Zoerb v Saskatoon Regional Health Authority, 2022 SKCA 111

Court of Appeal for Saskatchewan Docket: CACV3772 Citation: Zoerb v Saskatoon Regional Health Authority , 2022 SKCA 111 Date: 2022-10-05 Between: Shannon Zoerb Appellant/Respondent (Plaintiff) And Saskatoon Regional Health Authority and Dr. Henry Block Respondents/Appellants (Defendants) Before: Ottenbreit, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Tholl On appeal from: 2021 SKQB 7 , Saskatoon Appeal heard: December 7, 2021 Counsel: Robert Kennedy, K.C. for Shannon Zoerb Evert Van Olst, K.C. for Saskatoon Regional Health Authority Michelle Ouellette, K.C. and Anita Fraser for Dr. Henry Block Barrington-Foote J.A. I. INTRODUCTION [ 1 ] In 1990, Dr. Henry Block, who was then employed by the Saskatoon Regional Health Authority [SRHA] as a general pathologist at Saskatoon City Hospital, analyzed a tissue specimen taken from a lesion in Shannon Zoerb’s mouth [Tissue Specimen]. He did so in response to a request by an oral surgeon, Dr.

Jack Shiffman, to “rule out ameloblastoma right mandible”. On April 27, 1990, Dr. Block authored a report [Block report] which diagnosed the lesion as a radicular cyst [Block diagnosis]. A radicular cyst is a cyst that arises from the root of the tooth due to inflammation. [ 2 ] In the years following that diagnosis, Ms. Zoerb suffered repeatedly from a variety of oral and dental problems, including the development of abscesses. In 2007, a lesion that had formed on the right side of Ms. Zoerb’s mandible was biopsied.

The tissue taken in the biopsy was identified as an ameloblastoma by an oral pathologist at the University of Saskatchewan College of Dentistry. The oral pathologist also reviewed slides taken from the Tissue Specimen, and concluded that it was an ameloblastoma, not a radicular cyst [ameloblastoma diagnosis]. [ 3 ] An ameloblastoma is a rare and an aggressive benign tumor. If it had been diagnosed in 1990, Ms. Zoerb would have undergone surgery to prevent the further growth of that tumor.

Due to the incorrect Block diagnosis, she underwent more invasive surgery involving the removal and reconstruction of a large portion of her jaw in 2007. [ 4 ] As a result of these events, Ms. Zoerb commenced an action in the Court of Queen’s Bench for Saskatchewan on January 21, 2009. She alleged that Dr. Block had been negligent in his pathological examination of the Tissue Specimen and that the SRHA was vicariously liable for that negligence. In 2019, Ms. Zoerb on the one hand, and Dr. Block and the SRHA on the other, filed applications for

summary judgment. [ 5 ] In a January 11, 2021 decision [Decision], a Chambers judge concluded that Dr. Block and the SRHA “did not breach the standard of care they owed to [Ms. Zoerb]” and dismissed her claim (at para 70). In addition, the Chambers judge held that Ms. Zoerb’s claim against Dr. Block should be dismissed, as the limitation period specified in s. 72 of The Medical Profession Act, 1981 , SS 1980-81, c M-10.1 , had expired. However, he found that the two-year limitation period fixed by The Limitations Act , SS 2004, c L-16.1 , that applied to Ms.

Zoerb’s claim against the SRHA had not expired when she commenced her action and, as a result, denied the application that it be dismissed on that basis. [ 6 ] Ms. Zoerb has appealed the decision that her action be dismissed, alleging that the Chambers judge erred in finding that Dr. Block did not breach the standard of care. Dr. Block and the SRHA have cross-appealed, asserting that the Chambers judge erred in concluding that the limitation period governing Ms. Zoerb’s claim against the SRHA had not expired.

They also submit that the Chambers judge erred in declining to award costs in their favour and in providing no reasons for that aspect of the Decision. [ 7 ] For the reasons that follow, I have concluded that Ms. Zoerb’s appeal should be dismissed and that the cross-appeal of the costs award should be allowed. In light of this, it is unnecessary to decide the cross-appeal relating to the limitations issue. II. BACKGROUND [ 8 ] The evidence before the Chambers judge on the

summary judgment applications included affidavits sworn by Dr. Block, Ms. Zoerb and Dr. Shiffman, and an agreed statement of facts. The agreed statement of facts appended medical records prepared by and transcripts from the examinations of physicians and dentists who played a role in the diagnosis and treatment of Ms. Zoerb between 1990 and 2007, those being Dr. H. Trafananko, her dentist during the period from 1990 to 1999; Dr. Shiffman; Dr. Dale Ardell, her family physician; Dr. Lange, her dentist from 2001 to 2007; and Dr. David Stevens, an otolaryngologist.

[ 9 ] There was also an affidavit and transcript from the examination of Dr. Edward Alport, a Regina general pathologist, and two affidavits and a transcript from the examination of Dr. William McGaw, a professor of oral medicine and pathology at the College of Dentistry at the University of Alberta. Dr. McGaw was qualified in both medicine and dentistry, but his training and practice in oral pathology was from the dental side. Dr. Alport and Dr. McGaw provided expert evidence that was central to the Decision. [ 10 ] The events which led to the Block diagnosis are summarized in the agreed statement of facts.

On March 23, 1990, Ms. Zoerb saw Dr. Trafananko as a result of swelling of her jaw. He diagnosed her with a severe abscess over the second molar in her lower right jaw. The molar was excised, but the surrounding tissue did not heal. Dr. Trafananko accordingly referred Ms. Zoerb to Dr. Shiffman. [ 11 ] On April 25, 1990, Dr. Shiffman performed surgery on Ms. Zoerb at Saskatoon City Hospital, resecting a lesion from her right mandible. He also took the Tissue Specimen, which was submitted to the Pathology Department at Saskatoon City Hospital for analysis. The Tissue Specimen was examined by Dr.

Block, who authored the Block report which identified it as being from “a large radicular cyst and dense scarring”. Shortly after, Ms. Zoerb was told that the growth removed from her right mandible was not an ameloblastoma and/or cancer. [ 12 ] Ms. Zoerb attended follow-up appointments with Dr. Shiffman for approximately 18 months after the 1990 surgery. He advised her that “if something came up” she should return, as the growth could recur. As it happened, she suffered from recurring issues with her mouth and teeth. In June of 1999, she contacted Dr.

