Crits v Sylvester: The Exploding Anaesthetic Case That Gave Canada Its Medical Standard of Care

By Dr. Aris Lavranos June 17, 2026

Crits v Sylvester set the "normal, prudent practitioner" standard of care after an anaesthetic fire during surgery.

Not every defining statement of legal principle comes from the country’s highest court. Some of the most enduring propositions in Canadian law were articulated by intermediate appellate courts, and then carried forward because they were right, clear, and complete.

Justice Schroeder of the Ontario Court of Appeal did not set out, on January 24, 1956, to write a passage that would be quoted in every medical malpractice case in Canada for the next seven decades and beyond. He set out to decide whether an anaesthesiologist who had allowed explosive gas to accumulate near the head of a five-year-old boy, who was then burned when a spark ignited it, had been negligent. In deciding that question, he articulated what has become the governing formulation of the medical standard of care in Canada: a statement so well-crafted that the Supreme Court of Canada, in affirming the decision months later, saw no reason to say it differently.

This is the complete story of how that formulation came to be written, tracing the case from its origins in a Stratford operating room in 1952, through a trial that dismissed the claim entirely, through the Court of Appeal that reversed that dismissal and produced the governing standard, to the Supreme Court of Canada that confirmed it and gave it national reach.

The Legal Landscape: Where the Standard of Care Stood in 1956

The Problem With Professional Standards in Mid-Century Canadian Law

By the mid-1950s, the general principle that negligence required proof that a defendant failed to exercise the care of a reasonable person was well established in Canadian common law. Donoghue v Stevenson [1932] AC 562 had provided the foundational duty of care framework. But for medical practitioners specifically, the question of how the reasonable person standard was calibrated to the particular demands of professional skill had never been settled in a Canadian court with the clarity and precision that practitioners and litigants needed.

English law had produced useful formulations. In Rex v Bateman (1925), 41 TLR 557, Lord Hewart CJ had stated that a person who holds themselves out as possessing special skill and knowledge owes a duty to use due caution, and must use the degree of skill they actually possess and which society demands. Lord Denning’s judgment in Roe v Minister of Health [1954] 2 QB 66 had addressed the standard in the context of medical accidents and had provided guidance on the proper retrospective assessment of clinical decisions. But these were English authorities, useful but not definitive for Canadian courts.

What was needed was a synthesis: a statement of the medical standard of care comprehensive enough to cover the range of situations practitioners faced, precise enough to provide workable guidance, and authoritative enough to function as a governing benchmark. It came from Stratford, Ontario, when an explosion in an operating room burned a five-year-old boy and set in motion the litigation that would produce it.

Crits arose when oxygen near a cautery sparked an explosion during a tonsillectomy.

The Facts: A Tonsillectomy, an Explosion, and a Child’s Burned Face

John Crits and the Stratford General Hospital

John Crits was born on March 5, 1947. He was four years and eleven months old when his father Neil Crits brought him to the Stratford General Hospital on the morning of February 5, 1952, for a tonsillectomy. The hospital had been newly built in 1950, designed and equipped with careful attention to the hazards of the operating room environment, including dedicated electrical grounding systems, regulated humidity, ventilation, and a metal grid embedded in the floor for draining electrostatic charges. He was a healthy child having a routine procedure. No one anticipated anything out of the ordinary.

The tonsillectomy was to be performed by Dr. Macklin, a physician and surgeon specializing in pediatrics. Anaesthesia was the responsibility of Dr. C. Edward Sylvester, a qualified specialist in anaesthesiology who had been on the active staff of the Stratford General Hospital since 1946 and had practised as an anaesthetist there from 1947 or 1948. He had administered this technique over one thousand times without incident. The anaesthetic chosen was a gaseous mixture of ether and oxygen, widely used for this era and this procedure, sometimes called the “Flagg” technique. Dr. Gordon, the senior attending anaesthetist at the Toronto General Hospital who testified as an expert witness, confirmed that it was standard practice and was in general use at that time. Dr. Sylvester began by administering sodium pentothal intravenously to achieve rapid sedation, then inserted a vinyl plastic tracheal tube (a Magill tube) to maintain the airway. The ether-oxygen mixture would be conveyed through that tube into the patient’s lungs throughout the operation.

