip replacement parts during the surgery on the plaintiff which were not approved for use by Health Canada, or were otherwise unsuitable for use on the plaintiff; and (

c) without restricting the generality of the foregoing, failing to satisfy or discharge the duty of care owed to the plaintiff in the circumstances and failing to exercise the required degree of skill, care and competence in the surgery he performed on the plaintiff. [ 32 ] On April 18, 2006, she filed an amended notice of application for leave. Her amended proposed statement of claim expanded on the allegations in negligence against the respondent for breaching his duty of care by using the ABC system.

She also made claims arising from the use of the ABC system for lack of informed consent and for battery. [ 33 ] In 2012, the respondent’s motion to dismiss the application for delay was dismissed by the master, as was his appeal to the Court of Queen’s Bench in January 2013. [ 34 ] The applicant was cross-examined on January 15, 2013, and Dr. Hedden was examined on April 24, 2013. The Application Judge’s Decision [ 35 ] The application judge dismissed the application for leave.

After extensively reviewing the evidence and commenting on the law, he concluded that (at para. 98): … [The applicant] has brought her application for leave within 12 months from when she first knew or ought to have known of all material facts of a decisive character upon which her proposed action is based. However, in my view, the evidence falls short of showing on a prima facie basis that there is a reasonable chance of success for the proposed causes of action. The Evidence [ 36 ] The application judge ruled that only the applicant’s own evidence, the medical records and the evidence from Dr.

Hedden was admissible evidence for the purposes of the application. He considered “other information recounted by [the applicant] from third parties in writing or orally as inadmissible hearsay” (at para. 56). This included a great deal of material attached to her affidavits that were copies of articles from medical journals and other commentary with respect to the ABC system and its use. Although this ruling was a ground of appeal in the applicant’s notice of appeal, it was abandoned at the appeal hearing. [ 37 ] The application judge noted that Dr.

Hedden was examined under Queen’s Bench Rule 39.03(1), as “a person, other than an expert.” He wrote that, “this prohibition does not detract from the inference that Dr. Hedden is in fact an expert based on his background and experience as an orthopaedic surgeon. I have treated Dr. Hedden’s evidence accordingly” (at para. 55). Section 14(1) [ 38 ] He concluded that the application for leave to bring the claims for lack of informed consent and battery was brought within the 12-month period contemplated by s. 14(1).

He was of the view that the applicant’s April 14, 2005 enquiry letter to Health Canada established the crucial date for determining the 12-month period, not the February 4, 2005 letter that she received from the St. Boniface Hospital, as argued by the respondent. Section 15(2) – Lack of Informed Consent [ 39 ] The application judge concluded that the applicant had not demonstrated a reasonable chance of success for her proposed claim for lack of informed consent. He explained a doctor’s duty of informed consent by quoting a passage from Revell v.

Heartwell et al., 2010 ONCA 353, 266 O.A.C. 184, which states in part that (at para. 42): Doctors must disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person inthe patient's position would want to know about before deciding whether to proceed with the proposed treatment. …. [40] He noted that no expert opined that the disclosure made by the respondent was in breach of this duty.

He wrote (atpara. 59): In my view, there is no blanket duty to advise a patient of the specific medical device that is being used in surgery with a view to thendiscussing the merits of one device over another. In the circumstances of this case, I am unable to conclude that the mere fact of notdisclosing that the ABC System was being used creates a reasonable cause of action. [41] After quoting Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880, at length, he wrote, “as is evident from theforegoing, whether a risk is material does not depend exclusively on expert medical evidence” (at para. 61).

However, in this case, heconcluded that expert evidence was necessary because he was unable to assess (at paras. 63-64): …. o the material risks inherent in the use of the ABC System at the time of the first surgery; o whether the material risks associated with the ABC System identified by [the applicant] were known or should have been known by[the respondent] at the time of the first surgery; and o any alternative means of treatment, through conventional hip replacement or otherwise, and their risks in [the applicant]’scircumstances. [42] The application judge did not accept the applicant’s arguments that Dr.

Hedden’s evidence established that the ABCsystem had material risks associated with it in 1999, and in his reasons states (at paras. 65-68): Dr. Hedden’s evidence is to the effect that when he first saw [the applicant] in 2003, he suspected and then determined that there wasimpingement and debris was being released into the hip joint. From this evidence, [the applicant] argues that it should be extrapolatedthat this was an undisclosed risk of using the ABC System at the time of the first surgery in 1999, and that this risk materialized in hercase.

However, it is unknown whether there was an evolution of known material risks associated with the use of the ABC System from1999 to 2003. Dr. Hedden treated [the applicant] more than three years after the first surgery. When examined as a non-party in April 2013,Dr. Hedden confirmed that he had not gone back and done a detailed review of the literature as it may have existed in 1999, when [therespondent] performed the first surgery, to compare how it evolved.

Without admissible evidence about the known material risks of the ABC System as understood in 1999, for the purpose of consideringwhether there is some realistic prospect that the action will succeed, I am unable to assess what risks ought to have been disclosed to [theapplicant] and whether these risks materialized in her case. [The applicant] says that given her age, conventional polyethylene components, which last longer, should have been used. She deposedthat the life expectancy of the ABC System was unknown and had significant limitations for revision.

However, there is essentially noevidence of the risk of any alternative treatment options available in [the applicant]’s circumstances in 1999. [43] He also did not accept the applicant’s argument that the respondent had a duty to disclose the unlicensed nature of theABC system (at para. 69):

At the time of the first surgery, the ABC System was not licensed for use in Canada. There is evidence that permission was given tosupply the ABC System to [the respondent] around the time of the first surgery. However, it appears that no permission was granted byspecial access application to use the ABC System specifically on [the applicant].