Trafananko about an abscess that had formed in the area where the surgery had been performed. In June of 2001, Dr. Lange removed 12 of her upper teeth and fitted her with an upper denture. She did not undergo x-rays at that time, as she was pregnant. [ 13 ] Between 2001 and 2006, Ms. Zoerb saw Dr. Ardell on seven occasions for what was described as “dental abscesses”, gingivitis and swelling on her right lower jaw. Dr. Ardell often prescribed an antibiotic, which would remedy the swelling. He also advised her on four of those occasions to see a dentist, but she failed to do so. In January of 2007, Ms.

Zoerb saw Dr. Ardell about persistent swelling on the right lower jaw which would not subside with antibiotics. He referred her to Dr. Stevens, who ordered a CT scan on February 7, 2007. She saw Dr. Lange on February 12, 2007, who took a panoramic x-ray of her mouth and referred her to Dr. Frank Hohn, an oral surgeon in Saskatoon. [ 14 ] Dr. Hohn biopsied a lesion on the right side of her mandible. A specimen from that biopsy was sent to Dr. Maria Copete, an oral pathologist, for analysis, resulting in the ameloblastoma diagnosis on February 21, 2007. At Dr. Hohn’s request, Dr.

Copete also reviewed the Tissue Specimen and concluded that it was an ameloblastoma. The parties agree that was a correct diagnosis. In October of 2007, Ms. Zoerb, having been referred to specialists in Alberta, underwent reconstructive surgery. A portion of her fibula was harvested and grafted to reconstruct her right mandible. [ 15 ] Dr. Block described his training and experience in his affidavit. He graduated with a medical degree in 1952 and completed his residency and was qualified by the Royal College of Physicians and Surgeons of Canada to practice as a general pathologist in 1959.

As a general pathologist, he was licensed and qualified to analyze tissue samples from every part of the human body, including the oral cavity. He worked in that capacity at Saskatoon City Hospital from 1959 to 1993 and was Chief of the Department of Pathology for 26 of those 34 years. [ 16 ] Dr. Block deposed that he did not remember writing the Block report or examining the Tissue Specimen. His evidence as to what he did was accordingly based on his ordinary practice at the time, and was as follows: 27.

In accordance with my ordinary practice, 1 would have reviewed the Operative Report before I examined the Tissue Specimen. In reviewing the Operative Report, I would have noted Dr. Shiffman’s request that a pathologist “rule out ameloblastoma of the right mandible”. I also would have noted where the Tissue Specimen originated from. 28. In April 1990, I was familiar with ameloblastomas in general terms, but I do not recall having any experience with amelobastomas. Oral tumors are rare, and I was aware that only about one percent of all oral tumors are ameloblastomas. 29. Because Dr.

Shiffman specifically asked me to “rule out ameloblastoma” for the Tissue Specimen, in accordance with my practice, I would have researched the histological features of ameloblastomas before I examined the Tissue Specimen. In particular, I would have consulted my textbooks on this point, which would have contained photographs and descriptions of ameloblastoma. In 1990, I had access to textbooks with photographs of ameloblastomas and it was my practice to review such photographs closely if I was undertaking an analysis of this nature (i.e., ruling out a particular pathology).

I would not have relied solely on written descriptions of ameloblastomas in textbooks without the benefit of photographs. 30. Thereafter, I would have examined slides of the Tissue Specimen under my microscope. It was my ordinary practice to carefully examine the whole area of the Tissue Specimen represented on the slide. After I completed my analysis of the Tissue Specimen, I likely consulted the other pathologist at City Hospital or the pathologist at University Hospital as to my diagnosis; and dictated the Tissue Report outlining my assessment of the slides. … [ 17 ] Dr.

Block also provided additional details as to his usual practice relating to consultations with other pathologists: 43 . Throughout my tenure as a general pathologist, I would consult other pathologists on occasion, regarding tissue samples I was analyzing . There were no formal policies or procedures at City Hospital governing when I could consult with another pathologist, or how I should go about securing a consultation. 44. If I wanted to consult another pathologist in 1990, I likely would have consulted the other general pathologist at City Hospital.

I would have provided him with the slides in question, and a s ked for his opinion. If we arrived at the same diagnosis, this wou l d likely be the extent of th e consultation . If we arrived at different diagnoses, however, I likely would hav e provided the slides to the pathologist at University Hospital for a further consultation. 45 . Depending on my comfort with a diagnosis, I could also seek a consultation from one of two external sources . I could s e nd the slides in question to th e Tumor R e gistry in Ottawa, Ontario for a consultation. Alternatively, I could send the slides to the Armed Forces

Institute of Pathology (AFIP) in Washington D .C. for consultation. The AFIP had a very good atlas of tumour pathology with extensive photographs of various kinds of tumours. [ 18 ] It was Dr. Block’s evidence that he did not believe that he had consulted with one of these external sources in this case. As to the internal consultation, he deposed as follows: 48 . I do not rememb e r whether I requested an internal con s ultation concerning the Tissue Specimen, but based on my ordinary practice, l likely would have sought such a consultation.

I likely would ha v e consulted the other pathologist at City Hospital or the patholog is t at University Hospital, particularly because Dr . Sh iffman r equest e d that I rul e out a tumor (i.e., amelo blastoma) and I identified the Tissue Specimen a s a radicular cyst. III. THE DECISION [ 19 ] The Chambers judge began the Decision by stating the two questions posed by the parties in the agreed statement of facts, as follows: 1. Is the plaintiff’s claim against the defendants time-barred by the strictures in the various relevant statutes? 2. Did the defendant, Dr.

Henry Block…breach the standard of care of a general pathologist at the time when he concluded, on April 27, 1990, that a tissue specimen from the plaintiff was a radicular cyst? (at para 1) [ 20 ] The Chambers judge noted that the question of whether Dr. Block was providing professional services to Ms. Zoerb within the meaning of s. 72 of The Medical Profession Act, 1981 – which was relevant to the limitations issue – had been considered, but not decided, in Zoerb v Saskatoon Regional Health Authority , 2009 SKQB 487 , 355 Sask R 46 [ Zoerb #1 ].

