Noel v Hawrylyshyn: Battery, Informed Consent, and Urgent Operative Delivery

A mother in labour. A fetus suddenly in serious distress. An obstetrician faced with the urgent clinical choice among vacuum-assisted vaginal delivery, forceps-assisted vaginal delivery, and emergency caesarean section. A mother who had said she did not want vacuum or forceps and would prefer caesarean section if intervention was needed. A baby ultimately delivered by C-section after both the vacuum and forceps attempts had failed. Catastrophic neonatal events. Lifelong neurodevelopmental consequences.

This is a difficult fact pattern in any malpractice litigation. The plaintiff theory is broad: battery, because the mother had said she did not want the instruments; inadequate informed consent, because the risks and benefits were not adequately disclosed; multiple breaches of the standard of care across the antenatal and intrapartum periods; and causation linking the neonatal events to the later neurodevelopmental outcomes. Each ground is contested. Each requires its own evidentiary foundation. The trial proceeds for seventeen days.

Noel v Hawrylyshyn, 2024 ONSC 4525, is the Ontario Superior Court of Justice’s dismissal of this kind of action. After a 17-day bench trial before Justice Robert Centa, the court found no liability on any of the seven grounds advanced. The trial judge separately addressed battery, informed consent, five distinct standard-of-care allegations, and causation in the alternative. Each was rejected on the evidence.

The case is doctrinally important for several reasons. It is a clean illustration of the battery vs informed consent distinction, two distinct causes of action with different elements and different analytical frameworks. It applies the Reibl v Hughes, [1980] 2 SCR 880, modified objective causation test as a defence framework in an emergent clinical setting. It articulates the operative urgency framework that narrows the disclosure analysis in time-critical clinical decisions. It illustrates multi-ground dismissal as a particularly durable defence outcome. And it provides a useful counterpoint to plaintiff-favourable causation doctrine like that in Hasan v Trillium — Hasan shows the Snell v Farrell “scientific proof not required” framework supporting plaintiff causation; Noel shows the same framework operating against the plaintiff where the evidence is insufficient to support even a common-sense inference.

This is also a case with a difficult human dimension. The child is now nineteen years old. He lives with executive functioning problems and neurodevelopmental limitations. The legal analysis proceeds against that reality, and the outcome of the case does not change it. The substantive analysis below addresses the doctrine; the human cost remains.

The clinical context: operative vaginal delivery

Operative vaginal delivery refers to the use of either a vacuum extractor or obstetrical forceps to assist delivery of a fetus through the vaginal canal. The procedure is an alternative to caesarean section in selected clinical circumstances:

• Maternal exhaustion or inadequate maternal effort in the second stage
• Fetal distress requiring expedited delivery where vaginal delivery appears imminent
• Prolonged second stage of labour
• Specific maternal medical conditions where the Valsalva maneuver of pushing is contraindicated

Vacuum-assisted delivery. A soft or rigid cup is applied to the fetal scalp with suction. The obstetrician applies traction synchronized with maternal contractions and active pushing. Modern vacuum systems include pressure monitoring and pop-off mechanisms designed to disengage if excessive force is applied or if the cup detaches. The technique requires identification of the fetal vertex, correct cup placement, application timing, and recognition of when to abandon the attempt.

Forceps-assisted delivery. Paired curved metal instruments are applied to the fetal head. Different forceps types (Simpson, Kielland, Tucker-McLane, Piper, and others) have different applications based on fetal head position, station, and clinical circumstance. The obstetrician applies traction during maternal contractions. Correct application requires precise placement on the fetal head with the blades resting along the cheek and parietal bones. Improper placement risks serious injury and is a key technical concern.

The “trial of instrumental delivery” approach involves an initial attempt at vacuum or forceps with the explicit contingency of moving to caesarean section if the instrumental approach fails. Failed instrumental delivery is a recognized clinical outcome. The standard of care includes recognizing when to abandon instrumental attempts — typically defined by the number of pulls, the duration of attempts, lack of descent, or specific technical challenges — and proceeding to caesarean section without further delay.

