On April 24, 2024, the Court of Appeal dismissed the medical negligence appeal of a severely brain injured child who was badly assaulted by his mother when he was only 16 days old.

The appellants alleged that the child’s doctors failed in their obligation to report the mother to the Children’s Aid Society, which they argued would have prevented the assault. The trial judge disagreed finding no causative breach of the standard of care. The Court of Appeal affirmed the trial judge’s dismissal of the lawsuit.

Tyson Rogerson (“Tyson”) endured a devastating brain injury on December 18, 2007, at only 16 days old, inflicted by his biological mother, Cassandra Camsell (“Ms. Camsell”), resulting in damages agreed to exceeding $13,000,000.

Prior to the assault, Dr. Savaria, Ms. Camsell’s family physician, had seen them together multiple times, while Dr. Nwebube, a pediatrician, examined them on December 17, 2007, referred by Dr. Savaria due to concerns about Tyson’s weight gain. 

During the trial and subsequent appeal, the issue was whether Dr. Savaria and Dr. Nwebube failed in their duty to Tyson by not reporting concerns to the local Children’s Aid Society (CAS), as mandated by section 72 of the Child and Family Services Act, RSO 1990, c. C.11 (CFSA). Despite Ms. Camsell’s history of mental health issues, neither physician alerted the CAS. The appellants contended that such action would have likely prevented the assault. 

However, the trial judge dismissed most of the appellants’ arguments, ruling that while Dr. Savaria should have provided Dr. Nwebube with a summary of Ms. Camsell’s mental health history, it would not have altered Dr. Nwebube’s care. The judge concluded that neither physician breached the standard of care, and even if they had reported to the CAS, intervention would not have prevented the assault.

Section 72 of the CFSA mandates reporting instances where a child is in need of protection. It delineates various scenarios requiring individuals, including professionals working with children, to report suspicions to the appropriate authorities. These scenarios encompass situations where a child has suffered physical harm or is at risk of harm due to neglect, sexual exploitation, or emotional harm. The section also covers cases where a child necessitates medical treatment, is in a hazardous environment, or has been abandoned.

The Court of Appeal carefully reviewed the trial judge’s decision in response to the appellants’ submissions. The appellants argued that the trial judge erred in various aspects, including misinterpreting the criteria for mandatory reporting, drawing unsupported conclusions on causation, and inadequately considering expert testimony. However, the appellate court found no fault with the trial judge’s decision.

The court established the framework for its review, emphasizing the standard of interference with a trial judge’s decision as cited in Housen v. Nikolaisen, 2002 SCC 33. This standard ensures that appellate courts focus on identifying significant legal or factual errors rather than merely re-arguing the case.

Regarding the interpretation of section 72 of the CFSA, the appellate court examined the trial judge’s understanding of the duty to report suspicions of child endangerment. It referenced the trial judge’s summary of the criteria for mandatory reporting under section 72 and emphasized the low threshold for triggering this duty. The summary is as follows:

Section 72 of the CFSA provides, in relevant part, that if a person has “reasonable grounds to suspect” that “there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child” or “resulting from that person’s failure to adequately care for, provide for, supervise or protect the child” then that person has a duty to forthwith report the suspicion and the grounds for it to the CAS.

Further, the appellate court addressed the trial judge’s consideration of expert evidence, particularly in the context of assessing whether the respondents’ breached their duty of care. The court cited the support for their conclusion from the respondents’ expert, Dr. Thomas Stanton, whose analysis he endorsed. While he did not outright reject the appellants’ expert, Dr. Geoffrey Morris, he pointed out that Dr. Morris’ argument rested on the inaccurate assumption that Dr. Savaria had not evaluated Ms. Camsell’s mental health.

In its assessment of Dr. Nwebube’s conduct, the Court of Appeal pointed to the comprehensive nature of the trial judge’s analysis, ultimately affirming the conclusion that Dr. Nwebube had no child protection concerns on December 17 and thus no obligation to make a CAS report. The Court of Appeal indicated no reasonable suspicion of risk to Tyson, including Tyson’s steady weight gain, observations of his parents’ attentive care, and proactive inquiries about additional assistance at home. 

Additionally, the Court of Appeal upheld the trial judge’s determination regarding Dr. Savaria’s breach of the standard of care, finding it inconsequential in the context of the case. The appellate court accepted the trial judge’s analysis that even if the breach not occured, it would not have significantly altered Dr. Nwebube’s assessment of the situation. 

The appeal was therefore dismissal. 

Decision Date: April 24, 2024

Jurisdiction: Court of Appeal for Ontario

Citation: Rogerson v. Grey Bruce Regional Health Centre, 2024 ONCA 303 (CanLII)