He then briefly summarized the background facts outlined in the agreed statement of facts, and having done so, turned to the limitations issues arising from the first question. [ 21 ] The Chambers judge dealt first with the limitation relating to the claim against Dr. Block, concluding that he was providing professional services within the meaning of s. 72 and that Ms. Zoerb’s claim against him was accordingly barred by that provision. However, he then noted that this did not dispose of the action, as it had been decided in Zoerb #1 that the SRHA was entitled to pursue its crossclaim against Dr. Block.

Accordingly, the Chambers judge addressed the question of whether the limitation period had expired in relation to Ms. Zoerb’s action against the SRHA. He found that the SRHA claim was not discoverable by Ms. Zoerb until February 21, 2007, being the date of the ameloblastoma diagnosis. As a result, the two-year limitation period specified in s. 5 of The Limitations Act had not expired when Ms. Zoerb commenced the action on January 21, 2009. [ 22 ] Having disposed of the limitations issues, the Chambers judge turned to the second question. He dealt first with Dr.

Alport’s evidence, noting that he had practised as a general pathologist in the Regina Qu’Appelle Health Region for over 35 years, and was Medical Head of the Department of Pathology and Laboratory Medicine for that Region. He reproduced (at para 48) the

summary in Dr. Block’s brief of Dr. Alport’s analysis, including the following: 51. In his expert report, Dr. Alport opines that Dr. Block did not breach the standard of care in 1990 when he diagnosed the Tissue Specimen as a radicular cyst. Dr. Alport makes several key points in support of his opinion. He notes that: (

a) Ameloblastoma is an extremely rare tumour. The annual incidence of ameloblastoma in the Caucasian population is well below one in one million. (

b) The pathologies of radicular cysts and ameloblastoma have similar and overlapping histologic features, and the pathology of cysts and tumors in the jaw is a difficult area for all pathologists. (

c) When faced with differential diagnosis and overlapping clinical and pathological findings, pathologists tend to select the statistically more probably [ sic ] diagnosis. (

d) The Tissue Report authored by Dr. Block is a good descriptive report and it renders a diagnosis that is consistent with the Tissue Specimen’s clinical and radiologic features. 52. …Dr. Alport acknowledges that the Tissue Specimen is an ameloblastoma. That said, he does not regard Dr. Block’s diagnosis of radicular cysts, as a breach of the standard of care in 1990. 53. In his Affidavit sworn October 17, 2017, Dr. Alport addresses Dr. Block’s practice in 1990 concerning consultations with other pathologists about tissue samples that he was analyzing. Dr. Alport states that “the practice described by Dr.

Block meets the standard of care of a general pathologist practising in Saskatchewan in 1990. It is similar to the practice of most pathologists practising in Regina in 1990, myself included. 54. Dr. Alport was cross-examined by the Plaintiff on December 12, 2019, and he did not waiver in his opinion that there was no breach of the standard of care. Key evidence from his cross-examination is summarized as follows: (

a) Practically speaking, general pathologists are “whole body pathologists,” trained in both clinical pathology and anatomic pathology. Anatomic pathology includes surgical pathology (i.e., examining surgical specimens), autopsy and cytology. (

b) General pathologists practice “broad spectrum pathology”. They are qualified to analyze tissue specimens from the whole body, including the oral cavity. (

c) It is “very, very common” for general pathologists to be asked by the referring physician to rule something out. Further, they are often

asked to “rule out rather rare and esoteric things”. (

d) General pathologists commonly have no experience or exposure to ameloblastoma, and oral tissue samples in general. That said, they receive rare lesions for analysis and refer to textbooks for the pathologic features. … (

g) Dr. Block’s general understanding of ameloblastoma in 1990 (as described in his Affidavit) is consistent with that of other general pathologists in 1990. (

h) The practice followed by Dr. Block in terms of analyzing the Tissue Specimen was an appropriate and acceptable practice for a general pathologist in 1990. This practice included researching ameloblastomas in textbooks when asked to rule out ameloblastoma. … [ 23 ] Finally, the Chambers judge summarized Dr. Alport’s conclusions as follows: [49] In sum, Dr. Alport says that Dr. Block followed the procedures that he should have and came to a reasonable conclusion. Although Dr. Block was wrong, he was not negligent. More to the point, Dr. Alport says Dr.

Block met the standard of care required of him in 1990. [ 24 ] After rejecting an application by Dr. Block to strike portions of Dr. McGaw’s affidavit, the Chambers judge stated that all of Dr. McGaw’s and Dr. Alport’s evidence was “received and considered”, and that it was “just a question of the weight given and which expert’s opinion carries the day in terms of determining the standard of care” (at para 53). He commented that some of the disagreement between the parties resulted from the fact that Dr.

McGaw is an oral pathologist who was trained and practised as a dental professional, rather than a general pathologist like Drs. Alport and Block. He then quoted a portion of Ms. Zoerb’s brief that dealt with the nature of and significant differences in practice between these two kinds of specialists. It stated, among other things, that the process used by general pathologists and oral pathologists in analyzing tissue samples from the mouth and jaw are the same, and ended with the following conclusions: 13.

The only meaningful difference is, accordingly, their familiarity and experience in dealing with tissues from the more restricted area of the human body which is involved in this case. 14. It follows that the only aspect of the standard of care analysis which is truly meaningful is that which focuses upon the pathologist’s experience in the doing , not the fact that Dr. McGaw’s training, and specialist certification comes through the dental profession route and not the physician route. (Decision at para 55, emphasis in original) [ 25 ] The Chambers judge then turned to Dr.

McGaw’s evidence, citing the following portion of Dr. McGaw’s report of July 27, 2017: …There is also evidence of involvement of the connective tissue wall of the tumour (‘mural involvement’) in the form of typical islands of ameloblastoma . I feel that the combination of the features of the cyst lining (described above), together with the presence of obvious islands of ameloblastoma within the cyst wall, should have been recognized by any pathologist in 1990 . Dr.

Shiffman’s findings at the time of surgery led him to assign a post-operative diagnosis of ‘Rule out ameloblastoma right mandible’ and confirm/exclude this diagnosis . If there was any equivocation based on his review of the pathology, the onus would be on the reporting pathologist to seek additional opinions on the case . (Decision at para 58, emphasis in original) [ 26 ] The Chambers judge then reproduced the arguments that had been advanced by Ms. Zoerb, including her claim that a critical subsidiary issue arose because Dr. Shiffman had asked Dr.

