This is a decision of the Supreme Court of Canada on appeal from the Court of Appeal for Ontario, and it binds every Ontario court. The judges divided three ways, and the vote count on each issue matters.
On October 23, 2026, the Supreme Court of Canada released Hemmings v Padmore, 2026 SCC 34. The Court used an Ontario medical malpractice appeal to restate the two parts of causation in negligence: factual causation and remoteness.
Sophia Hemmings suffered a cardiac arrest during an emergency caesarean section at Scarborough Hospital in 2009 and was left with severe and permanent brain damage. The trial judge held two physicians and the hospital liable. The Court of Appeal reduced that to one physician, and the Supreme Court agreed, by a margin that tells its own story. I wrote about the Court of Appeal’s 2024 decision when it was released.
The Facts
Ms. Hemmings first saw Dr. Lloyd Padmore, an obstetrician, in August 2008 to obtain birth control, not knowing she was pregnant. He did not order a pregnancy test until her fourth visit. She was morbidly obese, which made hers a higher-risk pregnancy. As the Supreme Court summarized the facts, Dr. Padmore did not advise her of the associated risks, including a heightened likelihood of caesarean delivery, anaesthetic complications and cardiac arrest, did not record those risks, and never raised the option of terminating the pregnancy.
On April 8, 2009, about ten days before delivery, Ms. Hemmings called the hospital’s labour and delivery unit complaining of vomiting. The nurse who took the call did not review her prenatal records and did not advise her to seek medical attention.
On April 18, Dr. Padmore sent her to hospital for induction. Labour stalled, and the on-duty obstetrician performed an emergency caesarean section under a spinal anaesthetic given by the on-duty anaesthesiologist, Dr. Neil Jamensky. When Ms. Hemmings panicked, he converted her to a general anaesthetic. Intubation took two attempts, and her blood pressure and pulse fell. Her baby was delivered safely, but she went into cardiac arrest, and the lack of oxygen to her brain caused permanent injury.
Damages were agreed, and the trial was about liability only. The trial judge found Dr. Padmore and Dr. Jamensky negligent and held the hospital liable, both vicariously for the nurse and directly for failing to convey Ms. Hemmings’ history to the delivering obstetricians. He found that the obstetrician who performed the surgery also breached the standard of care, but that her breach did not cause the injury and that the injury was not foreseeable to her. No one appealed that finding. The Court of Appeal set aside the judgments against Dr. Padmore and the hospital, leaving Dr. Jamensky solely liable.
Two Questions, Not One
Factual causation asks whether the breach actually caused the injury, using the but-for test from Clements v Clements, 2012 SCC 32. Remoteness asks whether the injury was a reasonably foreseeable consequence of the breach. Justices Rowe and O’Bonsawin, writing the lead reasons joined by Justice Jamal, put it plainly: “It is essential that factual causation and remoteness of damage remain analytically distinct” (para 43).
All three sets of reasons agree that remoteness, not legal causation or proximate cause, is the term to use. Factual causation still does not require scientific precision or an expert who definitively supports the plaintiff’s theory.
The lead reasons also explain the counterfactual: take the facts that led to the injury, remove the defendant’s negligence, and ask whether the same injury would still have happened. In a simple case that analysis can be inferred. Where there are multiple defendants, a long gap between breach and injury, competing causal theories or equivocal expert evidence, it may need to be explicit, and failing to do it is an error of law (para 87).
On remoteness, a defendant is liable only for consequences reasonably foreseeable at the time of the breach, from that defendant’s vantage point, judged by the skill and knowledge of a reasonable practitioner in that position. The risk must be real, not a mere possibility a reasonable person would dismiss as far-fetched. The precise sequence of events need not be foreseeable, but the type of injury must be. The Court rejected the plaintiffs’ call for a more policy-driven approach to health care providers: the scope of liability cannot be set by policy considerations attached to a profession (para 84).