Risks of operative vaginal delivery for the newborn:

• Scalp bruising and lacerations
• Cephalohematoma (subperiosteal hemorrhage; usually self-limiting)
• Subgaleal hemorrhage (between the scalp aponeurosis and skull; potentially serious)
• Intracranial hemorrhage (subdural, subarachnoid, intraventricular; serious)
• Skull fracture (uncommon)
• Facial nerve palsy from forceps (usually transient)
• Retinal hemorrhage (usually self-limiting)

Risks of caesarean section:

• Maternal surgical risks (bleeding, infection, organ injury, deep vein thrombosis, anaesthetic complications)
• Longer maternal recovery and hospital stay
• Neonatal respiratory complications, particularly in caesareans performed before labour onset
• Implications for future pregnancies (uterine rupture risk in trial of labour after caesarean, abnormal placentation in subsequent pregnancies)

The clinical decision in Noel — vacuum, forceps, or caesarean at 19:00h with acute fetal distress and the cervix fully dilated — involves weighing these risk profiles against the time pressure. The fastest delivery is typically the assisted vaginal route in the right circumstances. Emergency caesarean requires operating room preparation, anaesthetic placement or extension, surgical setup, and the procedure itself. In acute fetal distress with the cervix fully dilated and the fetus at a low station, vacuum or forceps may produce delivery faster than emergency caesarean.

SOGC guidelines. The Society of Obstetricians and Gynaecologists of Canada publishes clinical practice guidelines that operate as the recognized standard for obstetric practice in Canada. The guidelines address vacuum-assisted delivery, forceps-assisted delivery, intrapartum fetal monitoring, and other aspects of obstetric care. These guidelines are typically the operative reference for standard-of-care analysis in Canadian obstetric malpractice litigation. The defence obstetrical expert in Noel, Dr. Davies, was a primary author of three SOGC guidelines and contributed to ten others — a strong evidentiary foundation for the defence position on accepted practice.

The substantive facts

June 11, 2005 — labour at Mount Sinai Hospital, Toronto. Ms. Noel was in labour at Mount Sinai. She had progressed through the first stage successfully and entered the second stage of labour.

18:40h. Cervix fully dilated. The mother began active pushing.

18:55h. A nurse noticed sudden and concerning changes in the fetal heart rate. The pattern was sufficient to raise immediate concern about fetal welfare.

18:58h. Dr. Hawrylyshyn, the defendant obstetrician, examined the mother and reviewed the tracing. He concluded that the health of the fetus was in serious danger and that urgent delivery was required.

19:00h to 19:10h. Dr. Hawrylyshyn had a lengthy conversation with the parents about the situation. He explained the significance of the fetal heart decelerations and indicated that delivery without intervention would take too long. He gave the mother three options: vacuum-assisted delivery, forceps-assisted delivery, or emergency caesarean section. His specific recollection — accepted by the trial judge — was telling the mother that his first recommendation was vacuum.

19:10h. Dr. Hawrylyshyn applied the vacuum to the fetal vertex over three contractions. The attempted delivery was unsuccessful.

19:25h. Dr. Hawrylyshyn attempted to apply the forceps. He could not get them into the proper position or lock them. The attempt was abandoned.

19:53h. The baby was delivered by emergency caesarean section.

Neonatal outcomes. The newborn was in distress at delivery. Apgar scores were low. Resuscitation was required. The infant suffered intracranial and extracranial bleeding and seizures both immediately and on the sixth day of life. He was intubated multiple times in the neonatal period and ultimately required bronchial surgery.

Long-term outcomes. At the time of trial in 2024, the child was 19 years old. He lives with executive functioning problems and neurodevelopmental limitations.

The plaintiff’s seven grounds

The plaintiff advanced an unusually broad theory of liability:

1. Battery. The mother had said throughout the pregnancy that she did not want vacuum or forceps and would prefer caesarean if intervention was needed. The use of the instruments without her actual consent (not just inadequate disclosure but actual refusal) constituted battery.
2. Lack of informed consent. Even if some consent was given, the disclosure was inadequate. The risks and benefits of the three options were not properly explained.
3. Antenatal record-keeping negligence. Dr. Allen, a different physician involved in antenatal care, had inadequate record-keeping that affected the labour and delivery decisions.
4. Negligence in caesarean timing. Dr. Hawrylyshyn should have recommended caesarean at 17:00h, well before the acute fetal distress emerged.
5. Negligence in recommending vacuum. The vacuum attempt was inappropriate in the circumstances.
6. Negligence in recommending forceps. The forceps attempt was inappropriate after the failed vacuum.
7. Negligence in actual application. The technique of both attempts was below standard.

The battery analysis

The battery claim rested on the mother’s stated preference, before labour and during labour, against operative vaginal delivery. She wanted a vaginal birth without instruments and would prefer caesarean section if intervention became necessary. Her position was firm.