Block to “rule out [his diagnosis of] ameloblastoma” (Decision at para 60). On that note, Ms. Zoerb had argued that Dr. Block had breached the standard of care by taking on an assignment he did not have the experience to undertake, and by failing to refer it to someone who did. She had also asserted that if Dr. Block’s conclusions and actions were within the standard of care, that standard would itself be “structurally and institutionally negligent” , given that Dr.

Alport had opined that “ ‘many, if not most’ general pathologists…would have missed the clearly present ameloblast cells in the tissue slides” (Decision at para 60). [ 27 ] The Chambers judge dealt next with the duty to refer, quoting once again a portion of Ms. Zoerb’s brief which he characterized as a

summary of her position: a. The case law makes it abundantly clear that, in general terms, lack of experience is no defence on a standard of care issue, rather, the doctor or the dentist, or indeed any other professional, who is confronted with a task for which he is singularly ill equipped to deal with because of his lack of exposure and experience in the area, must refer the matter on to someone who can appropriately deal with the task or issue at hand; … d. Dr.

Block did not recognize and diagnose an ameloblastoma because he did not recognize the presence of ameloblast cells, the only characteristic marker of an ameloblastoma, a marker which is the only way to diagnose the ameloblastoma. In doing so he was negligent because his response to Dr. Shiffman’s specific direction to “rule out ameloblastoma” fell below the appropriate standard of care. It is clear on the evidence that Dr. Block did not have the necessary experience to answer the question . (Decision at para 64, emphasis in original)

[28] The Chambers judge then noted that Dr. Block had conceded that he had misdiagnosed the Tissue Specimen, but “makes thecase that he went about it the right way.

The test for the standard of care is not perfection” (at para 65). [29] Having outlined the parties’ arguments, the Chambers judge reviewed leading cases that he described as “apropos to the issueof determining the standard of care”, including Wilson v Swanson, (SCC), [1956] SCR 804 [Wilson]; Carlsen vSoutherland, 2006 BCCA 214, 53 BCLR (4th) 35 [Carlsen]; Armstrong v Royal Victoria Hospital, 2019 ONCA 963, 452 DLR (4th) 555;Gent v Wilson (1956), (ON CA), 2 DLR (2d) 160 (Ont CA); McCormick v Marcotte, (SCC), [1972]SCR 18 [McCormick]; and ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 [ter Neuzen] (at para 66).

He emphasized keyprinciples that he considered to have been affirmed by those cases, including the following (at para 66): (

a) The court applies an objective standard that is concerned with whether the preponderance of opinion would have beencontrary to the decision at issue. (

b) The standard of care expected of a physician is not a standard of perfection. (

c) A professional generally does not warrant the outcome, but only that they will use reasonable care and skill. (

d) When determining whether the treatment or diagnosis at issue falls within the standard of care, the comparison is to theobjective “reasonable physician” standard, with reference to the circumstances of each particular case and patient at the material time. Thisprinciple is set out in McCormick at page 21: The test of reasonable care applies in medical malpractice cases as in other cases where fault is alleged. The medical man must possessand use, that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases.

Whetheror not such test has been met depends, of course, upon the particular circumstances of each case. (e) “The standard practice will also be pertinent in assessing whether there has been a breach of the standard of care.

In mostcases, if not always, it is a complete answer to an allegation of negligence for the defendant to show that he acted in accordance withstandard recognized medical practice” – unless the standard practice is demonstrably unsafe or dangerous. (f) “[C]onformity with common practice will, absent a situation where the standard practice is ‘fraught with obvious risk’,generally exonerate a physician from a complaint of negligence. … [A] practice will only be considered ‘fraught with obvious risk’ if‘[a]nyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise’” (citingSopinka J. in ter Neuzen). [30] Finally, the Chambers judge summarized his conclusions.

He commented that the evidence of both experts was very helpful,but found as follows: [68] …[F]or the reasons set out in Dr. Block’s brief, I associate myself and adopt the opinion of Dr. Alport as to where to set thestandard of care in 1990. I conclude Dr. Alport is closer to the facts and has a truer picture of the reality lived by Dr. Block in 1990 whenhe was conducting the analysis of the Tissue Specimen. [69] In 1990, Dr. Block did everything he was supposed to do. He met the standards of the day but was, nonetheless, incorrect in hisanalysis.

As noted, perfection is not the test. [70] As a result, I conclude Dr. Block and, per force, the Health Authority did not breach the standard of care they owed to theplaintiff. The plaintiff’s claim is dismissed. I decline to award costs. IV. ANALYSIS A. Grounds of Appeal and Standards of Review 1. Grounds of Appeal [31] In her factum, Ms. Zoerb asserts that she has appealed on the ground that it was an error in principle for the Chambers judge tosimply adopt Dr. Alport’s opinion, as Dr.

Alport, and thus the Chambers judge, failed to substantively analyze and address the question ofwhether, in all the circumstances and as asserted by Dr. McGaw, Dr. Block had a duty to refer the task to a more experienced pathologist.She contends that he had such a duty and failed to discharge it. [32] Dr. Shiffman’s rule-out request plays a prominent

part in Ms. Zoerb’s submission. Indeed, she characterizes the question ofwhether Dr. Block met the standard of care in responding to Dr. Shiffman’s request as “a completely separate question” than thataddressed by Dr. Alport. She contends that the issue the Chambers judge should have decided, given Dr. Shiffman’s rule-out request, waswhether it was reasonable for Dr. Block to address his direction to rule out an ameloblastoma without a formal consultation with, orreferral to, a pathologist who had the required experience with oral tumors, and in particular, ameloblastoma. [33] Ms. Zoerb does not claim that Dr.

Block erred by failing to diagnose an ameloblastoma. Rather, she contends that he erred byfailing to recognize that he did not have the training or experience to undertake the differential diagnosis requested by Dr. Shiffman. Shedescribes that as an error in applying the standard of care. However, she also argues – effectively in the alternative – that if the “general”standard of care adopted by the Chambers judge based on Dr. Alport’s opinion was the standard of care, and Dr. Block complied with it,the standard of care was itself negligent, and a different standard of care which reflected Dr.

