Canadian Lawyer

www.lawtimesnews.com 31 al judge's conclusions respecting standard of care were supported by the evidence at trial." She, too, highlighted the problem with the idea of attempting to take steps versus ulti- mately achieving the goal of expected stan- dard of care, referencing another medical negligence case involving surgery where the decision stated "there is a difference between using the appropriate technique and execut- ing it properly." much favours the minority's view," arguing that, stepping away from medical malpractice and taking a general perspective, the law has never required a plaintiff to prove exactly how a defendant was negligent, just that the defen- dant was negligent. "Plaintiffs shouldn't be handicapped be- cause the exact step that wasn't taken or the exact mechanism that caused the harm can't be known if these things simply don't happen in the absence of negligence," he says. "Unless the defendant has some explanation as to why they exercised due care but it still happened, then the plaintiff should succeed." He says he's "concerned there's a body of law being developed that gives a break to medical defendants that wouldn't be given to other defendants." Every once in a while, the SCC will take a case on the basis of justice, and its ruling on this issue would be "enormously helpful," Harte says, because the medical malpractice plaintiff and defence bar need to know if the test laid out in Armstrong is the correct one. If it is, he predicts plaintiff medical malprac- tice lawyers will stop taking these cases. But what's happening right now is an ongoing un- certainty. "It's uncertainty for patients, it's creating litigation, it's very expensive and, at the end of the day, it's all largely funded by public health dollars," Harte says. "It doesn't help either side to have ambiguity. In this case where you've got a dissenting opinion, there's a chance — I wouldn't say a great chance, but a chance — the SCC would hear it." "I'm concerned there's a body of law being developed that gives a break to medical defendants that wouldn't be given to other defendants." Paul Harte, Harte Law Harte says such a dissent is rare, especially in medical malpractice appeals. "You normally do not see such a strong minority opinion based not really on a legal determination but on an evidentiary consid- eration," he says. "At best, it's a question of mixed fact and law." Marin points out that trial judges' decisions on fact are entitled to deference and the stan- dard for the appeal is "a palpable or overriding error of fact," which is a high standard. If it's an error of law, you can appeal on a correct- ness standard — and the appeal decision does say it's an error of law. But she agrees that the way the dissent is written makes it clear "that essentially the way in which the major- ity framed the decision leads one to believe they were looking at the evidence in terms of whether it was correctly analyzed or if there was enough evidence." The existence of the dissent was a comfort to Marin that it wasn't out of the realm of pos- sibility to think her case would be successful. "It does speak to the nature of the case — the judges themselves couldn't agree," she says. "It wouldn't be crazy for either of the parties to believe they were right because we were each able to convince someone on the Court of Ap- peal — these experienced, senior jurists — that our argument was correct." Harte calls the outcome frustrating for both parties in that it was essentially a true split de- cision — a trial judge and an appellate judge who believe there was negligence and two ap- pellate judges who believe there wasn't negli- gence — on a factual determination. He "very

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