The Apparatus and the Emergency

The apparatus Dr. Sylvester used centred on an ether can positioned on the operating table approximately six to seven inches from the patient’s face. Oxygen from a tank nearby was fed through a rubber tube into the ether can, causing the ether to bubble and producing a vapour of mixed ether and oxygen that passed through the Magill tube into the patient’s trachea. The mixture was a concededly highly explosive substance. In operating rooms of that era, the danger of a spark from static electricity was a recognized and constant hazard, and all working in such conditions knew it.

Almost immediately after the ether-oxygen mixture began flowing, John Crits developed cyanosis, a dangerous reduction in blood oxygen evidenced by a bluish tinge about the lips, requiring immediate intervention. Left untreated within four minutes, the condition could cause irreversible brain damage or death. Dr. Sylvester acted at once, disconnecting the tubing from the ether can and filling a rubber oxygen bag directly from the tank, then forcing pure oxygen into the boy’s lungs by manually compressing the bag, a procedure called “bagging” the patient. In the course of approximately thirty to sixty seconds of this procedure, John Crits’s colour and respiration returned to normal.

The Decision Not to Turn Off the Oxygen

During the critical interval while he was “bagging” the patient, Dr. Sylvester made the decision that would define the litigation for the next four years. Having filled the rubber bag with oxygen, he replaced the oxygen tube in the ether can, and turned the valve on the oxygen tank not off, but merely down to a reduced pressure. Oxygen continued to flow into the ether can, mixing with the ether and escaping as vapour through the openings in the can. Since the patient was no longer inhaling the mixture during the bagging procedure, the vapour was not being absorbed; it was accumulating in the immediate area between the ether can and the patient’s face.

The time during which this accumulated (from the onset of the cyanotic episode, through the bagging procedure, to the moment of reconnection) was not less than two to three minutes. A dense, invisible cloud of explosive ether-oxygen vapour had gathered in the space where the spark-generating motion of disconnecting the tubes would occur.

When the patient’s condition had been restored to normal, Dr. Sylvester moved to disconnect the oxygen bag from the Magill tube and resume the anaesthetic flow. He described the disconnection: he held the Magill tube in one hand and the Adams connector (attached to the bag) in the other and twisted the plastic tube off the connector. At the moment of separation, he saw a blue flame between his hand and the ether can, and a violent explosion followed.

John Crits suffered extensive second and third degree burns over the left side of his forehead, the left temporal region, and the left facial area. He required several skin-grafting operations. Some permanent scarring remained. His father Neil Crits incurred medical expenses of $1,882.55, not counting any hospital charges.

Why had Dr. Sylvester not simply turned the oxygen off completely during the bagging interval? His testimony at trial provided the answer. He gave two reasons: first, that he wanted the oxygen to be ready to flow into the ether can immediately when the anaesthetic was resumed so there would be no delay; second, that turning it off was “just one more thing to do to delay your work.” Under cross-examination, he acknowledged that the second reason was the real one. He also conceded that turning the oxygen off completely rather than merely reducing it would have entailed no material delay: the additional step of opening the valve again when resuming the anaesthetic would have taken only a second or two.

The Defendants

Neil Crits and John Crits (by his father as next friend) sued all parties with potential responsibility:

Dr. C. Edward Sylvester, the anaesthesiologist who managed the ether-oxygen apparatus and chose to leave the oxygen flowing
Dr. Macklin, the surgeon performing the tonsillectomy, present in the operating room
The Stratford General Hospital Trust and The Stratford General Hospital Corporation, the institutional defendants responsible for the facility, its equipment, construction, and maintenance

The specific allegations of negligence against Dr. Sylvester were two: first, that the ether can had been placed only six to seven inches from the patient’s face, creating an unnecessarily close zone of explosive vapour; second, that during the cyanotic interval Dr. Sylvester had reduced rather than shut off the oxygen supply, allowing explosive vapour to continue accumulating in the immediate proximity of the patient’s face and the spark-generating disconnection that resumption of the anaesthetic would require.