Shiffman’s rule-out request should have beenapplied. [34] Regardless of whether the issue is approached as relating to the application of the standard of care, or its content, Ms. Zoerb

relies heavily on Dr. Alport’s evidence that Dr. Block, like most general pathologists practising in Saskatchewan at the time, had noexperience with ameloblastomas. In her view, that meant Dr. Block was unable to and should have known he could not definitivelyrespond to Dr. Shiffman’s request. 2. Standard of Review [35] It is Ms. Zoerb’s position that, absent an error in principle, an appellate court may only intervene on an appeal from a

summaryjudgment decision if there has been a palpable and overriding error. She cites Hoffart v Cateri, 2020 SKCA 50, [2020] 7 WWR 34; andHryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [Hryniak], as authority for that proposition. [36] Dr. Block and the SRHA agree that this standard applies. They also argue that the appeal is focused on the weight accorded toDr. Alport’s evidence as to the standard of care.

They note that in Silzer v Saskatchewan Government Insurance, 2021 SKCA 59 atpara 62, this Court affirmed that “the assessment of the significance of opinion evidence – or the weight assigned to it by a trier of fact – isa question of fact, not law, which calls for deference on appeal”. [37] I agree in substance with the parties. The standard of review on an appeal of a

summary judgment depends on the matters atissue. The usual appellate standards specified in Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 [Housen], apply, and were nicelysummarized by Caldwell J.A. in the context of the

summary judgment appeal in Deren v SaskPower, 2017 SKCA 104: [41] …In an appeal of this nature, questions of law are assessed on the basis of the standard of correctness: Housen v Nikolaisen, 2002SCC 33, [2002] 2 SCR 235; H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401. Questions of fact are assessed on thepalpable and overriding error standard of review: Housen v Nikolaisen; Nelson (City) v Mowatt, 2017 SCC 8, 406 DLR (4th) 1.

Absent anextricable question of law, questions of mixed fact and law are also assessed on the palpable and overriding error standard: Housen vNikolaisen; Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 [Hryniak]; Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53,[2014] 2 SCR 633 [Sattva]; Scott v Vanston, 2016 SKCA 75, [2016] 9 WWR 256. The question of whether there exists a genuine issue fortrial in a

summary judgment application is one of mixed fact and law, reviewable on appeal on the palpable and overriding error standard:Hryniak. [38] In Hess v Thomas Estate, 2019 SKCA 26 at para 29, 433 DLR (4th) 60, this Court confirmed that absent an error of law, whichis reviewable on a correctness standard, the exercise of powers under the

summary judgment rules should not be overturned absentpalpable and overriding error. The palpable and overriding standard applies where the alleged error relates to a decision as to theprocedural matters that arise in the

summary judgment process, such as determining whether, as in Hess, there is a genuine issue for trial,or whether it is in the interests of justice to exercise the fact-finding powers specified in Rule 7-5(2)(

b) of The Queen’s Bench Rules:Hryniak; Hess at para 29. Absent an error of law, it also applies where the alleged error does not relate to the

summary judgment process,but to an error allegedly made in the course of deciding the substance of the

summary judgment application. [39] How, then, are these standards engaged by the grounds of appeal identified by Ms. Zoerb? She alleges that the Chambers judgeerred in relation to either the application or the identification of the standard of care. The standards of review applicable to these issueswere described by Iacobucci and Major JJ. in Housen, as follows: [36] To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question ofmixed fact and law. Matters of mixed fact and law lie along a spectrum.

Where, for instance, an error with respect to a finding ofnegligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similarerror in principle, such an error can be characterized as an error of law, subject to a standard of correctness. … [37] …In our view, it is settled law that the determination of whether or not the standard of care was met by the defendant involves theapplication of a legal standard to a set of facts, a question of mixed fact and law.

This question is subject to a standard of palpable andoverriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of thestandard or its application, in which case the error may amount to an error of law. [40] In confirming these standards, Iacobucci and Major JJ. followed St-Jean v Mercier, 2002 SCC 15, [2002] 1 SCR 491 [St-Jean],including the statement by Gonthier J. that “the standard of care is normative and is a question of law within the normal purview of boththe trial and appellate courts” (St-Jean at para 49). [41] These standards of review have frequently been applied where the issue on appeal is an alleged error in the identification orapplication of the standard of care: see, for example, LR v Semenjuk, 2021 ABCA 318 at paras 21–22, 31 Alta LR (7th) 92; Peppler Estatev Lee, 2020 ABCA 282 at para 29, [2020] 11 WWR 601; Paur v Providence Health Care, 2017 BCCA 161 at para 49, [2017] 8 WWR639; Briante v Vancouver Island Health Authority, 2017 BCCA 148, [2017] 6 WWR 465.

B. Law: Physician Negligence and the Standard of Care [42] In order to succeed in this action, Ms. Zoerb has to prove that Dr. Block owed her a duty of care; that he breached the standardof care established by law; that she suffered an injury or loss; and that Dr. Block’s breach of the standard of care was the actual and legalcause of her injury or loss.

The central principles that apply in establishing the standard of care were summarized by Sopinka J. in terNeuzen, as follows: [33] It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligentdoctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must beassessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expectedof professionals in Canada, in that field.

A specialist, such as the respondent, who holds himself out as possessing a special degree of skilland knowledge, must exercise the degree of skill of an average specialist in his field: see Wilson v. Swanson, (SCC), [1956]S.C.R. 804 at p. 817, Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351, at p. 361, and McCormick v.Marcotte, (SCC), [1972] S.C.R. 18.

[43] These principles reflect the fact that, as Gonthier J. noted in St-Jean at paragraph 53, it is erroneous to focus on the result ratherthan the means, as “[p]rofessionals have an obligation of means, not an obligation of result”. That obligation is to use reasonable care andskill in applying those means; it is not a standard of perfection: Carlsen at paras 13–15; Wilson at 812. [44] I note the succinct

summary of these principles by Kalmakoff J.A. in Hander v Kumar, 2022 SKCA 33 at para 39, 467 DLR(4th) 726. [45] As to the role of standard professional practice in determining the standard of care – a question at the heart of this appeal –Sopinka J. confirmed as follows in ter Neuzen: [38] It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he orshe will not be found to be negligent.

