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Civil Litigation - Party Agreements as to Facts. Hemmings v. Peng
In Hemmings v. Peng (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a medical malpractice case, here where a pregnant patient had a heart attack during surgery resulting in brain damage:
Here the court allows the appeal on the basis (inter alia) that the trial court failed to apply a party-negotiated evidence-limited agreement:The Resolution Agreement
[132] The respondents served a motion just before the start of trial that sought to limit certain evidence the Hospital could call. The respondents and the Hospital settled that motion by entering into a Resolution Agreement, which stated, at para. 4:4. The Plaintiffs will advise the Court that the sole remaining issue between the Plaintiffs and the Hospital is in relation to what will be referred to in the evidence as the April 8, 2009, telephone call. [133] The trial judge was told about the Resolution Agreement and the trial proceeded on that basis.[25]
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Analysis
[146] It is a basic principle of civil litigation that a judge commits an error of law when he or she decides a proceeding “on a basis that was not ‘anchored in the pleadings, evidence, positions or submissions of any of the parties’”: Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, at para. 13, leave to appeal refused, [2018] S.C.C.A. No. 214.
[147] In the present case, the Resolution Agreement between the respondents and the Hospital defined the issue those parties wanted the trial judge to adjudicate: the April 8, 2009, telephone call between Ms. Hemmings and Nurse San Juan.
[148] As I read the trial judge’s reasons, his finding that the Hospital was negligent for failing to assemble the records detailing Ms. Hemmings’ pregnancy rested on (i) the lack of availability of records for review by Drs. Peng, O’Brien or Jamensky, none of whom were involved in the April 8 call, and (ii) the lack of availability of the records Dr. Padmore provided to Ms. Hemmings to take to the Hospital on April 18. Neither of those issues concerned the April 8, 2009, telephone call. As well, this is not a case where the documents in question were discovered or produced after the parties had entered into the Resolution Agreement. The documents had been produced during the pre-trial discovery process. Accordingly, on that basis alone I would set aside the trial judge’s finding.
[149] However, I would add that the trial judge’s finding amounts to the assertion of a bald conclusion. It was not supported by the adjudicative analysis required to assess a claim of negligence. A finding of negligence unsupported by any analysis cannot stand.
[150] For those reasons, I would allow the Hospital’s appeal in respect of the trial judge’s finding of direct liability on its part. When coupled with my conclusion that I would allow the Hospital’s appeal on the issue of vicarious liability, I would allow both aspects of the Hospital’s appeal, set aside the judgment against it, and dismiss the respondent’s action against it. . Lacroix v. Central-McKinlay International Ltd.
In Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022) the Divisional Court commented on the practice of parties' agreeing as to facts for purposes of a hearing:[20] The tenant points to the LTB finding that certain facts were agreed at the hearing as a failure in the process below: he argues that there is no basis in the record establishing this “agreement”. The agreed facts are not challenged before us: they are in respect to background facts:(a) that notice of termination was timely and in compliance with the RTA.
(b) that the landlord obtained the necessary demolition permits.
(c) that compensation for termination is not payable because there are less than five rental units at the premises (RTA, s.52(b)). [21] The LTB stated in its reasons that these facts were agreed. Such an agreement may be conveyed to the LTB orally at the hearing. The purpose of such an agreement is to focus the hearing on truly contested issues. There is no basis in the record to suppose that (a) any of these facts was not true, (b) conceding these facts was unreasonable; (c) the agreed facts were not, in fact, agreed at the hearing. These are precisely the sorts of issues that should be conceded if there is no legitimate issue in respect to them, as was the case here.
[22] We see no procedural unfairness and no failure of justice in the substantive result. The case turned on questions of fact in respect to which there is no appeal available.
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