Case Law

Landmark Canadian medical-malpractice and personal-injury decisions, organized by the legal principle each one established, written in plain language.

Duty of Care

When the law recognizes a relationship that obliges one person to take reasonable care to avoid harming another, the foundation of every negligence claim.

Donoghue v Stevenson: The Snail, the Ginger Beer, and the Foundation of Every Duty of Care in Canadian Medical Malpractice Law
In August 1928, a woman in Paisley, Scotland drank ginger beer from an opaque bottle and fell ill. The bottle allegedly contained the decomposed remains of a snail. She had not bought the bottle herself; her friend had. She had no contract with the manufacturer. Under the law as it stood, she had no legal remedy.
Malinowski v Schneider: Informed Consent, Diagnostic Standards, and Catastrophic Risk in Chiropractic Practice
Chiropractic manipulation of the lumbar spine carries risks that are rare but, when they materialize, catastrophic and permanent. The most serious is cauda equina syndrome, a compression of the bundle of nerve roots at the base of the spinal canal that can cause permanent bowel and bladder incontinence, sexual dysfunction, leg weakness, and chronic pain. It is not a theoretical risk. It is a documented consequence of lumbar spinal manipulation in patients with existing disc herniation, and it is irreversible.
Wenden v Trikha: The Case That Defined When Psychiatrists and Hospitals Owe a Duty of Care to Strangers Their Patients Might Harm
At approximately 3:00 p.m. on Sunday, January 12, 1986, Johanna Wenden was driving through the intersection of 82nd Street and the Yellowhead Trail in Edmonton when a car ran the red light at high speed and struck hers. She was not at fault. She was thirty-nine years old. The collision left her with serious brain damage.

Liability

Who is answerable for negligent harm, the standard of care expected of professionals, the "error of judgment" line, and vicarious liability for the acts of others.