This is because courts do not ordinarily have the expertise to tell professionals that they are notbehaving appropriately in their field. … [46] Accordingly, the standard practice generally is the legal standard. However, as Sopinka J. explained, compliance with thestandard practice does not always preclude a finding of negligence. As he put the matter: [43] …[C]onformity with standard practice in a profession does not necessarily insulate a doctor from negligence where the standardpractice itself is negligent.

The question that remains is under what circumstances will a professional standard practice be judgednegligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary personwho has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice isfraught with danger, a judge or a jury may find that the practice is itself negligent. [47] The question of whether the standard practice falls within this ter Neuzen exception is a question of law.

If it is found to benegligent in this way, the trier of fact can determine the standard of care on the basis of common sense: Samms v Moolla, 2019 ONCA220; ter Neuzen at para 52. [48] In Gerald B. Robertson & Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed (Toronto: ThomsonReuters, 2017) at 453–454 [Robertson], the learned authors comment that, notwithstanding the confirmation in ter Neuzen that courts arenot bound to deny a claim where a physician has acted in accordance with standard practice, courts have continued to be very reluctant tofind negligence in such circumstances.

They refer, by way of example, to Tailleur v Sendziak, 1999 ABCA 2, 228 AR 274; Nattrass vWeber, 2010 ABCA 64 at paras 38–41, 316 DLR (4th) 666; and Smith v Kane, 2021 ONCA 634 at paras 95–96. In each of those cases, theCourt found that the ter Neuzen exception did not apply, as expert evidence was necessary to identify the risk or to set the standard of care. [49] As Robertson notes, this cautious approach “is not surprising, given the Supreme Court’s statement in [ter Neuzen] thatcompliance with accepted practice is generally conclusive evidence of reasonable care” (at 454, emphasis in original).

I would agree, notonly as a result of that statement, but due to the underlying reason that it is so; that is, because allegations of misconduct by a professionalwill generally engage “uncertain questions of medical treatment or complex, scientific or highly technical matters” (ter Neuzen at para 51)that require expert evidence because they are “beyond the ken” of a judge or jury (ter Neuzen at para 55). [50] The standard of care also includes a duty to refer in some circumstances. That duty may, depending on the facts, be met byconsulting with a colleague.

Robertson notes that while there is no “absolute test” as to when that duty is engaged, the case law suggeststhat the circumstances in which it is indicated include, among other things, where the physician is unable to diagnose the patient’scondition, or the patient needs treatment that the physician is not competent or sufficiently experienced to give (at 393–394).

The duty torefer due to lack of sufficient experience has also been described as a duty for the physician to guard against their own inexperience: Crickv Mohan (1993), (AB KB), 142 AR 281 (QB) at para 58; Williams v Rosenstock, 2020 ABQB 303 at para 105;Crawford v Penney, (Ont Sup Ct) at para 230. [51] The decision as to whether to refer a patient is a matter of clinical judgment, the reasonableness of which must be assessed inlight of the surrounding circumstances (Robertson at 397), including factors such as time and risk.

Further, in considering whether aphysician has breached the duty to refer, courts must depend on expert evidence to set the boundaries of the overlapping limits of theprofessional competence of one physician or speciality and another (Robertson at 398). On the last point, see, for example, Bollman vSoenen, 2012 ONSC 7090; Antoine v Morgan Estate, [2001] OJ No 2665 (QL) (Sup Ct). [52] I would finally note that there is also case law that supports the proposition that locality is sometimes relevant in determiningthe standard of care.

In Wilson, for example, Abbott J. stated that “the medical man must possess and use that reasonable degree oflearning and skill ordinarily possessed by practitioners in similar communities in similar cases” (at 817). That principle was reiterated inMcCormick and cited by the Chambers judge. See also, for example, Grivicic v Alberta Health Services (Tom Baker Cancer Centre), 2017ABCA 246 at para 34, 55 Alta LR (6th) 281; Brooks v Habib, 2019 BCSC 1398 at para 204; Leckie v Chaiton, 2021 ONSC 7770 atpara 25. [53] That does not mean, however, that local practice is conclusive.

A lack of facilities, specialized training or experience – such asthat which would more often occur in a rural or small town setting due to limited facilities and lack of specialists – does not necessarilyjustify a lower standard of care. The duty to refer is part of the standard of care, and access to external resources must be taken intoaccount in that context. This principle has long been recognized in Canada. In Town v Archer (1902), 4 OLR 383 (QL) (H Ct

J) at para 17,for example, Falconbridge C.J. made the point this way: It has been held in some American cases that the locality in which a medical man practises is to be taken into account, and that a manpractising in a small village or rural district is not to be expected to exercise the high degree of skill of one having the opportunitiesafforded by a large city; and that he is bound to exercise the average degree of skill possessed by the profession in such localitiesgenerally.

I should hesitate to lay down the law in that way: all the men practising in a given locality might be equally ignorant and behindthe times, and regard must be had to the present advanced state of the profession and to the easy means of communication with, and accessto, the large centres of education and science. For example; Port Perry is a two hours’ journey from a city of a quarter of a millioninhabitants, with three medical colleges and numerous hospitals.

[ 54 ] This approach is based on the ability of a rural physician to readily access external resources when Archer was decided in 1902. As a rule, access to useful resources was far greater in 1990, given the remarkable advances in medical training, specialization, and the ability to communicate with a far larger and more expert community of professionals. That does not mean, however, that the standard of care in 1990 demanded that every difficult case required consultation with the best external resource.

To return to first principles, the standard of care was that of the “reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field” and for a specialist such as Dr. Block, “the degree of skill of an average specialist in his field” ( ter Neuzen at para 33 ). That standard also applies to the decision as to whether consultation with external sources is required. [ 55 ] I will now turn to the application of these principles in the circumstances of Ms. Zoerb’s case. C. Did Dr.

Block breach the standard of care of a general pathologist in concluding that the Tissue Specimen was from a radicular cyst? [ 56 ] I would first note that I agree with Ms. Zoerb that Dr. Shiffman’s rule-out request was a relevant factor in determining the standard of care. Indeed, I do not understand Dr. Block to suggest otherwise. To the contrary, he deposed that “[ b]ecause Dr.

Shiffman specifically asked [him] to ‘rule out ameloblastoma ’” (emphasis added), his usual practice would have been to consult his textbooks, including a close review of photographs of ameloblastoma, before carefully examining the whole area of the Tissue Specimen represented on the slide under his microscope. He also attested to the fact that, in this case, he likely consulted with the other general pathologist at Saskatoon City Hospital or the general pathologist at University Hospital “ particularly because Dr.