The defence position was that despite the prior expressed preferences, the mother had actually consented in real time when the urgent clinical situation emerged. The obstetrician testified to the conversation between 19:00h and 19:10h: explanation of the fetal heart decelerations, presentation of three options, recommendation of vacuum as the fastest and safest approach, and the mother’s ultimate agreement to proceed.

The trial judge accepted the obstetrician’s testimony and found that the mother had consented to both the vacuum and the forceps attempts. The reasoning, distilled: the mother wanted a vaginal birth without instruments — that was a clear and persistent preference. But the clinical situation at 19:00h made that preference unviable; the fetus was not tolerating the labour and was at great risk. In that emergent context, Dr. Hawrylyshyn exercised his best clinical judgment and recommended the use of the vacuum and potentially the forceps as the fastest and safest way to deliver the distressed fetus. He addressed the mother’s concerns about those instruments. The court found, as a finding of fact, that the mother made the very difficult decision to use the vacuum and forceps to expedite the delivery of her distressed baby.

The battery claim therefore failed at the consent element. Without absence of consent, there is no battery — and the trial judge found consent was given, even though the consent contradicted prior stated preferences. Prior preferences are not the same as ongoing refusal in the face of changed clinical circumstances.

The battery vs informed consent distinction

A doctrinally important feature of Noel is the clean articulation of the battery vs informed consent distinction. The two are often conflated in malpractice litigation but are doctrinally distinct causes of action with different elements:

Battery:

• Element: contact + absence of consent
• Remedy: damages for the dignitary violation
• No requirement of inadequate disclosure
• No requirement of Reibl v Hughes modified objective causation
• The patient need not show that a reasonable patient would have refused; the patient need only show that this patient did not consent

Informed consent (negligence framework):

• Element: contact + nominal consent + inadequate disclosure + modified objective causation
• Remedy: damages for the consequences of the inadequate disclosure
• The patient must show that the disclosure was below standard
• The patient must show that a reasonable patient in the plaintiff’s circumstances would have refused if properly informed (the Reibl modified objective test)

The two causes operate in different doctrinal universes. Battery is a deliberate tort grounded in the protection of bodily integrity. Informed consent is a negligence framework grounded in the disclosure obligations that arise from the doctor-patient relationship. The plaintiff can plead both, but the elements and remedies differ.

In Noel, both claims were pleaded and both failed. The battery claim failed because the trial judge found actual consent was given. The informed consent claim failed because the disclosure was adequate and the modified objective test indicated a reasonable patient would have consented even if a broader range of information had been provided.

The Reibl v Hughes modified objective test

The Canadian common law framework for informed consent rests on Reibl v Hughes, [1980] 2 SCR 880, and Hopp v Lepp, [1980] 2 SCR 192. The framework requires:

• Disclosure of material risks
• Disclosure of alternatives
• Disclosure of the consequences of not proceeding
• Causation under the modified objective test: would a reasonable patient in the plaintiff’s circumstances have refused the treatment if properly informed?

The modified objective standard combines:

• An objective standard (reasonable patient, not this particular patient)
• Subjective elements (“in the plaintiff’s circumstances” — incorporating personal context like age, family situation, occupation, values relevant to the decision)

The test produces a calibrated analysis: not what the actual plaintiff would have done in hindsight, but what a reasonable patient with this plaintiff’s specific circumstances would have decided if properly informed.

In Noel, the trial judge applied the test and found that a reasonable patient in the mother’s circumstances at 19:00h with the fetus in acute distress would have accepted the obstetrician’s recommendation. The reasoning incorporated:

• The acute and time-critical nature of the situation
• The recommendation of the most experienced clinician available
• The relative speed advantages of vacuum-assisted delivery compared to emergency caesarean in this clinical context
• The risks of each option as they would be presented to a reasonable patient in fetal distress

The test came out in the defendant’s favour. Even if the disclosure had been broader (the trial judge found the actual disclosure was already adequate), a reasonable patient would have consented to the urgent intervention recommended.

The operative urgency framework

A doctrinally important feature of the informed consent analysis in Noel is the operative urgency framework. The reasonable patient analysis is fundamentally calibrated to the clinical context. The reasonable patient in fetal distress with the cervix fully dilated and the fetus deteriorating is not the same as the reasonable patient considering an elective procedure with time to deliberate.

