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Evidence - Expert Opinion - Credibility. 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 considers findings of credibility of expert witnesses:[44] It is up to trial judges to determine to what extent, if it all, they find each expert credible and their evidence reliable: R v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 129. The weight to be given to an expert’s opinion is within the trial judge’s discretion and owed deference on appeal on the same basis as other findings of fact: R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at paras. 62-63; Palichuk v. Palichuk, 2023 ONCA 116, at para. 55; Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2011 BCCA 351, at para. 16. On this issue, I am satisfied that the trial judge did not misapprehend the evidence; it could reasonably support the conclusion reached by the trial judge: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at pp. 358-360. I therefore see no basis for appellate intervention.
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