Assuming, without deciding, that the effect of [therespondent]’s March 10, 1999 undertaking to Health Canada is that he agreed to inform [the applicant] of the risks and benefitsassociated with the use of the ABC System, these risks and benefits are not listed in this undertaking. Furthermore, the undertaking wasgiven to Health Canada and not [the applicant].

Absent evidence of an increased risk to a patient by using a device, or one device overanother, it is my view that the law of informed consent has not evolved to the point that a physician must disclose to a patient the merefact that an unlicensed device is being used. There is no admissible expert evidence filed by [the applicant] indicating that at the time ofthe first surgery there was an increased risk to her through the use of the ABC System. [emphasis added] [44] The application judge then addressed the test for causation for a claim for lack of informed consent.

He referred to themodified objective test enunciated in Reibl and reaffirmed in Arndt v. Smith, (SCC), [1997] 2 S.C.R. 539. He explainedthat it requires “the trial judge to determine whether the reasonable person in [the applicant’s] circumstances, if adequately informed ofthe attendant risks, would have proceeded with the procedure” (at para. 70).

He concluded (at paras. 72-73): … [W]ithout having, through admissible evidence, the full picture of the risks associated with the use of the ABC System at the time andany other options in [the applicant]’s case, I am unable to assess the prospect of [the applicant] establishing that, if such a full picture hadbeen placed before her prior to the first surgery, she would not have consented to this surgery.

In the circumstances, while recognizing that the evidentiary threshold is low, [the applicant] has not shown on a prima facie basis thatshe has a reasonable chance of success for a cause of action based on lack of informed consent. Re: Section 15(2) - Battery [45] The application judge highlighted that the distinction between informed consent and battery was explained in Riebl andquoted, with approval, the following passage from Kelly v.

Hazlett (1976), (ON SC), 15 O.R. (2d) 290 at 312-13(H.C.J.) (at para. 74): It appears to me that it is reasonable to look at the matter of informed consent, as far as an alleged battery is concerned, from the point ofview of what information was communicated.

If the basic nature and character of the operation performed is substantially that ofwhich the plaintiff was advised, and then agreed to, then there has not been an unconsented to invasion of the person of theplaintiff, regardless of any failure to disclose any collateral risks flowing from the operation. ... [emphasis original] [46] He concluded that, given the applicant’s consent to a “right total hip arthroplasty,” she did not establish (at para. 76): …. on a prima facie basis that the use of the ABC System was beyond that to which there was consent or the basic nature and characterof the operation performed was not substantially that of which [the applicant] was advised and then agreed to.

It has not been shown ona prima facie basis that [the applicant] has a reasonable chance of success for the cause of action of battery. Re: Section 15(2) – Negligence for Breaching the Duty of Care [47] The application judge noted that the applicant had not filed an affidavit from an expert in support of her allegations thatthe respondent breached the duty of care.

He reviewed her arguments that he should draw inferences of negligence “based on medicalreports to and from her treating physicians, extracts from her medical charts, the manufacturer’s instructions for the use of the ABCSystem, and medical authorities obtained through her research” (at para. 78). He referred to the caution not to judge the conduct of aphysician in hindsight, as explained in ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674 (at para. 33). [48] He concluded that he could not assess the standard of care without expert evidence. He wrote (at paras. 88-89, 96):

In the present case, there is essentially no evidence of how a prudent and diligent doctor, possessing a reasonable level of knowledge at the time, competence, and skill, in that field would have conducted himself or herself in the same circumstances as [the respondent].

No expert has opined that: o the use of the ABC System was negligent in itself; o [the applicant] was not an appropriate candidate; o there were other options for [the applicant]; o the standard of care was not met due to the size of the replacement components, the manner in which the implants were inserted/positioned, or the way that the first surgery was otherwise performed; o the manufacturer’s instructions are the standard of care; o [the respondent] did not have proper training; or o there was negligent follow-up care.

While matters falling within the ordinary common sense of a trier of fact can be judged to be negligent ( Neuzen at para. 44 ), this is not such a case. In the circumstances of this case, assessing the standard of care is not possible without expert testimony. There is no expert evidence that would prima facie show that the problems experienced by [the applicant] were caused by a negligent act or omission of [the respondent]. I am mindful that the evidentiary requirement to meet s. 15(2) of the Act is not a burdensome one.

While the evidentiary threshold is low, there needs to be enough evidence, so that, if sent on to trial, there is some realistic prospect that the action will succeed. Similar to the conclusion I reached on the lack of informed consent issue, given the absence of expert evidence, it has not been shown on a prima facie basis that [the applicant] has a reasonable chance of success for a cause of action in negligence.

Position of the Applicant [ 49 ] The applicant alleges that the application judge erred by failing to find that she had established a reasonable chance of success for her proposed claims. [ 50 ] With respect to her claim for lack of informed consent, she asserts that he applied the wrong test by limiting his analysis to a discussion of a duty to disclose material risks and that he considered irrelevant matters. In particular, she says that he failed to address the central issue of the use of the unlicensed ceramic device and ignored relevant evidence of Dr. Hedden with respect to the risks of such use.

Furthermore, she argues that he erred in concluding that the applicant had to have expert evidence about all of the risks of the ABC system and with respect to the conventional hip replacement system.

Finally, she asserts that he erred when he found that a physician had no duty to advise a patient of the medical device used in surgery or the merits of one device over another and that the law does not require disclosure of the “mere fact” that an unlicensed device is being used, absent an increased risk. [ 51 ] With respect to her claim for battery, she argues that the application judge failed to give effect to the fact that the applicant did not consent to the use of the unlicensed medical device, and that such use went beyond any consent that she gave.

Furthermore, she says that he erred in not finding that the applicant’s consent to a total hip replacement was not broad enough for the respondent to use unlicensed components not authorized by law. [ 52 ] Finally, with respect to her proposed claim in negligence for breach of the duty of care, she asserts that the applicant raised a prima facie case because any standard of care that would permit the unauthorized use of an unlicensed medical device would be negligent. As well, she argues that he erred by failing to find that Dr.