Why the Claims Against the Obstetrician and the Hospital Failed
All seven judges agreed that the trial judge erred on factual causation for the nurse. He found that proper advice on April 8 would have led to induction or an urgent caesarean section that day, but never found that either would have avoided the injury. The experts were divided, and two of the hospital’s experts said she would have been discharged that day. The trial judge also described the causal link as not far-fetched, which applies the remoteness threshold to the but-for test.
The lead reasons then held the injury too remote from both Dr. Padmore’s breaches and the nurse’s. They described the injury as cardiac arrest and brain injury from anaesthetic complications, rejecting a broader framing of physical injury that would sweep in nearly every consequence of a breach.
Two features of the record drove the result. The first was the unappealed finding that the obstetrician at the delivery could not have foreseen the injury. She was at the bedside and had more information than either Dr. Padmore or the nurse. The trial judge never explained how an injury unforeseeable to her could be foreseeable to an obstetrician who saw the patient months earlier, or to a nurse on the phone ten days earlier. The second was the expert evidence. Publications in evidence put the added risk of these complications at about 1.5 percent for morbidly obese pregnant women, on top of a 1.5 percent baseline. One of the plaintiffs’ own expert obstetricians testified that he would not necessarily have mentioned anaesthetic complications to such a patient. The lead reasons treated that disclosure evidence as relevant to foreseeability and held that a real risk foreseeable to Dr. Padmore or the nurse was not proved (paras 125 to 129).
Why the Anaesthesiologist Remained Liable
Six judges upheld the finding against Dr. Jamensky. The trial judge found that he converted to a general anaesthetic before trying reasonable alternatives: he did not wait for the sedative to take full effect, there was no fetal distress requiring speed, and he did not give Ms. Hemmings’ sister an adequate chance to calm her. The uncontroverted expert evidence was that a panicking patient can almost always be calmed. The trial judge also rejected the theory that an amniotic fluid embolism caused the arrest. (Compare Bendah v Fleming, where an amniotic fluid embolism defeated causation.) Because breach and injury were close in time and clearly connected, the counterfactual could be inferred.
How the Court Divided
Justice Martin, with Justices Karakatsanis and Moreau, would have restored the judgment against Dr. Padmore. She doubted that the trial judge made any remoteness finding for the delivering obstetrician, and in any event that obstetrician’s breach was a failure to assess the situation in front of her. Dr. Padmore’s was a failure to disclose the risks of a high-risk pregnancy and the option of avoiding them. Those very risks, including anaesthetic complications and cardiac arrest, materialized. Drawing on informed consent law under Reibl v Hughes, [1980] 2 S.C.R. 880, she reasoned that when the undisclosed risk is the one that occurs, remoteness rarely poses a problem. She agreed the hospital claim failed, because a call about vomiting had no apparent connection to what went wrong at delivery.
Chief Justice Wagner would have set aside every finding of liability, including against Dr. Jamensky, because the trial judge conflated the two tests throughout. But he agreed with Justice Martin that the injuries were not too remote from Dr. Padmore’s conduct. In his view, the finding for the delivering obstetrician was itself flawed, because it asked whether she could anticipate another doctor’s negligence. He pointed to evidence of a risk as high as 3 percent combined with catastrophic potential harm (paras 264 and 270).
The arithmetic matters. The Court upheld the dismissal of the claim against Dr. Padmore four to three. On whether the injuries were too remote from his conduct, four judges said no and three said yes. The Chief Justice described his remoteness comments as unnecessary to his result, so they are not binding, but he endorsed the lead reasons’ restatement of principle. We would expect Ontario courts to apply that restatement as settled law, and to read its application to Dr. Padmore as a result on this record rather than a rule that such injuries are too remote.
Both sides have force. For the defence, the plaintiffs’ own expert undercut foreseeability, and a broad category of pregnancy-related risks could expose physicians to liability for almost any harm after a non-disclosure. For plaintiffs, the undisclosed risk is the one that came to pass, and the outcome turned partly on an unappealed finding about a different doctor.