Shiffman requested that [he] rule out a tumor (i.e., ameloblastoma) and [he] identified the Tissue Specimen as a radicular cyst ” (emphasis added). Further, it was his evidence that “[d]epending on [his] comfort with a diagnosis”, he could consult with external sources. [ 57 ] This evidence explicitly confirms that Dr. Block, as a matter of standard practice, took account of rule-out requests such as that made by Dr. Shiffman.

It says that it was his practice when faced with such a request to undertake the steps he outlined, including consultation as a matter of course with at least one of his “internal” colleagues and, if he was not comfortable, with external sources. These steps were clearly designed to enable him to answer the question that had been posed. Further, this evidence was sufficient for the Chambers judge to conclude that Dr. Block both had and followed this standard practice, including by deciding to conduct only an internal but not an external consultation.

As I read his judgment, that is what the Chambers judge meant when he found that “Dr. Block did everything he was supposed to do”, immediately after adopting Dr. Alport’s expert opinion as to the standard of care (at para 69). [ 58 ] In this respect, it is important to attend to the particulars of Dr. Alport’s evidence. He too noted the significance of rule-out requests. In his cross-examination by Ms. Zoerb’s counsel, Dr. Alport testified that general pathologists were often asked to “rule out rather rare and esoteric things” and that Dr.

Block’s standard practice in that context was the same as most pathologists practising in Regina in 1990. He gave evidence that the practice followed by Dr. Block in analyzing the Tissue Specimen was an appropriate and acceptable practice for a general pathologist in 1990. That opinion was entirely comprehensible in light of Dr. Alport’s affidavit evidence detailing the steps that were normally taken by a general pathologist when confronted with a difficult case in 1990: 34. Generally speaking, when presented with a difficult case in 1990, we would review the available literature and consult available colleagues.

As in Saskatoon, there were few pathologists practising in Regina in 1990. If our literature review and “local consultations” provided us with confidence in an accurate diagnosis, we would render the diagnosis and issue a report. If uncertainty remained, the case would be referred externally to a consultant with more experience in the area. In 1990, it was uncommon to record any internal consultations preceding the issuance of a report. [ 59 ] This evidence of standard practice is substantially the same as that of Dr. Block. [ 60 ] In spite of all of this, and as noted above, Ms. Zoerb submits that both Dr.

Alport, and thus the Chambers judge, failed to substantively analyze and address the question of whether, in all the circumstances, Dr. Block had a duty to refer the task to a more experienced pathologist. For the reasons that follow, I do not agree. [ 61 ] As noted above, Dr. Block was obliged to use reasonable care and skill in applying the means specified by the standard practice. Both Dr. Alport and Dr. Block gave evidence that the standard practice in light of the request to rule out this rare oral tumor included the requirement that Dr.

Block determine, after having reached his initial diagnosis, whether to consult not only a general pathologist in Saskatoon, but an oral pathologist or someone with greater expertise. Dr. Block described this decision as depending on his level of comfort. Dr.

Alport’s evidence was essentially to the same effect; that is, that the standard practice in Regina was to conduct an external consultation only if uncertainty remained after the literature review and local consultations. [ 62 ] This aspect of the standard practice incorporated the duty to refer, and, in particular, a physician’s duty to decide whether to make a referral: Robertson at 398. Dr. Block was required to determine whether he had the skill to rule out ameloblastoma.

In doing so, he had to guard against his own inexperience with oral tumors, including the fact that he had never before seen an ameloblastoma. The question, however, is not whether he made the correct decision on this point. It is whether he used reasonable care and skill in making it. [ 63 ] Ms. Zoerb does not cast the matter in these terms. She does not claim that Dr. Block failed to use reasonable care and skill in making this decision. Rather, she contends that because he did not have the training or experience to rule out ameloblastoma, he could not meaningfully address Dr. Shiffman’s rule-out request.

She submits that Dr. Block should have recognized this as a matter of a professional’s common-sense appreciation of their own limitations. Ms. Zoerb also argues that, since the majority of average general pathologists had the same lack of expertise as Dr. Block, the only reasonable consultation would have been with an oral pathologist, a general pathologist with an ear, nose and throat specialty, or a general pathologist who was sensitized to ameloblastoma. She relies on Dr.

McGaw’s opinion that such a referral was required and on the evidence that one of the slides showed markers that were characteristic of ameloblastoma that would be readily recognizable by a pathologist with training and experience bearing on ameloblastoma. [ 64 ] In substance, Ms. Zoerb’s argument on this point amounts to this: a pathologist cannot decide if a referral is necessary if they lack the training or experience to make the diagnosis that would be referred. With respect, that does not accord with the law relating to the standard of care. Ms.

Zoerb acknowledges that the duty to refer may be engaged when a physician lacks the competence or experience to

carry out the task in question. In those circumstances, the referring physician must, in order to make the necessary clinical judgment as towhether to refer the patient, assess their own training and experience. Ms. Zoerb effectively contends that the physician must make thecorrect decision. That would constitute a standard of perfection based on the result, rather than a standard of reasonable care and skill incarrying out the task of making the decision. [65] It was Dr. Alport’s opinion that the standard of care required that Dr. Block make this referral decision, that Dr.

Block did so,and that he made a reasonable diagnosis in the circumstances. I conclude, based on the Decision as a whole, that the Chambers judgereached the same conclusions. The Chambers judge was aware when he made those findings that many, if not most, general pathologistswould have been unable to recognize the subtle markers of ameloblastoma that were present on one of the slides and that would have beenrecognizable to the trained or sensitized eye. There was, in light of that, no basis to conclude that Dr. Block should have known thesethings. Further, the Chambers judge had accepted Dr.

Alport’s evidence that general pathologists were whole body pathologists who werequalified to and, in his experience, commonly analyzed samples from all areas of the body, including the oral cavity, and regularly dealtwith requests to rule-out rare things in accordance with the standard practice he described. This, of course, was exactly that kind of requestand, in that sense, within Dr. Block’s wheelhouse. [66] In light of all of this, I conclude that the Chambers judge did not commit a palpable and overriding error when he held that Dr.Block complied with the standard of care.