Stage One: The Trial — Justice Smily Dismisses All Claims

The Reasoning at Trial

At trial before Justice Smily of the Ontario High Court of Justice, the action was dismissed against all defendants. Justice Smily assessed damages ($1,882.55 for the adult plaintiff plus any hospital charges, and $7,500 in general damages for the infant plaintiff accounting for future reconstructive surgery), but made no awards because he found no liability.

The defence of Dr. Sylvester rested on two main propositions: that his conduct had been in accordance with recognized anaesthetic practice, and that the explosion resulted from a combination of circumstances that could not have been reliably prevented. The defence relied particularly on the testimony of Dr. Nichols (the senior anaesthetist at the Stratford General Hospital who had administered some thirty thousand anaesthetics without an explosion and who had taught Dr. Sylvester) and of Dr. Gordon, the senior attending anaesthetist at the Toronto General Hospital, who confirmed the “Flagg” technique was standard practice and that he himself used it.

Justice Smily accepted the evidence that Dr. Sylvester was effectively grounded through the floor of the operating room, that the technique was standard, and that the explanation for the accident given by the defendant was at least equally consistent with an absence of negligence as with its presence. On the basis of the United Motors Service test (an explanation consistent with absence of negligence leaves the burden of establishing negligence on the plaintiff), he found the plaintiffs had not discharged that burden.

He assessed damages notwithstanding the dismissal, noting that the burns were quite severe, requiring plastic surgery, and that while some scarring was permanent it was less extensive in a boy than it would have been in a girl.

Stage Two: The Ontario Court of Appeal — Justice Schroeder’s Judgment

A Three-Way Decision

The Crits family appealed. The case came before the Ontario Court of Appeal before Aylesworth, F.G. MacKay and Schroeder JJ.A. Justice Schroeder delivered the judgment of the court. He reached three distinct conclusions, one for each category of defendant, and in doing so defined both the legal outcome and the doctrinal framework that would govern medical malpractice assessments in Canada for decades.

The appeal against Dr. Macklin (the surgeon) was abandoned by the plaintiffs before the argument concluded; it was dismissed without costs. The appeals against the hospital corporations were dismissed with costs if demanded. The appeal against Dr. Sylvester was allowed. On Sylvester alone, the court reversed the trial judge and found liability, directing judgment for the damages Justice Smily had assessed.

Why the Hospital Was Not Liable

Schroeder J.A.’s treatment of the hospital defendants established an important principle about institutional healthcare liability that endures. The Stratford General Hospital had been constructed in 1950 with careful attention to operating room safety: a metal grid embedded in the floor for grounding, regulated humidity and ventilation, cotton outer garments, leather-soled footwear, and Horton inter-couplers available for equalizing electrical potential. No defect in the construction, maintenance, or equipment provision of the operating room had been established. The hospital had provided what an institution of its kind was required to provide.

The critical distinction Schroeder J.A. drew was between the hospital’s institutional obligations and the clinical choices of the practitioners who worked within its walls. The surgeon and the anaesthesiologist were employed by or on behalf of the patient, not by the hospital. Their failure to use available safety equipment appropriately was their professional responsibility, not the hospital’s institutional failure. A hospital, the court held, is not required to station overseers to ensure that independently engaged anaesthetists and surgeons of proved ability use the appliances the hospital has provided. This distinction, between an institution’s responsibility for what it provides and a practitioner’s responsibility for how they use it, continues to shape how courts assess claims against hospitals versus the practitioners who work within them.