Hedden’s evidence raised a prima facie case that the defendant was negligent by improperly positioning the components. Position of the Respondent [ 53 ] The respondent’s position is that the grounds of appeal are without merit. As well, he asserts that the application judge erred in finding that the applicant brought her application within the time prescribed by s. 14(1) . Furthermore, he asserts that this is a very old claim for which the applicant has failed to obtain an independent expert to support any of her arguments, although they have been promised on the record in numerous previous proceedings.

He says that Queen’s Bench Rule 39.03(2) precludes reliance on Dr. Hedden’s evidence as expert evidence. Therefore, he argues that it is not in the interests of justice to allow the application and to do so would be unjust to him. [ 54 ] The respondent says that the application judge correctly stated the principles of law with respect to informed consent, negligence, battery, the tests under

Part II of the Act and where expert evidence is required to establish a claim. He says that the applicant failed to provide any evidence of the risks and benefits of any alternative treatment, which was critical to her claim for lack of informed consent. [ 55 ] Furthermore, he says that the application judge did not commit any palpable and overriding error in applying the law to

the facts and his decision is entitled to deference. Decision – The Appeal re: Section 15(2) [56] In my view, the issue of informed consent is the critical ground of appeal. Before turning to that analysis I will addressbriefly the standard of review, the test under s. 15(2) and the applicant’s grounds of appeal concerning her proposed causes of action fornegligence by breaching the duty of care and for battery. Standard of Review [57] The applicable standard of review depends on the nature of the specific question being addressed.

For decisions underPart II of the Act the overarching principle is one of deference. As articulated in McIntyre v. Frohlich et al., 2013 MBCA 20, 288Man.R. (2d) 291 (at para. 49), “unless there is an error in principle or a misapprehension of the facts, the decisions should not beoverturned unless they are so clearly wrong as to amount to an injustice.” [58] As is well-known, whether there is an error in principle is a question of law and the standard of review is correctness. A question of fact calls for the standard of review of palpable and overriding error. See Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235. I will have more specific comments on the applicable standards of review in the context of my analysis of specific issues. The Test under Section 15(2) [59] Section 15(2) sets out the evidentiary requirements to obtain leave under

Part II of the Act. Over the years, a number ofdecisions from this court have explained the test created by s. 15(2) in somewhat different ways, including reasonable chance of success,prima facie case, and reasonable prospect of success. [60] In Einarsson et al. v.

Adi’s Video Shop et al. (1992), (MB CA), 76 Man.R. (2d) 218 (C.A.), TwaddleJ.A. used “reasonable chance of success”: “To paraphrase that provision loosely, the applicant must prove by evidence that he has acause of action which, subject to any defence that may be raised, has a reasonable chance of success” (at para. 11) (emphasis added). [61] Later in his reasons, he concluded that the evidence submitted by the applicants “was not enough to show, even on aprima facie basis, that the applicants had a reasonable chance of establishing the fire to have been caused by a defect present at the timeof sale” (at para. 18). [62] In Justice v.

Cairnie Estate et al. (1993), (MB CA), 88 Man.R. (2d) 43 (C.A.), Scott C.J.M. quotedTwaddle J.A.’s paragraph from Einarsson referencing “a reasonable chance of success” (at para. 9 of Cairnie). Later in his decision,when considering whether the applicants had met the burden under s. 15(2), he also referred to a reasonable prospect of success (at para.45): The motions court judge was quite correct in concluding that the evidence presented failed to demonstrate a reasonable prospect ofsuccess as against the government staff psychiatrists.

In this context, a “reasonable chance of success” means more than simplydisclosing a cause of action sufficient to successfully resist an application to strike out the statement of claim. The applicant must, in anapplication under

Part II of the Act, “establish the cause of action in which the action is to be or was founded apart from any defencebased on a provision of this Act” (s. 15(2)). It must be shown that there is something to the case so that if sent on to trial there is somerealistic prospect that the action will succeed …. [emphasis added] [63] In Hydro Electric Board (Man.) v. Inglis (John) Co. et al. (1999), (MB CA), 142 Man.R. (2d) 1(C.A.), the court used the phrase “reasonably arguable case” when explaining the test for determining if there is a “prima facie case” (atpara. 20): …. With respect to [s. 15(2)], the

section mandates that the court is not to look at evidence tendered by or on behalf of the respondents indetermining if there is a prima facie case. Once it is determined on evidence presented by the applicant that the threshold of areasonably arguable case has been met, only then is the motions court judge in a position, pursuant to the broad discretion given by s.14(1), to permit evidence to be tendered to assist in the exercise of the discretion given only by that provision. [emphasis original] [64] In Chan v. Chan et al., 2001 MBCA 191, Helper J.A. used prima facie case and explained it as follows (at para. 14): The legislation is clear that an applicant under

Part II of the Act bears the onus of putting sufficient evidence before the court to establish

the alleged cause or causes of action. The evidence need not be so complete as to establish the case on a balance of probabilities . However, the alleged facts must be of substance. They must, in the absence of evidence to the contrary, establish a continuity to support a cause of action and, if based on information and belief, must reveal the source of that information and belief to demonstrate the weight to be attached to any particular allegation .

The judge to whom the application is made cannot be left guessing as to what other evidence may be forthcoming to fortify the claim or claims being made. [emphasis added] [ 65 ] Also see Johnson v. Johnson , 2001 MBCA 203 at para. 13 , 163 Man.R. (2d) 46, in which the court referred to an applicant adducing evidence “sufficient to establish the cause of action on at least a prima facie basis”; and Alexander et al. v. Zurich Insurance Co. et al. , 2002 MBCA 88 at paras. 2-4 , in which Huband J.A. referred to the various tests that had been enunciated.