Ahmed v Stefaniu: Psychiatric Negligence, the Involuntary-to-Voluntary Status Decision, and Liability for Harm to Third Parties
On January 24, 1997, William Johannes entered his sister's apartment and killed her. He was, at the time, in a floridly psychotic, acutely delusional state in which he believed she was possessed by the devil. He was subsequently found not criminally responsible by reason of mental disorder.
Bailey v Young: Placental Abruption, Expectant Management, and a $4.6 Million Settlement — Court Approval of a Minor’s Settlement and Contingency Fees in Nova Scotia Birth Injury Litigation
On January 29, 2013, Jayden Bailey was born at the Izaak Walton Killam Health Centre in Halifax (Atlantic Canada's primary maternal and pediatric tertiary care hospital) at less than 31 weeks gestation. He was extremely premature. He suffered a brain injury at or around the time of his birth. That injury caused cerebral palsy, motor dysfunction, and intellectual disability. He was eight years old when this case came before Chief Justice Deborah K. Smith of the Nova Scotia Supreme Court for approval of a $4.6 million settlement.
Bazley v Curry: The Supreme Court of Canada Decision That Defined Vicarious Liability for Institutional Abuse in Healthcare and Therapeutic Settings
Most legal precedents address what happened. A small number address why it should matter, and those are the ones that reshape entire areas of law. Bazley v Curry is one of the latter. The case did not involve a physician, a hospital, or a medication. It arose from the abuse of a child in a residential care facility. But the principle it established (that an institution can bear legal responsibility for harm caused by an employee it did not negligently hire and could not have anticipated would cause harm) has reached deep into Canadian institutional liability law, and into the law governing hospitals, psychiatric facilities, psychotherapy practices, and every other setting in which vulnerable people are placed under the authority and care of trusted professionals.
Burt and Seward v LeLacheur: Discoverability and the Twelve-Month Clock for Nova Scotia Wrongful Death Claims
Every fatal accident claim in Nova Scotia begins with the same foundational question: does the death satisfy the legal conditions required to support a civil action for damages? And it faces the same urgent pressure: the twelve-month limitation period in s. 10 of the Nova Scotia Fatal Injuries Act is among the shortest for any civil claim in Canada. The relationship between those two facts (what a wrongful death claim requires, and when the clock on it starts running) was addressed directly and authoritatively by the Nova Scotia Court of Appeal in Burt and Seward v LeLacheur.
Cheung v Samra: When a Jury Finds Negligence but Cannot Explain How — Causation, Jury Verdicts, and the Limits of the Trial Judge’s Power to Order a New Trial
A baby is born with an Apgar score of 1, near death. She is resuscitated over thirty minutes. She appears to recover. Two and a half months later she suffers a catastrophic seizure and becomes profoundly disabled: hypotonic cerebral palsy, unable to walk, talk or eat, fed through a tube, requiring assistance with every aspect of daily living. Her parents believe that the doctors managing her mother's pregnancy failed to deliver her sooner, and that if they had, this would never have happened. A jury of six Ontario citizens sits through twenty-two days of evidence from some of the most highly credentialed physicians in North America, deliberates, and returns a unanimous verdict: both doctors were negligent, and their negligence caused Rhonda's brain damage.
Crits v Sylvester: The Exploding Anaesthetic Case That Gave Canada Its Medical Standard of Care
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.
Deboer v Kolyn: Missed Breast Cancer, Discordant Biopsies, and the Tumour Biology Defence
Janice DeBoer was 45 years old in the summer of 2009 when she noticed a lump in her right breast. She had felt lumps before; she had even had two fibroadenomas removed from her breasts in 2002 under the care of the same surgeon, Dr. Kolyn. She went for imaging. A radiologist assessed her mammogram as "probably benign." Her surgeon, relying on that assessment, did not order further imaging. When a new lump appeared in the same breast, the surgeon biopsied it without image guidance, got a discordant result, and did not act on it. In the meantime, Mrs. DeBoer went ahead with breast augmentation surgery. During that surgery, both lumps were removed and sent for pathology. The pathology returned: invasive ductal carcinoma.
Dudas v Munro: Fetal Distress, Timing, and the Boundary Between Misadventure and Negligence in Obstetric Practice
Catherine Dudas was born on December 4, 1984 at Grace Hospital in Vancouver. She was born pale, limp, and without a discernible heartbeat, requiring immediate and prolonged resuscitation. Analysis after birth revealed severe acidosis from oxygen deprivation and severe anemia from a massive fetal-maternal hemorrhage in which the fetus had lost two thirds of her blood into the maternal circulation. By the time of trial in 1997, when Catherine was twelve years old, she had moderate mental retardation, could not walk or stand without assistance, and had an almost complete absence of verbal language. She had complex cerebral palsy with spasticity in her lower limbs, severe limitation in motor skills, and palsy involving the muscles of speech and movement of her tongue.
Jacobi v Griffiths: Where the Bazley Enterprise Risk Test Draws Its Line — and Why Three Supreme Court Justices Disagreed
When the Supreme Court of Canada handed down Bazley v Curry on June 17, 1999, it simultaneously released its decision in Jacobi v Griffiths, a companion case decided the same day, by the same court, under the same enterprise risk framework, and reaching the opposite result. Where Bazley found vicarious liability, Jacobi did not. The margin was four justices to three.
Khan v Lee: Pleading a Medical Malpractice Claim — What You Must Say, and What You Cannot Yet Be Required to Prove
Rahim Khan was born on May 15, 1991, following an emergency Caesarean section. He suffered permanent brain damage resulting in serious mental and physical impairments. His parents believed that the obstetrician who oversaw Bibi Khan's pregnancy and Rahim's delivery, Dr. Joseph Lee, was responsible. In April 2011, almost twenty years after the birth, they issued a statement of claim.
MacLean et al v MacDonald: Why a Fifteen-Year-Old Boy’s Estate Could Not Recover His Lost Lifetime Earnings — and What That Means for Every Nova Scotia Fatal Accident Claim
Paul Levy was fifteen years old when a car struck him as he crossed the street in January 1999. He died from his injuries. The driver of the car was Douglas MacDonald.
Miller et al v Dow et al: Fetal Monitoring Standards, the Level-of-Hospital Question, and Causation in a Birth Injury Death Case
Jordan Miller was born on March 4, 1998 at the Carleton Memorial Hospital in Woodstock, New Brunswick. He was born not breathing. He required urgent resuscitation. He suffered oxygen deprivation that caused hypoxic ischemic encephalopathy and severe, permanent neurological damage. He had cerebral palsy. He could not walk, stand, sit up, hold his head up, roll over, see, speak, or communicate in any way. He was completely dependent on others for his entire life. He died on September 19, 2010. He was twelve years old.
Rowe v Brown: Why Nova Scotia’s Fatal Injuries Act Does Not Compensate for Grief — and What That Means for Every Wrongful Death Claim in the Province
When a person dies through another's negligence, their family suffers. They suffer financially: the loss of income, support, and services the deceased would have provided. They suffer relationally: the loss of the care, guidance, and companionship the deceased represented in their lives. And they suffer emotionally: the grief, sorrow, and psychological distress that death through negligence produces in those who loved the person killed.
Suwary v Librach: Occult Cord Prolapse, Operative Vaginal Delivery, and Causation Where the Insult Preceded the Intervention
Robert Suwary was born on January 29, 1999, at Women's College Hospital in Toronto. He arrived in the world with no detectable heart rate. He began to breathe six minutes after delivery. His Apgar score was 0. The acute near total interruption in blood supply to his brain during the minutes of his birth left him with one of the most severe forms of cerebral palsy, affecting his entire body: cognitive and communication delays, learning disabilities, limited expressive speech, articulation difficulties, and feeding and swallowing challenges.
Ter Neuzen v Korn: HIV, Artificial Insemination, and the Rule That Common Practice Is Not Always a Defence
Canadian medical malpractice law rests on a principle that protects physicians who act in accordance with the established practices of their profession. That principle is real, well-founded, and essential to the fair assessment of clinical conduct. But it has a limit. Ter Neuzen v Korn is the Supreme Court of Canada decision that defines that limit, establishing precisely when common professional practice is a complete answer to an allegation of negligence, and precisely when it is not.
Wilson v Swanson: Error in Judgment vs. Negligence and the Surgeon’s Intraoperative Decision
Medicine is practised in real time, with imperfect information, under the pressure of consequences that cannot be delayed. A surgeon opening a patient's abdomen and looking at a lesion that may or may not be cancer cannot pause the moment, order further tests, and wait for a clearer picture. They must make a decision. They must make it now. And they must make it without any knowledge of whether, years later, a court will agree with them.