Why Dr. Sylvester Was Liable: The Oxygen Valve Decision

On the central question of the anaesthesiologist’s conduct, Schroeder J.A.’s reasoning was systematic and ultimately decisive. Two features of the case drove his conclusion.

First, the ether-oxygen mixture was concededly highly explosive and the danger of static electricity sparks in an operating room was a recognized, constant hazard known to every anaesthesiologist. Against that background, the simple precaution of shutting the oxygen off completely during the critical bagging interval (a step that, as Dr. Sylvester himself had acknowledged under cross-examination, would have taken only a second and entailed no material delay to the resumption of anaesthesia) was the obvious minimum that reasonable care required.

Second, the court addressed the res ipsa loquitur question directly. Dr. Sylvester had performed this technique over a thousand times without incident; Dr. Nichols, who had taught him, had done so some thirty thousand times. The very fact that an explosion had occurred when this many prior administrations had not produced one called for an explanation. When the circumstances were examined, the answer was not obscure: during the bagging interval, oxygen had continued flowing into the ether can, producing two to three minutes of accumulating explosive vapour in the space between the can and the child’s face, precisely where the spark-generating disconnection movement would occur. As Schroeder J.A. observed, it did not require technical expertise to appreciate what the result of a spark in that concentration of vapour would be.

His conclusion was firm: “After mature consideration, I have reached the conclusion that on the weight and balance of probabilities emerging from the evidence, the defendant Sylvester has failed to produce an explanation which is equally consistent with negligence or no negligence on his part. I am prepared to go beyond this and say that the record discloses affirmative evidence of negligence in the particular respects mentioned by me upon which the defendant Sylvester should have been found liable for the plaintiffs’ damages.”

This formulation is significant in its own right. The court addressed res ipsa loquitur and then went further, finding not merely that an inference of negligence was available but that the evidence affirmatively established it. The finding was not one of imputed fault from an unexplained accident; it was a direct finding of negligent conduct in a specifically identified respect.

The Ontario Court of Appeal set the 'normal, prudent practitioner' standard later affirmed by the Supreme Court.

The Formulation: Justice Schroeder’s Statement of the Medical Standard of Care

The Synthesis

The portion of Schroeder J.A.’s judgment that has achieved permanent significance in Canadian medical malpractice law is his synthesis of the applicable standard of care. Drawing on Lord Hewart CJ’s statement in Rex v Bateman (1925), 41 TLR 557, and Lord Denning’s judgment in Roe v Minister of Health [1954] 2 QB 66, Schroeder J.A. articulated a formulation that was both comprehensive and precise:

“Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

This passage is the most-cited statement of the medical standard of care in Canadian malpractice law. It has been quoted, applied, and relied upon in judicial decisions across the country for nearly seventy years. It has been affirmed by the Supreme Court of Canada, adopted in every province, applied to every healthcare specialty, and remains the governing formulation against which clinical conduct is measured in Canadian courts today.

Unpacking the Formulation: Four Components

Component One: Reasonable Skill and Knowledge

“Every medical practitioner must bring to his task a reasonable degree of skill and knowledge.”

This component addresses what a practitioner must possess before they ever approach a patient. Skill and knowledge are prerequisites of safe practice, not merely aspirations. A practitioner who undertakes a procedure they lack the skill or knowledge to perform safely has already failed the standard before anything goes wrong. The phrase “bring to his task” is deliberate: it places the standard at the point of engagement, at the moment the practitioner accepts the responsibility of caring for a patient. The duty does not arise only when something goes wrong; it arises from the outset of the clinical relationship.

Component Two: Reasonable Care in Exercise

“…and must exercise a reasonable degree of care.”