In that case, Huband J.A. concluded that there was “no realistic chance of success” (at para. 19). [ 66 ] In my view, these different articulations of the test created under s. 15(2) really say the same thing. Therefore, to be successful, an applicant seeking leave must adduce sufficient evidence to establish a prima facie case and that means demonstrating a case that has a reasonable chance of success. This is the test that was upheld by Chartier J.A. (as he then was), writing for the court in Timmerman v. Selkirk and District Planning Area Board et al., 2008 MBCA 52 , 228 Man.R. (2d) 77 . See also Benson v.

Workers’ Compensation Board (Man.) et al. , 2014 MBCA 19 , 303 Man.R. (2d) 186 , which also referred to “reasonable chance of success” (at para. 4). [ 67 ] The application judge stated that the applicant “must prove by evidence that she has a cause of action which, subject to any defence that may be raised, has a reasonable chance of success” (at para. 49). He then cited the Cairnie decision. Later in his reasons he referred to “prima facie merit” (at para. 53) and “prima facie basis that [the applicant] has a reasonable chance of success” (at paras. 73, 76, 96).

In his final conclusion he wrote that, “the evidence falls short of showing on a prima facie basis that there is a reasonable chance of success” (at para. 98). I am satisfied that the application judge understood the test under s. 15(2) . Proposed Claim in Negligence for Breach of the Duty of Care [ 68 ] One of the essential elements for a successful claim in negligence is that the defendant breached the applicable standard of care.

In the leading case of ter Neuzen , the Supreme Court of Canada set out the applicable standard of care for physicians and specialists (at para. 33): It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances.

In the case of a specialist, … the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. …. [ 69 ] The court went on to explain why expert evidence is normally necessary to prove negligence (at paras. 44, 51): … [ C]ourts should not involve themselves in resolving scientific disputes which require the expertise of the profession.

Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. …. I conclude from the foregoing that, as a general rule, where a procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent.

On the other hand, as an exception to the general rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that he or she was merely conforming to such a negligent common practice. [ 70 ] The application judge referred to ter Neuzen in his reasons several times, including the caution not to judge the conduct of a physician with hindsight ( see ter Neuzen at para. 34 ).

He did not accept the applicant’s argument that this was a case involving “matters falling within the ordinary common sense of juries” ( ter Neuzen at para. 44 ). [ 71 ] The applicant has not persuaded me that the application judge ignored Dr. Hedden’s evidence, which included his evidence that he found impingement and made other adjustments for stability during the revision surgery.

The application judge noted this evidence. [ 72 ] The fundamental difficulty for the applicant is, as the application judge wrote (at para. 88): … [T]here is essentially no evidence of how a prudent and diligent doctor, possessing a reasonable level of knowledge at the time, competence, and skill, in that field would have conducted himself or herself in the same circumstances as [the respondent]. ….

[73] The application judge was not obliged, as argued by the applicant, to infer that the respondent breached the duty of careby using the ABC system during the surgery. I see no error in how the application judge approached his analysis with respect to theproposed cause of action in negligence for breach of the duty of care either in principle or in fact. His conclusion that the applicant hadnot demonstrated a reasonable chance of success for her proposed claim in negligence for breaching the duty of care is a question ofmixed fact and law, and as such, is entitled to deference.

Proposed Claim for Battery [74] The tort of battery is distinct from negligence in that it is an intentional tort, does not require proof of causation oradducing medical evidence and the defendant doctor has the burden of proving consent. See Ciarlariello v. Schacter, (SCC), [1993] 2 S.C.R. 119. [75] In Reibl, the Supreme Court of Canada explained the distinctions between a claim for battery and a claim in negligencefor lack of informed consent. In doing so, it restricted the circumstances for which a person can succeed in a claim for battery: (at pp.890-892): ....

In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery ortreatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery ortreatment has been performed or given beyond that to which there was consent. . . . . . … [U]nless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, howeverserious, should go to negligence rather than to battery.

Although such a failure relates to an informed choice of submitting to or refusingrecommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable in legal obligation to the dutyof due care in carrying out the particular treatment to which the patient has consented. It is not a test of the validity of the consent. [emphasis added] [76] Thus, the failure of a doctor to provide material information to a patient should, in most cases, be dealt with as a matterof informed consent. [77] The application judge understood the limited application of battery.

In his reasons, he highlighted (at para. 74) thedistinction between informed consent and battery, as explained in Riebl. [78] Here the applicant consented to hip surgery and hip surgery was performed by the respondent. The applicant arguesthat the use of the ABC system without her consent constituted the tort of battery. Given the commentary in Reibl, I am not persuadedthat the applicant has demonstrated any error on the part of the application judge that would permit this court to intervene in the judge’sexercise of discretion.

Deference is owed to his conclusion that, given the applicant’s consent to a “right total hip arthroplasty,” she didnot establish (at para. 76): … on a prima facie basis that the use of the ABC System was beyond that to which there was consent or the basic nature and character ofthe operation performed was not substantially that of which [the applicant] was advised and then agreed to. It has not been shown on aprima facie basis that [the applicant] has a reasonable chance of success for the cause of action of battery.

Proposed Claim for Lack of Informed Consent [79] The law with respect to medical negligence for lack of informed consent has expanded since the case of Reibl. WhileReibl remains the leading Supreme Court of Canada authority, many appellate decisions have broadened its impact by expanding aphysician’s duty to disclose beyond the “material risks” discussed in Reibl. The applicant has persuaded me that the application judgemade errors in principle in his articulation and analysis of the law of informed consent.