The urgent framework operates in several ways:

• Less comprehensive disclosure is required because comprehensive disclosure would consume time that the clinical situation does not allow
• The patient’s prior preferences become less determinative as the urgency of the situation makes those preferences clinically unviable
• The recommendation of the experienced clinician carries more weight because the patient does not have the time or capacity to independently evaluate alternatives
• A reasonable patient in urgent circumstances will tend to defer to clinical recommendation

The framework is not a complete pass for defendants. The disclosure must still be adequate to support a meaningful decision. The recommendation must still be reasonable. The clinical judgment must still meet the standard of care. But the urgency does narrow the scope of the disclosure analysis and tilts the modified objective test toward acceptance of the recommended intervention.

This framework contrasts with the elective context in Denman v Radovanovic, where the multi-step AVM treatment was elective and the patient had time to deliberate. Denman required disclosure of cumulative risks and the no-treatment alternative. Noel required disclosure adequate to the urgent context. Both apply the Reibl framework, but the operative urgency in Noel changes the calibration.

The five negligence allegations

The trial judge addressed each of the five SOC allegations carefully and rejected all of them. The defence obstetrical expert (Dr. Davies) was preferred over the plaintiff obstetrical expert (Dr. Shone) on each issue. The findings:

Antenatal record-keeping (Dr. Allen). Not breached. The antenatal record-keeping met the standard of practice. The argument that better record-keeping would have changed the labour and delivery decisions was not supported by the evidence.

Timing of caesarean (17:00h decision). Not breached. The decision not to recommend caesarean at 17:00h was within the range of reasonable clinical judgment. The fetal heart rate pattern at that time did not indicate the need for surgical delivery; the acute distress emerged later, at 18:55h.

Vacuum recommendation. Not breached. In the acute fetal distress at 19:00h with the cervix fully dilated, the vacuum-assisted approach was a clinically reasonable recommendation. The trial judge accepted the defence expert analysis that vacuum offered the fastest expected delivery time in the circumstances.

Forceps recommendation. Not breached. When the vacuum attempt failed, attempting forceps before proceeding to caesarean was a clinically reasonable approach. The trial of instrumental delivery framework permits this kind of staged escalation.

Application of instruments. Not breached. The technique used in both the vacuum and forceps attempts met the standard. The fact that both attempts failed was not evidence of substandard technique; failed instrumental delivery is a recognized clinical outcome that does not by itself indicate negligence.

The pattern across the five allegations is consistent: clinical decisions made within the range of reasonable practice, supported by recognized authorities (SOGC guidelines, defence expert testimony), and not subject to retrospective second-guessing based on outcome. This is the standard application of the Wilson v Swanson, [1956] SCR 804, “error of judgment” framework and the ter Neuzen v Korn, [1995] 3 SCR 674, accepted-practice framework.

The causation analysis

Despite the comprehensive standard-of-care findings, the trial judge proceeded to address causation in the alternative. This is a familiar pattern in defendant trial wins — multi-ground analysis produces particularly durable outcomes.

The plaintiff causation theory was that the neonatal events (intracranial bleeding, extracranial bleeding, seizures) caused the child’s later neurodevelopmental limitations. The expert evidence:

• Plaintiff neonatologist (Dr. Marrin): the neonatal events were “not good for brain development”
• Plaintiff pediatric neurologist (Dr. Langburt): agreed
• Plaintiff neuropsychologist (Dr. Lemsky): agreed

The trial judge accepted that the neonatal events were indeed not good for brain development. But the trial judge found this evidence “insufficient to prove that these injuries caused the baby’s neurodevelopmental limitations.” The reasoning, distilled:

• General observations about brain injury being bad for development are not causation findings
• The plaintiff must establish that the specific neonatal injuries caused the specific later neurodevelopmental outcomes
• The evidence did not link the specific events to the specific outcomes with sufficient specificity to support a finding on the balance of probabilities

Importantly, the trial judge explicitly engaged the “scientific proof not required” framework: while scientific proof of causation is not required, the evidence of causation presented by the plaintiffs was not sufficient to permit the trial judge to draw a common-sense inference of causation.

The “scientific proof not required” framework operating symmetrically

This passage from the trial judgment is doctrinally significant. The Snell v Farrell, [1990] 2 SCR 311, framework — recently articulated as plaintiff-friendly in Hasan v Trillium — operates symmetrically. The framework:

• The plaintiff need not prove the specific causal mechanism with scientific certainty
• The trier of fact applies common sense and the totality of the evidence
• Where the evidence supports an inference of causation, the trier may draw it
• Where the evidence does not support such an inference, even the relaxed framework will not save the claim

Hasan shows the framework supporting plaintiff causation where the evidence supports the inference (evidentiary gap from defendant negligence + available treatments + likely outcome). Noel shows the framework operating against the plaintiff where the evidence does not support the inference (general expert observations + specific bad outcomes ≠ specific causal link).