Possessing the relevant skill and knowledge is necessary but not sufficient. The practitioner must also apply that skill and knowledge with reasonable care. Carelessness in the exercise of skill, whether applying the right technique inattentively, using the right equipment without proper precaution, or maintaining the right procedure without attending to known hazards, is a failure of the standard even where the underlying competence is present. Dr. Sylvester’s case illustrates this precisely: his competence in anaesthesiology was not in question. His failure was a failure of care in the application of that competence: specifically, the failure to exercise the attentiveness to a well-known explosive risk that reasonable care demanded during the critical interval.

Component Three: The Normal, Prudent Practitioner Benchmark

“He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing…”

This component calibrates the standard. “Normal” distinguishes it from exceptionalism: it does not demand heroic levels of care. “Prudent” distinguishes it from carelessness: it demands attentiveness to known risks and reasonable judgment in managing them. “Same experience and standing” grounds the assessment in the specific context of the practitioner. A junior resident is assessed against the standard of a reasonably competent resident, not against the standard of a subspecialty attending physician. The standard is demanding precisely to the extent of what reasonably can be expected: no more, but certainly no less.

Component Four: The Specialist Elevation

“…and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

A physician who presents themselves to patients as a specialist (in anaesthesiology, cardiology, surgery, or any medical discipline) and who is consulted and relied upon on the basis of that claimed expertise, is held to the standard of a competent specialist in that field. The implicit representation of specialized competence that accompanies specialist practice raises the legal standard proportionally. In an era of increasing medical subspecialization, this component has become more significant with every passing decade. A fellowship-trained subspecialist is assessed against the standard of a competent member of their specific discipline, a more demanding benchmark than that applied to a general practitioner.

The Standard Practice Dictum: A Prescient Limitation

Beyond the governing formulation, Schroeder J.A.’s judgment contains a dictum that anticipated one of the most significant developments in Canadian standard of care law since 1956. Having found affirmative evidence of negligence on the facts, Schroeder J.A. addressed the argument that the anaesthesiologist had been following standard recognized practice and that conformity with that practice should constitute a defence.

He observed that even if the anaesthesiologist’s conduct had in fact conformed to the standard practice of peers, that evidence is “not necessarily to be taken as conclusive on an issue of negligence, particularly where the so-called standard practice related to something which was not essentially conduct requiring special medical skill and training either for its performance or a proper understanding of it.” A practice that fails to adopt obvious precautions against recognized dangers can itself be negligent, regardless of its prevalence. The question of what constitutes negligence is ultimately one for the court, not for the experts, even in medical cases.

This dictum was limited in 1956 because the court found affirmative negligence and did not need to decide the standard practice question definitively. But it was the seed of a principle confirmed and systematized by the Supreme Court of Canada four decades later in Ter Neuzen v Korn, [1995] 3 SCR 674, where the Court developed the technical versus non-technical distinction that determines precisely when common professional practice can or cannot be challenged as itself falling below the standard of care. For a full analysis of how that development built upon the foundation of Crits v Sylvester, see the companion article in this series on Ter Neuzen v Korn.

Stage Three: The Supreme Court of Canada — Rand J. Affirms

Dr. Sylvester’s Appeal to the SCC

Dr. Sylvester appealed the Court of Appeal’s decision to the Supreme Court of Canada. Justice Rand delivered the unanimous judgment. The appeal was dismissed. Dr. Sylvester’s liability for the injuries to John Crits was confirmed.

How Rand J. Approached the Two Grounds

The SCC’s analysis addressed the two specific grounds of negligence differently, and the distinction between them is itself an important contribution of the decision.

On the first ground, that the ether can had been positioned too close to the patient’s face (six to seven inches), Rand J. declined to uphold the finding of negligence. Dr. Gordon, the expert witness accepted by all parties as being of outstanding competency, had approved this practice, and the evidence showed it was in general professional use. On a matter of this kind, namely the physical arrangement of anaesthetic apparatus during a procedure, the court’s position was that “it would be extremely dangerous for a Court to attempt in such a matter to proscribe a step for technicians where their general experience approves it and it is not clearly unnecessary and unduly hazardous.” Where competent practitioners have developed and confirmed a practice through general experience, courts should be very reluctant to override it.