Causation

Proving that the defendant's negligence, and not some other cause, produced the injury, the "but for" test and the Supreme Court of Canada's refinements.

Benhaim v St-Germain: Adverse Inference, Causation, and the Limits of What Negligence Can Prove — The Supreme Court of Canada’s Leading Delayed Cancer Diagnosis Decision
The hardest causation problem in all of medical malpractice is not proving that a physician was negligent. It is proving that the negligence made a difference. And nowhere is this harder than in delayed cancer diagnosis, where the physician's failure to investigate a finding destroys the very evidence that would show what stage the cancer was at when it should have been found.
Clements v Clements: Material Contribution to Risk — When the But-For Test Can Be Set Aside and When It Cannot
On August 7, 2004, Joan and Joseph Clements were riding their motorcycle through wet weather in British Columbia, heading from Prince George toward Kananaskis, Alberta. The bike was overloaded by approximately 100 pounds. A nail had punctured the rear tire without Mr. Clements's knowledge. When he accelerated to at least 120 km/h in a 100 km/h zone to pass a car, the nail fell out, the tire deflated, and the bike began to wobble. He could not regain control. Mrs. Clements was thrown off. She suffered a severe traumatic brain injury.
KS v Willox: Causation by Omission, Regional Standards of Care, and the Causal Chain in a Failed Birth Injury Claim
K.S. was born on October 24, 2000, at 23 weeks' gestation, weighing just under one and a half pounds. He was born at the Royal Alexandra Hospital in Edmonton after his mother was airlifted from Peace River. By the time of trial he was 15 years old. He had severe cognitive deficits from the loss of white brain matter. He was blind in one eye. He was hypersensitive to external stimuli and could not hold a conversation. He had recently been diagnosed at the Glenrose Hospital with severe Autistic Spectrum Disorder. He would require full-time support for the rest of his life.
Murray Estate v Advocate Contracting Ltd: The Nova Scotia Supreme Court Decision That Benchmarked What a Family’s Loss of Guidance, Care and Companionship Is Worth
Every number in a fatal accident claim is, in some sense, a translation, an attempt to render in dollars a loss that cannot be measured in dollars. When a mother dies and leaves behind a husband of thirteen years and two young children, the question of what that family has lost is answerable in human terms: the care that will no longer be given, the guidance that will no longer be received across all the years ahead, the daily presence of someone around whom the family's life was built. The question of what that loss is worth in money is a different and harder question, and it is the question that courts must nonetheless answer.
Snell v Farrell: Causation by Inference — The Robust and Pragmatic Approach to Proving Causation in Canadian Medical Malpractice Law
Margaret Snell was seventy years old and legally blind in her right eye. She had a cataract. Surgery could restore some useful vision. It was an elective procedure (there was no urgency), and her ophthalmologist, Dr. D.H. Farrell, explained the operation and its risks before she consented. What happened during that surgery, and specifically what caused the permanent and total loss of sight in her right eye, became the central question in a case that reached the Supreme Court of Canada and produced the country's definitive ruling on how causation must be proved in a medical malpractice claim.
Uribe v Tsandelis: The SOGC “Prepare for Delivery” Obligation, Causation by Omission, and Jury Verdicts in Multi-Defendant Birth Injury Cases
Elijah Uribe was born on April 29, 2010, at Grand River Hospital in the Kitchener area of Ontario. By the time he was delivered at 10:49 in the morning, he had been without adequate oxygen for too long. He suffers from severe cerebral palsy and other serious medical conditions.
Wilton v Genik: The Inevitable Death Defence in Cardiac Malpractice and Causation Under Lawson v Laferriere
The trial lasted six days. The trial judge found that the defendant doctor, Dr. Jeffrey Genik, was negligent, and Dr. Genik did not appeal that finding. He had failed to take an appropriate patient history. He had failed to perform another ECG. He had failed to reach an appropriate diagnosis. He had failed to give appropriate discharge advice. These are foundational errors in the emergency assessment of a patient with cardiac symptoms. In any other circumstances they might be the beginning of a successful medical malpractice action by the family of a man who died of a cardiac event on October 12th.