As a result, he considered irrelevant factors andfailed to take into account the evidence pertaining to the central issue of the respondent using the unlicensed ABC system without herconsent. The Law [80] Liability for a claim for lack of informed consent is based on the breach of the physician’s duty to give information to apatient. A causal link must exist between the breach and the injury. See John C. Irvine, Philip H. Osborne and Mary J. Shariff,Canadian Medical Law: An Introduction for Physicians, Nurses and other Health Care Professionals, 4th ed. (Toronto: Carswell,

2013) at p. 55. Therefore the jurisprudence often refers to a two-part test for such a claim that addresses the duty and causation. SeeGerelus v. Lim et al., 2008 MBCA 89, 231 Man.R. (2d) 23, in which this court reviewed the law in the context of an alleged failure todisclose risks of a medical procedure. [81] The duty of disclosure was first explained in Hopp v. Lepp, (SCC), [1980] 2 S.C.R. 192 and expandedin Reibl. In Reibl, the Supreme Court of Canada set out the doctor’s duty of disclosure of material risks (at pp. 891-892): ....

I can appreciate the temptation to say that the genuineness of consent to medical treatment depends on proper disclosure of the riskswhich it entails, but in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclosethe attendant risks, however serious, should go to negligence rather than to battery.

Although such a failure relates to an informed choiceof submitting to or refusing recommended and appropriate treatment, it arises as the breach of an anterior duty of due care, comparable inlegal obligation to the duty of due care in carrying out the particular treatment to which the patient has consented. It is not a test of thevalidity of the consent. In

summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgicaloperation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, withoutbeing questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risksattendant upon the performance of the operation.

However, having said that, it should be added that the scope of the duty of disclosureand whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case. [emphasis added] [82] In Reibl, the Supreme Court of Canada provided guidance with respect to what constitutes a material risk. Theapproach was “patient-centric” (Ciarlariello, Cory v. Bass, 2012 ABCA 136 at para. 17, 522 A.R. 220) because the court rejected theproposition that the question of materiality should be defined by what the physician viewed as material.

The question is for the trier offact. Laskin C.J.C., for the court, wrote (at pp. 894-895): …. To allow expert medical evidence to determine what risks are material and, hence, should be disclosed and, correlatively, what risksare not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the questionwhether there has been a breach of that duty. Expert medical evidence is, of course, relevant to findings as to the risks that reside in orare a result of recommended surgery or other treatment.

It will also have a bearing on their materiality but this is not a question that is tobe concluded on the basis of the expert medical evidence alone. .... What is under consideration here is the patient’s right to know whatrisks are involved in undergoing or foregoing certain surgery or other treatment. The materiality of non-disclosure of certain risks to an informed decision is a matter for the trier of fact, a matter on which there would,in all likelihood, be medical evidence but also other evidence, including evidence from the patient or from members of his family.

It is,of course, possible that a particular patient may waive aside any question of risks and be quite prepared to submit to the surgery ortreatment, whatever they be. Such a situation presents no difficulty.

Again, it may be the case that a particular patient may, because ofemotional factors, be unable to cope with facts relevant to recommended surgery or treatment and the doctor may, in such a case, bejustified in withholding or generalizing information as to which he would otherwise be required to be more specific. [emphasis added] [83] In Ciarlariello, Cory J., writing for the court, explained that, “the test now focuses on what the patient would want toknow” and set out the modified objective standard to determine materiality (at p. 133): In deciding whether a risk is material and therefore, one which should be explained to the patient, an objective approach should be taken.

The crucial question in determining the issue is whether a reasonable person in the patient’s position would want to know of the risk. [emphasis added] [84] The law has developed significantly since Hopp, Reibl and Ciarlariello. These cases described the duty in the contextof disclosing the “nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the

performance of the operation” (Hopp at p. 210). Since then, courts have recognized the duty to inform a patient of alternative treatmentsand other material information that a reasonable person in the patient’s circumstances would want to know. In Brito v. Woolley et al.,2003 BCCA 397, 185 B.C.A.C. 1, leave to appeal to the S.C.C. ref’d, [2003] S.C.C.A.

No. 418 (QL), a case about alternative treatmentto a cesarean section, the British Columbia Court of Appeal referred to “the patient’s right to be informed of something of importance toher health” (at para. 34). [85] There are a number of other appellate decisions that have addressed the need for physicians to disclose details regardingthe nature of the procedure beyond information about risks and alternative treatments. See Zimmer and Zimmer v.

Ringrose (1981),1981 ABCA 60 , 28 A.R. 69 (C.A.), in which the physician failed to inform the plaintiff patient that the proposed method ofsterilization was “not generally accepted in the medical community” (at para. 2); Grealy v. Kuntz, [1996] B.C.J. No. 1470 (QL), in whichthe back surgery performed was “experimental in nature” (at para. 13); Reid v.

Maloney, 2011 ABCA 355 at para. 13, 515 A.R. 361,where a standard form consent for chiropractic treatment and the patient’s “understanding was incomplete and inaccurate” arising fromthe discussion about treatment; Cory at para. 17, in which the court held that information about diagnostic testing can be relevant to aconsideration of informed consent; and Prevost v. Ali et al., 2011 SKCA 50, 371 Sask.R. 166, in which the court stated that, “the duty ofdisclosure ... requires physicians to disclose not simply material risks but all material information” (at para. 50). [86] Ellen I. Picard and Gerald B.

Robertson refer to the expansion of the duty to inform in their text, Legal Liability ofDoctors and Hospitals in Canada, 4th ed. (Toronto: Thomson Carswell, 2007) (at pp. 150-152): The language in both Reibl v. Hughes and Hopp v. Lepp is couched in terms of disclosure of risks. …. However, it is now wellestablished that the duty of disclosure is not confined to risks, but extends to other material information which a reasonable patient wouldwant to have.

In particular, the patient must be informed of any available alternatives to the treatment being proposed, as well as thematerial risks associated with those alternatives, if this is something which a reasonable person in the patient’s circumstances wouldwant to know. The duty to disclose available alternatives is especially important where these are more conservative, and involve fewerrisks, than the treatment which is being proposed.