Why This Decision Matters
Factual causation and remoteness must be argued and decided separately for each defendant, and the far-fetched threshold belongs only to remoteness. Claims against providers whose care came well before the injury will need evidence of what would have happened on that earlier date. Expert evidence about which risks should be disclosed may double as evidence on foreseeability. And an unappealed finding in favour of one defendant can shape the result against others: the Court refused to revisit the finding for the delivering obstetrician because no one challenged it and she was not before the Court.
On appellate deference to causation findings, the Court cited the Court of Appeal’s decision in Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, 77 C.C.L.T. (4th) 206.
Practical Lessons for Patients and Families
- A finding of negligence is not the end of the case. The trial judge found that four health professionals fell below the standard of care. Only one was ultimately held responsible. For each provider, a plaintiff must also prove that the breach caused the injury and that the injury was foreseeable, and both get harder the further the error is from the injury.
- One responsible defendant can be enough. When several people are negligent and each breach is a necessary cause of the injury, each is liable for the whole loss. Dr. Jamensky remains liable for Ms. Hemmings’ agreed damages.
- These cases are expert-driven and long. The injury occurred in 2009; the final answer came in 2026. Our explanation of how we evaluate medical malpractice cases in Ontario describes the early work involved.
Speak With Paul Cahill
If you or a family member suffered a serious injury during pregnancy, childbirth or surgery, Paul Cahill can review what happened, what the records show and whether qualified experts are likely to support a claim against each provider involved. Paul is a partner at Davidson Cahill Morrison LLP and is certified by the Law Society of Ontario as a Specialist in Civil Litigation. Every case depends on its own facts and expert evidence. To arrange a confidential consultation, contact Paul.
Hemmings v Padmore, 2026 SCC 34, on appeal from 2024 ONCA 318, [2024] O.J. No. 1918 (Lexis), varying 2022 ONSC 2674, [2022] O.J. No. 2127 (Lexis).
Hemmings v Padmore: The Supreme Court of Canada Separates Factual Causation from Remoteness
A cardiac arrest during an emergency caesarean section left Sophia Hemmings with permanent brain damage. The Supreme Court of Canada upheld the anaesthesiologist's liability but not her obstetrician's or the hospital's, and restated how factual causation and remoteness work in negligence claims. On remoteness, the vote count tells its own story.
This is a decision of the Supreme Court of Canada on appeal from the Court of Appeal for Ontario, and it binds every Ontario court. The judges divided three ways, and the vote count on each issue matters.
On October 23, 2026, the Supreme Court of Canada released Hemmings v Padmore, 2026 SCC 34. The Court used an Ontario medical malpractice appeal to restate the two parts of causation in negligence: factual causation and remoteness.
Sophia Hemmings suffered a cardiac arrest during an emergency caesarean section at Scarborough Hospital in 2009 and was left with severe and permanent brain damage. The trial judge held two physicians and the hospital liable. The Court of Appeal reduced that to one physician, and the Supreme Court agreed, by a margin that tells its own story. I wrote about the Court of Appeal’s 2024 decision when it was released.
The Facts
Ms. Hemmings first saw Dr. Lloyd Padmore, an obstetrician, in August 2008 to obtain birth control, not knowing she was pregnant. He did not order a pregnancy test until her fourth visit. She was morbidly obese, which made hers a higher-risk pregnancy. As the Supreme Court summarized the facts, Dr. Padmore did not advise her of the associated risks, including a heightened likelihood of caesarean delivery, anaesthetic complications and cardiac arrest, did not record those risks, and never raised the option of terminating the pregnancy.
On April 8, 2009, about ten days before delivery, Ms. Hemmings called the hospital’s labour and delivery unit complaining of vomiting. The nurse who took the call did not review her prenatal records and did not advise her to seek medical attention.