On the second ground, allowing oxygen to continue flowing into the ether can during the bagging interval, Rand J. found no room for such deference. The reason was critical: there was no clear evidence that this was standard practice at all. When asked whether leaving oxygen flowing into the ether can during bagging was the practice, Dr. Sylvester had answered “that would be the practice, yes,” but Rand J. found this referred to Dr. Sylvester’s own personal practice, not a standard or general practice. Neither Dr. Nichols nor Dr. Gordon had been specifically questioned about whether leaving oxygen flowing during bagging was appropriate. The issue had been raised by the evidence but left without a clear answer on the standard practice question.

In that absence, the factual analysis controlled. The oxygen had been flowing for at least two to three minutes. It was not being absorbed by the patient during bagging. The heaviest concentration of ether vapour in the room would be in the immediate vicinity of the ether can. Turning the oxygen off completely rather than merely reducing it, which Rand J. found would have added only a second or so to the subsequent procedure, would have substantially reduced the hazard. The decision to leave it flowing, in conditions of constant electrostatic spark risk and with no confirmation that this was standard practice, was negligent: “it would seem to me, in the absence of the evidence of wide and confirmed experience, to be without justification.”

What the SCC Affirmation Achieved

On the governing standard of care, the Supreme Court did not restate or add to what Schroeder J.A. had articulated. The Crits v Sylvester formulation was adopted as correctly stating the law, without modification or elaboration.

The SCC’s affirmation did something the Court of Appeal’s decision alone could not fully achieve: it made the Crits v Sylvester formulation binding on all Canadian courts. A statement of principle from an Ontario intermediate appellate court is authoritative primarily within Ontario and persuasive elsewhere. Once the Supreme Court of Canada affirmed it without modification, it became the national standard, applicable in every province, to every healthcare practitioner, in every malpractice claim.

This is what makes the relationship between the two decisions important to understand accurately. The formulation was Schroeder J.A.’s. The national authority came from the Supreme Court’s endorsement. Most citations in subsequent cases name both decisions, as in “Crits v Sylvester (ONCA), affirmed [1956] SCR 991,” because both are needed for the complete picture. The citation for the standard of care formulation is properly 1956 CanLII 34 (ON CA), [1956] OR 132 at 143, affirmed 1956 CanLII 29 (SCC), [1956] SCR 991. The source is the Court of Appeal. The national authority comes from both.

Why the Ontario Court of Appeal’s Formulation, Not the Supreme Court’s, Is the Source

Understanding that the defining statement of the medical standard of care in Canadian law originated in an Ontario Court of Appeal judgment matters for several reasons.

It illustrates that the development of legal doctrine is not exclusively a top-down process. Intermediate appellate courts, when they reason carefully and articulate principles with precision, contribute to the law in ways that persist and propagate. Schroeder J.A.’s formulation was adopted not because it came from the highest court but because it was right: it captured the governing standard with a completeness and clarity that made it the natural reference point for every subsequent court considering the same question.

The Supreme Court of Canada was not constrained to adopt the Ontario Court of Appeal’s formulation. It could have restated the standard in its own language. That it chose not to, that it found nothing wanting in what Schroeder J.A. had written, is itself a judgment about the quality and completeness of that formulation.

The Formulation’s Reach: From Anaesthesiology to Every Healthcare Discipline

The Crits v Sylvester standard of care formulation arose in anaesthesiology. But the language Schroeder J.A. chose, “every medical practitioner,” not “every anaesthesiologist,” signalled from the outset that the principle was not limited to its facts.

“Every medical practitioner” has meant exactly what it says in the seven decades since 1956. The formulation has been applied to general practitioners making diagnostic decisions, surgeons conducting complex procedures, emergency physicians assessing undifferentiated presentations, radiologists reading diagnostic imaging, obstetricians managing labour and delivery, psychiatrists managing at-risk patients, nurses providing post-operative care, and the full range of regulated healthcare practitioners. In every context, the governing question is the same: did this practitioner bring to their task the reasonable skill and knowledge that could be expected of a normal, prudent practitioner of the same experience and standing?