It was for the Chambers judge to decide whether to accept the evidence of Dr. Alport – ageneral pathologist with a great deal of experience practising in Saskatchewan – as to the standard practice in these circumstances, and toprefer that evidence to that of Dr. McGaw. Dr. Block admits that he came to the wrong conclusion when he analyzed the TissueSpecimen. He also came to the wrong conclusion when he decided not to consult with an external resource. However, the fact that he waswrong does not prove that he was negligent.

It was open to the Chambers judge to find, as he did, that these errors did not result from afailure to use reasonable care and skill, but rather, constituted errors of judgment. [67] Finally, as noted above, Ms. Zoerb contends that if the Chambers judge was correct in deciding that Dr. Block complied withthe standard of care described by Dr. Alport, this situation falls within the exception specified in ter Neuzen.

She submits that it is a matterof common sense that a general pathologist who has no training or experience with a rare tumor must, if asked to rule out a diagnosis ofthat tumor, carry out a formal consultation with, or refer the request to, a pathologist who has the required experience with oral tumors tomake that diagnosis. [68] I must again respectfully disagree. The ter Neuzen exception may be found to apply where the standard practice does notconform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of theprofession.

This is not such a situation. The standard practice at issue here is the self-assessment by a general pathologist that had beenasked to rule out a diagnosis of a rare tumor, ameloblastoma. An ordinary person would not readily understand that practice to be fraughtwith obvious risks, to lack obvious and reasonable precautions, or to suffer from a similar flaw. Issues of that kind could not be recognized,as Ms. Zoerb suggests, as a matter of common sense.

Expert evidence of the sort given in this case was necessary; that is, as to matterssuch as the training, experience and practice of general pathologists, the relative value and availability of other resources, and thechallenges that arise in diagnosing or excluding a diagnosis of ameloblastoma. [69] For this reason, I am also unable to find that the Chambers judge was incorrect when he failed to conclude that the standardpractice he found to apply in these circumstances fell within the ter Neuzen exception, and was accordingly negligent. D. Did the Chambers judge err by declining to award costs to Dr.

Block andthe SRHA? [70] The decision to award costs is discretionary. However, as LeBel J. commented in British Columbia (Minister of Forests) vOkanagan Indian Band, 2003 SCC 71 at para 22, [2003] 3 SCR 371, “it is a discretion that must be exercised judicially, and accordinglythe ordinary rules of costs should be followed unless the circumstances justify a different approach”. As LeBel J. also said: [43] …[D]iscretionary decisions are not completely insulated from review (para. 118).

An appellate court may and should intervenewhere it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts.As this Court held in Pelech v.

Pelech, (SCC), [1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicialdiscretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law whichare subject to appellate review. [71] This statement recognizes that, as Cameron J.A. said in Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119,discretionary powers “fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their properexercise”. Discretionary powers are never unfettered.

For that reason, appellate intervention is appropriate where the judge has misappliedthe criteria which govern the exercise of their discretion, thereby committing an error of law: see also Kot v Kot, 2021 SKCA 4 at para 20,63 ETR (4th) 161. [72] Although the criteria that govern the award of costs provide broad discretion, one of the principles that generally governs is thatthe party who on the whole succeeds in the action is entitled to costs.

Justice Gerwing adverted to this principle in Thomas v LaflecheUnion Hospital, (SK CA), [1991] 5 WWR 209 (Sask CA), commenting as follows: [16] …[C]osts are, of course, in the discretion of the trial judge and this court will only in the most rare instances intervene to changesuch an award. However, there are certain principles which must run through the grant of costs, albeit few and flexible.

One such principleis that a party who has been wholly successful should, in the absence of strong reasons to the contrary, be entitled to his award of costs. … [73] In Balzer v Federated Co-operatives Limited, 2019 SKQB 340, [2020] 8 WWR 113, Popescul C.J.Q.B. affirmed that thiscontinued to be the case after the implementation of the revised Queen’s Bench Rules in 2013, noting as follows: [57] …The Queen’s Bench Rules and the jurisprudence clearly set forth the basic premise that, subject to the court’s overridingdiscretion, which must be exercised judiciously, “... the costs of a proceeding must follow the event”. (See Rule 11-7(1) and Dominion

Fire Insurance Co. v Thomson, (SK CA), [1923] 4 DLR 903 (Sask CA), and Thomas v Lafleche Union Hospital Board, (SK CA), [1991] 5 WWR 209 (Sask CA) [Thomas].) Rule 11-7(1) provides that, subject to the provisions of Rule 11-7(2) relating to costs in favour of trustees, personal representatives andmortgagees, “the costs of a proceeding must follow the event”. [74] In this case, Dr. Block and the SRHA were wholly successful in the action, notwithstanding the finding that it was not statuebarred as against the SRHA. Ms. Zoerb did not suggest otherwise.

Nor is there any suggestion that there were strong, or indeed, anyreasons that might have justified the failure to follow the general rule. The Chambers judge did not explain his decision on this point,stating only that he declined to award costs. Although that would not be fatal if the decision was comprehensible based on the outcome,such as mixed success, or as a result of other factors that might justify a failure to award costs, nothing of that kind is apparent. [75] For these reasons, I conclude that the decision to award no costs reflects an error of law and must be set aside. Dr.

Block andthe SRHA shall be entitled to one set of costs on Column 1 of the Tariff of Costs. V. CONCLUSION [76] For these reasons, Ms. Zoerb’s appeal of the decision that her action be dismissed is denied, and Dr. Block and the SRHA’sappeal of the denial of costs below is allowed. [77] Dr. Block and the SRHA shall have one set of costs on this appeal, calculated in the usual way. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Tholl J.A.” Tholl J.A.

Court of Appeal for Saskatchewan Neutral Citation: 2022 SKCA 111 Corrigendum Date: 2022-10-18Shannon Zoerb Appellant/Respondent (Plaintiff)andSaskatoon Regional Health Authority and Dr. Henry BlockRespondents/Appellants (Defendants) Corrigendum The text of the judgment has been corrected from its original 5 October 2022 release date to reflect the following: in paragraph 37, thesentence “The question of whether there exists a genuine issue for trial in a

summary judgment application is one of mixed fact and law,reviewable on appeal on the palpable and overriding error standard: Hryniak” has been added to the end of the quote. Paragraph 37 wasamended on 18 October 2022 to reflect this correction.