On April 18, Dr. Padmore sent her to hospital for induction. Labour stalled, and the on-duty obstetrician performed an emergency caesarean section under a spinal anaesthetic given by the on-duty anaesthesiologist, Dr. Neil Jamensky. When Ms. Hemmings panicked, he converted her to a general anaesthetic. Intubation took two attempts, and her blood pressure and pulse fell. Her baby was delivered safely, but she went into cardiac arrest, and the lack of oxygen to her brain caused permanent injury.
Damages were agreed, and the trial was about liability only. The trial judge found Dr. Padmore and Dr. Jamensky negligent and held the hospital liable, both vicariously for the nurse and directly for failing to convey Ms. Hemmings’ history to the delivering obstetricians. He found that the obstetrician who performed the surgery also breached the standard of care, but that her breach did not cause the injury and that the injury was not foreseeable to her. No one appealed that finding. The Court of Appeal set aside the judgments against Dr. Padmore and the hospital, leaving Dr. Jamensky solely liable.
Two Questions, Not One
Factual causation asks whether the breach actually caused the injury, using the but-for test from Clements v Clements, 2012 SCC 32. Remoteness asks whether the injury was a reasonably foreseeable consequence of the breach. Justices Rowe and O’Bonsawin, writing the lead reasons joined by Justice Jamal, put it plainly: “It is essential that factual causation and remoteness of damage remain analytically distinct” (para 43).
All three sets of reasons agree that remoteness, not legal causation or proximate cause, is the term to use. Factual causation still does not require scientific precision or an expert who definitively supports the plaintiff’s theory.
The lead reasons also explain the counterfactual: take the facts that led to the injury, remove the defendant’s negligence, and ask whether the same injury would still have happened. In a simple case that analysis can be inferred. Where there are multiple defendants, a long gap between breach and injury, competing causal theories or equivocal expert evidence, it may need to be explicit, and failing to do it is an error of law (para 87).
On remoteness, a defendant is liable only for consequences reasonably foreseeable at the time of the breach, from that defendant’s vantage point, judged by the skill and knowledge of a reasonable practitioner in that position. The risk must be real, not a mere possibility a reasonable person would dismiss as far-fetched. The precise sequence of events need not be foreseeable, but the type of injury must be. The Court rejected the plaintiffs’ call for a more policy-driven approach to health care providers: the scope of liability cannot be set by policy considerations attached to a profession (para 84).
Why the Claims Against the Obstetrician and the Hospital Failed
All seven judges agreed that the trial judge erred on factual causation for the nurse. He found that proper advice on April 8 would have led to induction or an urgent caesarean section that day, but never found that either would have avoided the injury. The experts were divided, and two of the hospital’s experts said she would have been discharged that day. The trial judge also described the causal link as not far-fetched, which applies the remoteness threshold to the but-for test.
The lead reasons then held the injury too remote from both Dr. Padmore’s breaches and the nurse’s. They described the injury as cardiac arrest and brain injury from anaesthetic complications, rejecting a broader framing of physical injury that would sweep in nearly every consequence of a breach.
Two features of the record drove the result. The first was the unappealed finding that the obstetrician at the delivery could not have foreseen the injury. She was at the bedside and had more information than either Dr. Padmore or the nurse. The trial judge never explained how an injury unforeseeable to her could be foreseeable to an obstetrician who saw the patient months earlier, or to a nurse on the phone ten days earlier. The second was the expert evidence. Publications in evidence put the added risk of these complications at about 1.5 percent for morbidly obese pregnant women, on top of a 1.5 percent baseline. One of the plaintiffs’ own expert obstetricians testified that he would not necessarily have mentioned anaesthetic complications to such a patient. The lead reasons treated that disclosure evidence as relevant to foreseeability and held that a real risk foreseeable to Dr. Padmore or the nurse was not proved (paras 125 to 129).