It is incumbent on the physician to disclose sufficient information to enable thepatient to place the treatment options in a proper perspective and to assess their comparative risks and benefits. [emphasis added] [87] The second step of the test addresses causation. This is the modified objective test referred to in the jurisprudence. Aplaintiff must prove that a reasonable person in the plaintiff’s circumstances would have declined the procedure or treatment had theybeen informed of the material information. See Reibl at pp. 899-900; and Arndt at para. 15. [88] Reibl was a case that concerned elective surgery.

Here the evidence is that the applicant needed the hip surgery. Incases where surgery is necessary, an additional “but for” analysis is engaged. Therefore, a plaintiff must prove that a reasonable patientin similar circumstances would have chosen the alternative treatment and that the damage would have been avoided if the alternativetreatment had been chosen. See Picard & Robertson text at p. 192. [89] As explained in Seney v.

Crooks et al., 1998 ABCA 316 at para. 98, 223 A.R. 145, having satisfied the modifiedobjective test, the question is would the patient’s condition have been better with the alternative treatment. Also see Zimmer at para. 15;Haughian v. Paine (1987), (SK CA), 55 Sask.R. 99 (C.A.), leave to appeal to S.C.C. ref’d; Malette v. Shulman (1990), (ON CA), 37 O.A.C. 281; Van Dyke v. Grey Bruce Regional Health Centre et al. (2005), (ONCA), 197 O.A.C. 336 at para. 67, leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 335 (QL); Lemay v.

Peters, 2014 NBCA 59, 425N.B.R. (2d) 336; and Brito. [90] Therefore, to prove causation, the plaintiff must prove that a reasonable person in the patient’s circumstances would nothave proceeded with the surgery. If it is a question of alternative treatment, the plaintiff must also prove that the alternative treatmentwould not have resulted in the same damage (Seney at para. 108). [91] One final comment with respect to proving causation in an alternative treatment case.

Picard & Robertson comment onhow difficult it is for a patient to do so (at p. 193): … [T]he patient may face a more difficult task where the issue is whether the alternative treatment would have been more effective.

Inthis type of case, the essence of the patient’s claim is not that the treatment caused any additional injury, but rather that the alternativetreatment would have been more effective and would have achieved a better outcome. …. [92] The authors noted that the court in Seney questioned, but did not answer, whether a plaintiff should be relieved of theonus of proving this aspect of causation and that the doctor should prove that the alternative treatment would not have made a difference.

See Picard & Robertson at p. 192 and footnote 486 at p. 193. [93] In my view, the comments of the Supreme Court of Canada in Snell v. Farrell, (SCC), [1990] 2 S.C.R.311, about inferring causation provide the necessary guidance to this difficult issue (at p. 330):

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, aninference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to thecontrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. This is, I believe,what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the ... facts” (at p. 569).

It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff’s theory of causation. Medical expertsordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.

As pointed out in Louisell,Medical Malpractice, vol. 3, the phrase “in your opinion with a reasonable degree of medical certainty,” which is the standard form ofquestion to a medical expert, is often misunderstood. …. [94] The Supreme Court of Canada explained in Snell that this is not “the burden shifting to the defendant when what ismeant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant” (at p. 330). Morerecently, the Supreme Court of Canada wrote in Ediger v.

Johnston, 2013 SCC 18 (at para. 36), [2013] 2 S.C.R. 98: The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that theplaintiff in medical malpractice cases — as in any other case — assumes the burden of proving causation on a balance of theprobabilities (pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (Snell, at p. 328; Clements,at para. 9).

The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficientevidence contrary to that which supports the plaintiff's theory of causation. In determining whether the defendant has introducedsufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330). [emphasis added] [95] Also see Tremblay v.

McLauchlan et al., 2001 BCCA 444, 155 B.C.A.C. 299, in which the British Columbia Court ofAppeal wrote (at para. 41): The burden of proof is upon the plaintiff in an action to prove causation, although a robust and pragmatic approach must be taken,considering the proof which it was in the power of one side to produce and in the other to have contradicted: Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311…. The Duty to Disclose in this Case [96] The application judge focussed his analysis solely on the question of the disclosure of material risks.

By doing so, heerred in principle for which the standard of review is correctness. This approach is “doctor-centric,” as opposed to the “patient-centric”approach called for by the jurisprudence. This error led him to conclude that the applicant’s lack of expert medical opinion evidencedefeated her application in respect of her claim for lack of informed consent. This was a palpable and overriding error. Furthermore, Iam of the view that there was evidence of risk from Dr. Hedden that should have been considered.

This was a further palpable andoverriding error. [97] The applicant’s evidence establishes that the ABC system was unlicensed, was still being assessed by Health Canadaand could only be used by a doctor in very specific circumstances, which were not the applicant’s circumstances. The application judgeassessed this evidence only in the context of his material risks analysis and not in the context of asking whether this was materialinformation that a reasonable person in the applicant’s circumstances would want to know.

In my view, this was information that a trierof fact could reasonably find to be material information that the respondent had a duty to disclose. [98] Furthermore, Dr. Hedden’s evidence establishes, at least by reasonable inference, that in 1999 the use of the ABCsystem, being a ceramic on ceramic system, had the serious risk of causing titanium shavings being released into the body and that thisrisk did not arise with the conventional polyethylene system. Therefore, a trier of fact could reasonably find that the respondent failed todisclose a material risk to the applicant.

Causation for Breach of Informed Consent in this Case [99] The issue of causation for breach of informed consent is the most difficult aspect of this appeal. This is, in part,because the facts in this case are unusual. [100] This is not like many elective surgery cases because the applicant needed hip surgery. It is also not like most alternativetreatment cases where the patient feels aggrieved because an alternate treatment was not disclosed. Nonetheless, I am of the view thatthe principles articulated in the alternative treatment cases inform the analysis that applies here.