Damages

How Canadian courts measure compensation, from the 1978 Supreme Court trilogy to the cap on non-pecuniary (pain and suffering) damages.

Andrews v Grand & Toy Alberta Ltd: The Case That Capped Pain and Suffering Damages for Every Injured Canadian
There is a number in Canadian law that almost everyone involved in personal injury or medical malpractice litigation knows: the non-pecuniary damages cap. As of the mid-2020s it stands at approximately $462,000 to $470,000, adjusted for inflation from a figure set in 1978. That original figure, $100,000, came from this case.
Arnold v Teno: A Four-Year-Old Girl in Windsor, a Ringing Ice Cream Truck, and the Question of Whether the Cap Applies to Children
Of the three cases in the 1978 Damages Trilogy, Arnold v Teno presents the facts that are the most difficult to read. A four-and-a-half-year-old girl. A bright summer holiday. The sound of bells from an ice cream truck. And then, in the seconds it took for a car to reach an intersection and for a small child to cross back in front of a parked truck, a catastrophic brain injury that would define the rest of her life.
Guimond v Guimond Estate: Confirming the Benchmark and Clarifying Apportionment for Section 10 Fatal Accidents Act Claims in New Brunswick
Five years after Mazerall v Nightingale gave New Brunswick's grief and loss of companionship provisions their foundational principles, the New Brunswick Court of Appeal returned to the same territory in Guimond v Guimond Estate. The case arose from unusual facts (the claims were brought against the estate of the person who had caused the fatal accident), and it addressed a specific question that Nightingale had left open: what happens to the Section 3(4) award when there is only one surviving parent to claim it? And more broadly, does the Act require equal apportionment between parents?
Mazerall v Nightingale: The New Brunswick Court of Appeal’s Foundational Statement on Grief and Loss of Companionship Damages for the Death of a Child
On November 19, 1988, Marc and Betty Nightingale were driving with their two children (Kale Joseph Douglas, age six, and Alicia Jean, age nine months) when their vehicle was struck from behind. Both children were killed. Liability was admitted by the defendant Olive Mazerall.
The 1978 Canadian Damages Trilogy: Andrews, Arnold, and Thornton – The Supreme Court Cases That Capped Pain and Suffering Awards Across Canada
On January 19, 1978, the Supreme Court of Canada handed down three decisions simultaneously. Each arose from a devastating, life-altering injury. Each involved a young person left permanently disabled through someone else's negligence. And together, the three decisions fundamentally reshaped how Canadian courts calculate and award damages in personal injury cases, establishing principles and limits that remain the governing law nearly five decades later.
Thornton v Board of School Trustees of School District No. 57: The Gymnast, the Springboard, and the School’s Duty of Care
Gary Thornton was fifteen and a half years old, six feet three inches tall, and described in evidence as the epitome of the all-round athlete when he stepped up to attempt an aerial front somersault at Kelly Road Secondary School in Prince George, British Columbia. The jump that April afternoon in 1971 was the first time he had tried this specific exercise. No one had given him specific instruction on how to do it. The instructor was at his desk doing paperwork.

Duty of Care

Liability

Causation

Damages

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