Crits v Sylvester and the 1956 Framework

With Wilson v Swanson

Crits v Sylvester does not stand alone. It works in direct conjunction with the error in judgment doctrine articulated by Justice Rand in Wilson v Swanson, 1956 CanLII 1 (SCC), [1956] SCR 804, a case decided by the same court in the same year. Wilson v Swanson confirmed that the honest and intelligent exercise of judgment satisfies the professional obligation, even when the judgment proves wrong, while Crits v Sylvester defined what that professional obligation is. Together, these two 1956 decisions establish the complete 1956 framework: what the standard requires (Crits v Sylvester) and when a decision that falls short of a correct outcome nonetheless meets it (Wilson v Swanson).

For the full analysis of the error in judgment doctrine and how it operates alongside the Crits v Sylvester standard, see the companion article on Wilson v Swanson in this series.

With Ter Neuzen v Korn

Schroeder J.A.’s dictum about standard practice, that conformity with common professional practice is not necessarily conclusive of non-negligence, was the seed from which the Supreme Court later grew a more developed and systematized principle in Ter Neuzen v Korn, [1995] 3 SCR 674. That case, involving the HIV risk of artificial insemination and the standard of care applicable to non-technical medical decisions, developed the technical versus non-technical distinction that now determines precisely when a court may find common professional practice insufficient to discharge the standard of care, and when deference to professional practice is appropriate. For the full analysis of Ter Neuzen v Korn and its relationship to Crits v Sylvester, see the companion article on that case in this series.

With Hopp v Lepp and Reibl v Hughes

Crits v Sylvester establishes the conduct standard: what a physician must do in performing care. The informed consent framework, established in Hopp v Lepp, 1980 CanLII 14 (SCC) and Reibl v Hughes, 1980 CanLII 23 (SCC), establishes what a physician must tell the patient before performing that care. These are distinct obligations that apply in parallel: a physician who meets the Crits v Sylvester standard in performing a procedure may still be liable for failing to disclose material risks before it; one who provides full disclosure may still be liable for performing the procedure negligently. Together they govern the complete clinical encounter.

Conclusion: One Formulation, Seven Decades of Authority

The explosion that burned John Crits in Stratford, Ontario in February 1952 was a preventable catastrophe. The step that would have prevented it, turning the oxygen supply off completely during the two to three minutes it took to resolve the cyanotic episode, would have taken a second and cost nothing. Dr. Sylvester did not take it because it was one more thing to do. The injuries John Crits suffered as a result were real and serious, and the legal system properly held the person responsible for them accountable.

But what Justice Schroeder J.A. produced in the Ontario Court of Appeal on January 24, 1956, was something larger than a finding of negligence in one case. He produced the statement of what the medical standard of care is in Canada: what every medical practitioner owes every patient who places their body and their trust in professional hands. It is a statement that has not needed revision because it was right when it was written, and its rightness has only been confirmed by its application to every circumstance medicine has produced in the seven decades since.

That it came from the Ontario Court of Appeal, and not from the Supreme Court of Canada, is a reminder that the development of law is not always a top-down process. Sometimes the right court says the right thing at the right moment. Sometimes an intermediate appellate judgment, because it gets the principle exactly right, becomes the foundational authority, adopted, affirmed, and cited as the source, while the confirming decision of the higher court is understood as giving it national reach.

Crits v Sylvester is one of those cases. Its defining statement is Schroeder J.A.’s. Its authority is Canada’s.