For the applicant to be successful, shehas to demonstrate that she has a reasonable chance of success of proving the following:

i) a reasonable person in her circumstances would not have consented to the surgery if the respondent haddisclosed the use of the ABC system; and ii) but for the use of the ABC system, she would not have suffered the same damage. [101] In addressing the consent aspect of causation, the application judge again erred by focussing on the lack of expertevidence about the risks of the ABC system. As explained earlier, the risks of a surgery are not the only information that needs to bedisclosed. Other material information must be disclosed.

I am of the view that the applicant has demonstrated that she has a reasonablechance of success of demonstrating that a reasonable person in her circumstances would not have consented to the use of the ABCsystem, given it was not licensed and under a strict approval regime by Health Canada, and given the risk of titanium debris. [102] As for Dr. Hedden’s evidence, the application judge rightly noted his expertise. However, while he explained Dr.Hedden’s evidence in his reasons, he failed to give it any import for the purposes of the causation analysis.

In my view, this was apalpable and overriding error. [103] The Ontario Court of Appeal recently addressed the varying categories of expert evidence in Westerhof v. Gee Estate,2015 ONCA 206, 331 O.A.C. 129. The case concerns Rule 53.03 in the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, whichwas amended in 2010. This rule sets out the requirements for introducing the evidence of expert witnesses at trial. While this rule isdistinct to Ontario, Westerhof is instructive about how the evidence of an expert witness, such as Dr.

Hedden, may be used. [104] In Westerhof, the court distinguished among “litigation experts,” “participant experts” and “non-party experts.” Litigation experts were experts “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding.” Participant experts are those “witnesses with special expertise who give opinion evidence. ... [F]or example, treating physicians, whoform opinions based on their participation in the underlying events ... rather than because they were engaged by a party to the litigation toform an opinion” (at para. 6).

Non-party experts are those retained by non-parties, such as an insurer, which has no application here. The issue on appeal in Westerhof was whether the new rules applied only to “litigation experts” or also to “participant experts.” [105] Using these

definitions, Dr. Hedden would be a participating expert, not a litigation expert. The respondent’s position,accepted by the application judge, was that because the applicant did not have evidence from a litigation expert, her application must fail. As explained earlier, the lack of a litigation expert was critical to the dismissal of the proposed claim in negligence for breach of theduty of care because there was no evidence adduced about the applicable standard of care.

However, the lack of a litigation expert withrespect to the proposed claim for lack of informed consent need not have the same effect. [106] In Westerhof, Simmons J.A. explained that a participating expert may give expert evidence (at paras. 60-61): ... [A] witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigationmay give opinion evidence for the truth of its contents without complying with rule 53.03 where: • the opinion to be given is based on the witness’s observation of or participation in the events at issue; and • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experiencewhile observing or participating in such events.

Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of orinvolvement in the underlying facts.

Yet, describing such witnesses as “fact witnesses” risks confusion because the term “fact witness”does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they maygive opinion evidence admissible for its truth. …. [107] Simmons J.A. noted that her conclusion is consistent with the law prior to the amendments at issue, such as Marchand v.Public General Hospital Society of Chatham et al. (2000), (ON CA), 138 O.A.C. 201, in which the court referred tothe treating physician as a “witness of fact” who was “testifying about the facts of his own involvement, or the opinions that went to theexercise of his judgment” (at para. 120) (quoted at para. 68 in Westerhof). [108] When I consider Dr.

Hedden’s evidence in this context, as a participant expert testifying about the facts and his opinionsthat went to the exercise of his judgment, and consider the inferences that may be drawn from his evidence, I conclude that the applicanthas demonstrated that a trier of fact could reasonably find that, but for the use of the ABC system, she would not have suffered the samedamage. [109] Counsel for the applicant asked Dr.

Hedden a number of questions about the last paragraph of his report of January 13,2003, in which he stated that it was “imperative that we re-explore her hip as these hard on hard bearing surfaces if they do impinge willcause a tremendous amount of debris being released into the hip joint.” His answers are pertinent to the causation issue. Q: And you refer to the fact these hard on hard bearing surfaces—that’s the ceramic on ceramic—if they impinge will cause a

tremendous amount of debris being released into the joint and that can be devastating for the bone stalk? A: Right. Q: I understand that this is because ceramic is a hard component and brittle and it doesn’t adapt well to an impingement, is that right? A: Right. The impingement usually appears between the neck of the femoral component which is made of titanium and the rim of the socket which can either be ceramic - in Lauren’s case it was – she actually had a Trident cup which does have an elevated rim of titanium around the edge to try and protect it from catching on the ceramic.

So potentially she could have been catching those two titanium surfaces together. And titanium is a very bad product to have in a particular form in your joint because it destroys the bone very quickly. ... [L]ots of ceramic hips squeak. .... As soon as they had pain associated with it, that’s when we’re concerned. .... . . . . . A: If titanium rubs on the ceramic or on another titanium surface, it will generate tiny little titanium particles and that’s very very inflammatory in nature. It can cause a severe reaction in the joint itself which causes the pain.

But if you leave it, what happens is it damages the bone. And that’s--particularly in a young patient. You know, we never want to see them lose the bone around their socket, the bone around their femur, because you can’t replace that bone. Once it’s gone, it’s gone. [emphasis added] [ 110 ] Dr. Hedden explained why the ceramic components that he removed can cause debris as opposed to the polyethylene component he implanted: Q: Now, the concern with impingement when using ceramic on ceramic components is more acute than if you were using a component made of polyethylene, is that right? A: Correct.