The framework is not a free pass. It permits trier-of-fact discretion where the evidence justifies it. The plaintiff must still produce evidence sufficient to support the inference. Where the evidence is too general — too aggregate, too aspirational, too distant from the specific causal question — the inference cannot be drawn even under the relaxed standard.

The contrast with Hasan is instructive:

• In Hasan: the defendant negligence created the evidentiary gap; the plaintiff expert evidence established available treatments and likely outcomes; the inference of causation was supported.
• In Noel: no evidentiary gap; the plaintiff expert evidence established only general propositions (brain injury is bad for development) without linking specific events to specific outcomes; the inference was not supported.

Multi-ground dismissal as a defence strategy

Noel v Hawrylyshyn is another example of multi-ground dismissal as a particularly durable defence strategy. The trial judge addressed:

• Battery (rejected — actual consent given)
• Informed consent (rejected — adequate disclosure + reasonable patient would have consented)
• Five standard-of-care allegations (all rejected on the evidence)
• Causation (rejected in the alternative — insufficient evidence for common-sense inference)

Each ground independently defeats the claim. Appeal would require overturning multiple findings. The defendant has multiple lines of defence against any single argument the plaintiff might press on appeal. The pattern matches:

• Papineau v Romero-Sierra: SOC + causation + threshold “no Lyme disease at all”
• Williamson v Wang: SOC + causation
• Noel v Hawrylyshyn: battery + informed consent + 5 SOC allegations + causation

Multi-ground analysis is a defence strategy worth particular attention. Comprehensive findings on every issue produce trial outcomes that are difficult to overturn on appeal.

Cluster integration

Birth injury cluster (now comprehensive):

• Woods v Hubley (Notable case — Paul as counsel)
• KY v Bahler
• Rathan v Tappenden
• Gilmore v Love (BC)
• Lal v Surrey Memorial Hospital (BC procedural)
• Hanson-Tasker v Ewart (BC appellate)
• Bendah v Joneja (maternal AFE)
• Penate v Martoglio (Ontario appellate ARM)
• A.G. v Rivera (BC preterm)
• Hemmings v Peng (Ontario plaintiff $12M appellate — maternal anaesthetic accident)
• Noel v Hawrylyshyn (Ontario defendant trial — operative vaginal delivery)

Informed consent cluster (now comprehensive):

• Denman v Radovanovic (Ontario appellate, plaintiff win — principal Ontario substantive anchor)
• Gilmore v Love (BC, real-time labour)
• Khaleel v Indar (Alberta, alternatives + modified objective)
• Thorburn v Grimshaw (Nova Scotia, summary judgment)
• A.G. v Rivera (BC, patient refusal doctrine)
• Kotorashvili v Lee (Ontario, mid-treatment plan changes)
• Noel v Hawrylyshyn (Ontario, defence success — operative urgency)

Multi-ground dismissal pattern: Papineau + Williamson + Noel

Reibl v Hughes successful defence applications: Noel + Thorburn v Grimshaw

“Scientific proof not required” framework operating in both directions: Hasan (plaintiff success) + Noel (plaintiff failure)

Doctrinal lessons

The case stands for several propositions.

Battery and informed consent are distinct causes of action. Battery requires absence of consent + contact. Informed consent requires inadequate disclosure + modified objective causation. The elements differ; the analytical frameworks differ; the remedies differ.

Prior preferences are not the same as ongoing refusal. A mother who said throughout the pregnancy that she did not want vacuum or forceps had expressed a clear preference. When the clinical situation made that preference unviable, she could and did give actual consent to the recommended urgent intervention. The trial judge accepted that this was real consent, not coerced or invalid consent.

The Reibl v Hughes modified objective test operates as a defence framework where the reasonable patient would have accepted the recommendation. Where the situation is urgent, the clinical recommendation is sound, and the alternative is no treatment or significantly worse outcomes, a reasonable patient will tend to accept the recommendation. The framework therefore tilts toward defence outcomes in emergent contexts.