Why the Anaesthesiologist Remained Liable
Six judges upheld the finding against Dr. Jamensky. The trial judge found that he converted to a general anaesthetic before trying reasonable alternatives: he did not wait for the sedative to take full effect, there was no fetal distress requiring speed, and he did not give Ms. Hemmings’ sister an adequate chance to calm her. The uncontroverted expert evidence was that a panicking patient can almost always be calmed. The trial judge also rejected the theory that an amniotic fluid embolism caused the arrest. (Compare Bendah v Fleming, where an amniotic fluid embolism defeated causation.) Because breach and injury were close in time and clearly connected, the counterfactual could be inferred.
How the Court Divided
Justice Martin, with Justices Karakatsanis and Moreau, would have restored the judgment against Dr. Padmore. She doubted that the trial judge made any remoteness finding for the delivering obstetrician, and in any event that obstetrician’s breach was a failure to assess the situation in front of her. Dr. Padmore’s was a failure to disclose the risks of a high-risk pregnancy and the option of avoiding them. Those very risks, including anaesthetic complications and cardiac arrest, materialized. Drawing on informed consent law under Reibl v Hughes, [1980] 2 S.C.R. 880, she reasoned that when the undisclosed risk is the one that occurs, remoteness rarely poses a problem. She agreed the hospital claim failed, because a call about vomiting had no apparent connection to what went wrong at delivery.
Chief Justice Wagner would have set aside every finding of liability, including against Dr. Jamensky, because the trial judge conflated the two tests throughout. But he agreed with Justice Martin that the injuries were not too remote from Dr. Padmore’s conduct. In his view, the finding for the delivering obstetrician was itself flawed, because it asked whether she could anticipate another doctor’s negligence. He pointed to evidence of a risk as high as 3 percent combined with catastrophic potential harm (paras 264 and 270).
The arithmetic matters. The Court upheld the dismissal of the claim against Dr. Padmore four to three. On whether the injuries were too remote from his conduct, four judges said no and three said yes. The Chief Justice described his remoteness comments as unnecessary to his result, so they are not binding, but he endorsed the lead reasons’ restatement of principle. We would expect Ontario courts to apply that restatement as settled law, and to read its application to Dr. Padmore as a result on this record rather than a rule that such injuries are too remote.
Both sides have force. For the defence, the plaintiffs’ own expert undercut foreseeability, and a broad category of pregnancy-related risks could expose physicians to liability for almost any harm after a non-disclosure. For plaintiffs, the undisclosed risk is the one that came to pass, and the outcome turned partly on an unappealed finding about a different doctor.
Why This Decision Matters
Factual causation and remoteness must be argued and decided separately for each defendant, and the far-fetched threshold belongs only to remoteness. Claims against providers whose care came well before the injury will need evidence of what would have happened on that earlier date. Expert evidence about which risks should be disclosed may double as evidence on foreseeability. And an unappealed finding in favour of one defendant can shape the result against others: the Court refused to revisit the finding for the delivering obstetrician because no one challenged it and she was not before the Court.
On appellate deference to causation findings, the Court cited the Court of Appeal’s decision in Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, 77 C.C.L.T. (4th) 206.
Practical Lessons for Patients and Families
Speak With Paul Cahill
If you or a family member suffered a serious injury during pregnancy, childbirth or surgery, Paul Cahill can review what happened, what the records show and whether qualified experts are likely to support a claim against each provider involved. Paul is a partner at Davidson Cahill Morrison LLP and is certified by the Law Society of Ontario as a Specialist in Civil Litigation. Every case depends on its own facts and expert evidence. To arrange a confidential consultation, contact Paul.
Hemmings v Padmore, 2026 SCC 34, on appeal from 2024 ONCA 318, [2024] O.J. No. 1918 (Lexis), varying 2022 ONSC 2674, [2022] O.J. No. 2127 (Lexis).
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
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