Q: Perhaps you can explain why that is. A: Well, if you have impingement and you have a plastic insert and the neck impinges on the plastic, it will just bend--it will depress the plastic and there is no potential for that to damage the implant. So it’s much more forgiving if it does impinge. It will just bend the plastic or wear some of the plastic away and the impingement may desist after it’s worn away a little bit of plastic. But what happened when you have got a hard bearing surface … Q: Right. In addition then with the plastic it would just bend against the titanium stem-- A: Right.

Q: --as opposed to causing debris-- A: Correct.

Q: --the release of debris? [111] Dr. Hedden explained that he found titanium debris in the applicant’s right hip, its effect and how it must be removed: Q: So you found evidence of this titanium debris that you talked about-- A: Um-hum. Q: --from the impingement? Was there--I take it there was a significant amount that you could see it. And what do you mean bycomplete synovectomy? A: So the lining of a joint is called the synovium. And the synovium absorbs all those metal particles and attains a black colour. Andthat’s how you identify titanium synovitis.

And part of the surgical procedure is to remove all that synovium which is the lining--itstrips out quite easily--and that’s to debulk the titanium load from the joint. So that’s an important part of doing the revision is to takethat synovium off. [112] He also testified that the applicant required a smaller cup size and that: The smaller the cup the higher risk of dislocation and the higher risk of impingement. ... [The respondent] had a 38 cup--a 48 cup whichis quite a small cup.

And so the ability to get a stable hip without impingement is actually very difficult. …. [113] Using the robust and pragmatic approach endorsed by Snell and Ediger, I am of the view that it would be reasonable toinfer that the surgery discussed and consented to by the applicant involved the conventional polyethylene components. Furthermore, shedemonstrated through Dr. Hedden’s reports and his evidence that the ABC system caused titanium debris that would not have occurredwith the traditional polyethylene system and that the debris was extremely problematic, particularly for a young patient like theapplicant.

In my view, this evidence was sufficient for the applicant to demonstrate a reasonable chance of success that a trier of fact willfind that, but for the use of the ABC system, the applicant would not have suffered the damage caused by the debris. That, in turn, issufficient to demonstrate that but for the ABC system she would not have suffered the same damage as the treatment to which sheconsented. Decision Re: Section 14(1) [114] The respondent asserts that the application judge erred when he found that the applicant applied within the time requiredunder s. 14(1) to permit her to make her application.

In other words, the respondent takes issue with the finding that the applicantbrought her application for leave within 12 months from when she first knew or ought to have known of all material facts of a decisivecharacter upon which her proposed action is based. [115] As the application judge noted, the respondent does not take issue with the first application being filed within the 12months required under s. 14(1), given that the revision surgery was performed on July 4, 2003, and the original application was filed onJune 30, 2004 (see para. 36 reasons). [116] He rejected the respondent’s argument that the applicant had the requisite knowledge of material facts by February 4,2005, which is the date of the letter from St.

Boniface Hospital that enclosed a copy of Health Canada’s permission and special accessfor the respondent to use the ABC system. He found that, given the facts, the one year should be determined from the date of theapplicant’s letter of April 14, 2005, to Health Canada so that she could conclusively determine the identity of the device used in hersurgery. [117] The application judge referred to the leading cases of Rebizant v. Greenwood et al. (1998), (MBKB), 127 Man.R. (2d) 35 (QB); Andison v. Katz, 2012 MBCA 107, 288 Man.

R. (2d) 53; and Johnson, and explained that the applicanthad to “establish that she only became aware of a material fact within 12 months of [April 13, 2006] [the date the amended applicationwas filed]” (at para. 40). He wrote (at paras. 44-45, 47-48): With the letter of February 4, 2005, from St. Boniface Hospital, [the applicant] knew that [the respondent] requested permission forspecial access to the ABC System around the time of her first surgery, but did not know if she was the patient. This letter includedcopies of the same labels that she had received with her medical records on September 18, 2003.

On April 14, 2005, [the applicant] sent a letter to Health Canada with the labels and the statement, “... [C]ould you determine if these

devices are Trident or ABC and could you tell me exactly which of these is which. Which of these devices, if any have been approved for licensing and have national marketability.” On the same day, [the applicant] received a telephone call from Health Canada advising that the parts referred to on the labels used in the first surgery were from Osteonics ABC System and the ABC System was not licensed in Canada at the time of her first surgery. In my view, [the applicant]’s April 14, 2005 letter to Health Canada to conclusively determine the identity of the device was sincere.

It does not reflect a conscious decision or a failure to inquire with diligence, as these concepts are discussed in the case law. With the amended application filed on April 13, 2006, [the applicant] brought her application within 12 months from when she first knew or ought to have known of all material facts of a decisive character upon which her proposed action is based (i.e., that the device used was in fact the ABC System). [ 118 ] The application judge understood and applied the applicable law. The respondent’s argument raises a question of mixed fact and law.

As such, his conclusion is entitled to deference unless there is a palpable and overriding error, see Andison at para. 16 . The respondent has not persuaded me that the application judge made a palpable and overriding error to permit this court to intervene with his conclusion that the amended application was filed within the time permitted by s. 14(1) . Conclusio n [ 119 ] The application judge did not err when he concluded that the applicant had not demonstrated a reasonable chance of success for her proposed actions against the respondent in negligence for breach of the duty of care and for battery.

However, the application judge erred in his analysis with respect to the applicant’s proposed claim in negligence for lack of informed consent. I am persuaded that the applicant has demonstrated a reasonable chance of success with respect to that claim. I would not disturb the application judge’s finding under s. 14(1) . Finally, I am of the view that it would not be unjust to allow the claim to proceed, notwithstanding the extreme passage of time.

To conclude otherwise would be inconsistent with the dismissal of the respondent’s motion to dismiss her application for delay, which was not appealed by the respondent. [ 120 ] Accordingly, I would allow the applicant’s appeal in part, as explained, and grant leave for the claim against the respondent for lack of informed consent. I would award her costs of the appeal. J.A. I agree: J.A. I agree: J.A.