Operative urgency narrows the disclosure analysis. The reasonable patient is calibrated to the clinical situation. Comprehensive disclosure that would be required for elective procedures is not required in time-critical emergencies. The modified objective test operates against a backdrop of urgency that tilts toward acceptance of urgent intervention.

Failed instrumental delivery is not evidence of substandard technique. Vacuum and forceps attempts can fail with competent technique. The trial of instrumental delivery framework explicitly permits staged attempts with escalation to caesarean if needed. Outcome alone does not prove breach.

Multi-ground dismissal produces particularly durable defence outcomes. Comprehensive findings on multiple grounds make appeal substantially more difficult. Battery + informed consent + five SOC + causation in Noel would require overturning multiple findings to reverse.

The “scientific proof not required” framework operates symmetrically. Snell v Farrell permits common-sense inferences of causation where the evidence supports them. Where the evidence does not support them — where it is too general, too aggregate, too distant from the specific question — the inference cannot be drawn even under the relaxed framework. The framework is not a free pass for plaintiffs.

Birth injury causation requires specific evidence linking specific events to specific outcomes. General expert observations that neonatal events are “not good for brain development” are insufficient. The plaintiff must produce evidence that the particular neonatal injuries caused the particular later neurodevelopmental outcomes on the balance of probabilities.

Why this case matters

For prospective clients considering birth injury claims. Birth injury litigation is among the most complex and resource-intensive areas of medical malpractice. Noel involved a 17-day trial with multiple experts on each side. The case illustrates the structural challenges:

• Causation between specific neonatal events and specific later neurodevelopmental outcomes must be established with specificity, not generality
• The reasonable patient analysis in emergent obstetric circumstances tends to favour clinical recommendations
• Failed instrumental delivery, low Apgar scores, intracranial hemorrhage, and neonatal seizures together do not automatically establish liability — the causal links must be proven
• Multi-ground defence analysis can produce particularly durable defence outcomes

For more on the realistic evaluation of birth injury claims, see Birth Injury Lawyer in Toronto and Suing for Medical Malpractice in Ontario: What You Need to Know.

For plaintiff counsel. Noel is a substantive defence precedent on several fronts:

• The battery vs informed consent distinction must be addressed carefully in pleadings and at trial
• The Reibl v Hughes modified objective test will operate against plaintiffs in urgent obstetric situations
• Causation in birth injury cases requires expert evidence linking specific neonatal events to specific later outcomes — not just general observations about brain injury
• Multi-ground defence dismissal is durable; plaintiff counsel must address each ground robustly

For defence counsel. The case provides useful precedent on:

• The Reibl v Hughes framework as a defence tool in emergent obstetric situations
• The operative urgency framework that narrows disclosure analysis
• The trial of instrumental delivery framework as accepted SOGC practice
• The “scientific proof not required” framework operating against plaintiff where evidence is insufficient
• Multi-ground dismissal as a strategic outcome

For practising obstetricians. The case affirms the trial of instrumental delivery framework in acute fetal distress. The operational lessons:

• Document the conversation with the patient about the clinical situation and the available options
• Document the patient actual consent (not just absence of objection) when proceeding with operative vaginal delivery
• Recognize when to abandon instrumental attempts and proceed to caesarean
• Document the clinical reasoning at each decision point
• Use SOGC guidelines as the reference framework for instrumental delivery decisions

For more on related obstetric and birth injury jurisprudence, see Hemmings v Peng (Ontario maternal anaesthetic accident — plaintiff appellate affirmance), Williamson v Wang (BC obstetric epidural — defendant), and Denman v Radovanovic (Ontario informed consent — plaintiff).

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Decision Date: August 15, 2024

Jurisdiction: Ontario Superior Court of Justice

Citation: Noel v Hawrylyshyn, 2024 ONSC 4525 (CanLII)

Outcome: Action dismissed on all seven grounds after a 17-day trial. Battery, informed consent, five standard-of-care allegations, and causation all addressed and rejected.

Key authorities: Reibl v Hughes, [1980] 2 SCR 880 (informed consent framework and modified objective causation test); Hopp v Lepp, [1980] 2 SCR 192 (companion case on disclosure); Wilson v Swanson, [1956] SCR 804 (error of judgment doctrine); ter Neuzen v Korn, [1995] 3 SCR 674 (accepted practice and expert evidence); Clements v Clements, 2012 SCC 32 (but-for causation framework); Snell v Farrell, [1990] 2 SCR 311 (robust and pragmatic causation; no scientific proof required)