Quick Reference: Crits v Sylvester — Three Courts, One Standard

The Three Decisions

Trial: Crits and Crits v Sylvester et al, 1955 CanLII 98 (ON HCJ), [1955] OR 332 | Smily J. | February 23, 1955 | All claims dismissed; damages assessed at $7,500 (infant) and $1,882.55 (father) but not awarded
Court of Appeal: Crits and Crits v Sylvester et al, 1956 CanLII 34 (ON CA), [1956] OR 132 | Schroeder J.A. (Aylesworth and F.G. MacKay JJ.A.) | January 24, 1956 | Appeal allowed against Dr. Sylvester; hospital and surgeon appeals dismissed
Supreme Court of Canada: Sylvester v Crits et al, 1956 CanLII 29 (SCC), [1956] SCR 991 https://canlii.ca/t/1tvmv | Rand J. | October 24, 1956 | Appeal dismissed; Court of Appeal upheld

The Parties

Plaintiffs: John Crits (infant plaintiff, born March 5, 1947; suffered burns) and Neil Crits (adult plaintiff, his father)
Defendants: Dr. C. Edward Sylvester (anaesthesiologist, found liable); Dr. Macklin (surgeon, claim abandoned by plaintiffs before CA); The Stratford General Hospital Trust and Corporation (not liable)

The Facts

February 5, 1952: John Crits, age 4½, underwent tonsillectomy at the newly-built (1950) Stratford General Hospital under Dr. Sylvester’s anaesthetic care
A cyanotic episode required suspension of the ether-oxygen anaesthetic and “bagging” the patient with pure oxygen
During the bagging interval, Dr. Sylvester reduced but did not shut off the oxygen supply; oxygen continued flowing into the ether can, positioned 6-7 inches from the patient’s face, for 2-3 minutes
On reconnecting the tubing to resume anaesthesia, a static electricity spark ignited the accumulated explosive ether-oxygen vapour: explosion causing extensive second and third degree burns to John Crits’s left forehead, temple, and face, requiring multiple skin-grafting operations
Dr. Sylvester’s testimony on why he didn’t turn the oxygen off: “just one more thing to do to delay your work,” and he subsequently acknowledged this would have entailed no material delay

The Three Liability Findings

Dr. Sylvester, liable: Leaving the oxygen flowing during the bagging interval when shutting it off would have taken a single additional second, substantially reduced the hazard, and entailed no material delay to resuming the anaesthetic
Hospital, not liable: No defect in construction or maintenance; all reasonable safeguards provided; institutional obligations met; practitioners’ clinical choices were their own professional responsibility
Dr. Macklin, appeal dismissed: Claim abandoned by plaintiffs before argument; no substantive finding

The SCC’s Two-Ground Analysis (Rand J.)

First ground (ether can 6-7 inches from face): NOT upheld; approved by expert evidence; courts should not override technical practice confirmed by general professional experience as not clearly unnecessary or unduly hazardous
Second ground (oxygen left flowing): UPHELD; no clear evidence this was standard practice (Dr. Sylvester’s “that would be the practice” referred to his own practice, not general practice); no material delay would have resulted from shutting off; a two-to-three-minute accumulation of explosive vapour in the absence of confirmed standard practice supporting the approach was indefensible

The Standard of Care Formulation (Schroeder J.A. at [1956] OR 132 at 143)

“Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

The Four Components

Reasonable skill and knowledge: what the practitioner must possess at the outset of every patient encounter
Reasonable care in exercise: how skill and knowledge must be applied; possessing competence does not discharge the duty if it is exercised carelessly
Normal, prudent practitioner benchmark: calibrated to the same experience and standing; not a standard of perfection but of reasonable professional competence
Specialist elevation: those who hold themselves out as specialists are held to a higher standard commensurate with their claimed expertise and training

The Standard Practice Dictum

Conformity with common professional practice is not necessarily conclusive of non-negligence
Particularly where the alleged negligence concerns conduct not requiring special medical skill or training for its understanding, common practice may itself be found wanting
This dictum was systematized by the Supreme Court of Canada in Ter Neuzen v Korn [1995] 3 SCR 674; see the companion article in this series

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