• Much of the plaintiff’s oral testimony was found to be unreliable and some of it to be incredible. Lyme disease is caused by bacteria carried by ticks. Although the plaintiff insisted at trial that he had been bitten by a tick, the trial judge was not persuaded that this was true. It was plain from the emergency department records at the Kemptville District Hospital that, a few days after he was bitten, the plaintiff believed he had been bitten by an insect and not a tick. The plaintiff had a rash at the time, but Dr. Brisebois concluded that it was cellulitis and not the distinctive erythema migrans rash peculiar to Lyme disease.
• Although the plaintiff’s action was for failure to diagnose and treat Lyme disease, the plaintiff did not persuade the trial judge that he had Lyme disease. The trial judge found that the plaintiff had never been diagnosed with Lyme disease by a physician who had all relevant information and no misinformation. Following his Lyme disease diagnosis by an American doctor, the plaintiff was offered referrals to Canadian infectious disease specialists who could have confirmed or ruled out Lyme disease. The plaintiff refused all offers of a referral; he said there was no point because he already knew he had Lyme disease.
• At trial, the plaintiff waged an aggressive assault on the defendant Dr. Romero-Sierra’s integrity and reputation. While the trial judge found there were several contradictions in Dr. Romero-Sierra’s testimony and he admitted that his chart was less than perfect, the attacks against Dr. Romero-Sierra were unfounded, unfair and particularly audacious in the context of a case in which the trial judge found the plaintiff’s foundational evidence to be unbelievable.
• At trial, the plaintiff described how Lyme disease had forced him to restrict his recreational, social and sports activities. On cross-examination, the plaintiff agreed that he had failed to mention a post-diagnosis 7,000 km trip by motorcycle from Ottawa to Tuktoyaktuk he embarked upon in August 2019 and had enthusiastically documented on Facebook.

The trial judge relied on a number of recent costs decisions awarding significant costs against physicians in successful claims by patients: Denman v. Radovanovic, 2023 ONSC 3621, aff’d 2024 ONCA 276, in which the successful plaintiffs were awarded $3,000,000 in costs following a 25-day medical negligence trial; Hemmings v. Peng, 2022 ONSC 6482, in which the successful plaintiffs were awarded more than $4,000,000 million in costs following a 42-day medical negligence trial; and Sean Omar Henry v. Dr. Marshall Zaitlen, 2022 ONSC 3050, in which the successful plaintiffs were awarded $800,000 in costs following a 25-day medical negligence trial.

In all the circumstances, the trial judge accepted the demand for costs by the physicians as fair and reasonable.