Informed consent claims in Canadian medical malpractice litigation are often framed by patients as “assault” or “battery.” The framing is intuitive — a procedure performed on a patient who did not properly consent feels like an unauthorized touching. But the Supreme Court of Canada drew a sharp line in Reibl v Hughes, [1980] 2 SCR 880: battery is available only where there was no consent at all or where the procedure performed was materially different from the one consented to. Where consent was given but attendant risks were not properly disclosed, the claim is negligence, not battery. The distinction is not academic. It affects the applicable test, the available damages, and the kind of evidence required to prove the case.
Thorburn v Grimshaw, 2024 NSSC 15, is a recent application of the Reibl framework in a summary judgment context. The plaintiff, who was self-represented at the motion stage, framed her informed consent claim as an “assault.” The Supreme Court of Nova Scotia properly recharacterized the claim as negligence and granted summary judgment on the entire action because the plaintiff had failed to mount the expert evidence required to establish either negligence or breach of the standard for disclosure of material risks.
The case is doctrinally significant because it illustrates the Reibl battery/negligence distinction in operation, the materiality requirement for informed consent negligence, and the role of the signed consent form as substantive defence evidence.
The substantive case
In November 2015, Ms. Thorburn consulted Dr. Grimshaw, an OBGYN, about a mass on her right ovary. Dr. Grimshaw advised that surgical removal would be required to determine whether the mass was malignant or benign. The surgery was performed at Victoria General Hospital in Halifax in December 2015. Following the surgery, the plaintiff was returned to the operating room to address internal bleeding.
Ms. Thorburn alleged that the surgery left her with a scar she described as “ugly” and “disfiguring,” and that she had not anticipated that level of cosmetic outcome. She advanced two causes of action: medical negligence and lack of informed consent (the latter pleaded as “assault”).
Dr. Grimshaw moved for summary judgment on three independent grounds: summary judgment on the evidence; delay in bringing the matter to trial; and abuse of process. The court granted the motion on the first ground and did not need to address the other two.
The Reibl framework: battery vs negligence
The framework that governs informed consent claims in Canada was articulated in Reibl v Hughes, [1980] 2 SCR 880, and has been consistently applied ever since.
Battery is available in two circumstances. First, where the patient gave no consent at all to the procedure that was performed. Second, where the patient consented to one procedure but the surgeon performed a substantially different one — for example, where the surgeon performed an unrelated additional procedure during the operation that the patient had not authorized. Outside emergency situations, these are the categories where the “unauthorized touching” framing of battery operates.
Negligence is the framework for everything else. Where the patient gave consent to the procedure performed but alleges that the consent was inadequately informed (because particular risks were not disclosed, or alternative treatments were not explained), the claim is for failure to discharge the duty to obtain informed consent — a negligence claim, not a battery claim. The distinction matters because the elements of the cause of action differ:
- Battery requires proof of the unauthorized touching itself; damages are available even without specific harm flowing from the procedure
- Negligence requires proof of breach of the standard for disclosure, materiality of the undisclosed risk, and causation under the modified objective test from Reibl (would a reasonable patient in the plaintiff’s position have refused the procedure if properly informed?)
In Thorburn, the trial judge applied the Reibl framework to the plaintiff’s pleading. The factual allegations did not support battery — Ms. Thorburn did not allege that she received no consent at all, and she did not allege that Dr. Grimshaw performed a different procedure than the one consented to. Her allegations were that she had not been adequately informed about alternatives, about the involvement of residents, and about the risk of internal bleeding. These are negligence allegations under Reibl. The court therefore considered the informed consent issue in negligence.
The materiality requirement
Informed consent in negligence requires the plaintiff to establish that the undisclosed risks were “material, special, or unusual” risks. This is the disclosure threshold articulated in Reibl and refined in subsequent jurisprudence. Not every risk needs to be disclosed; the duty extends to material risks (those that a reasonable patient in the plaintiff’s position would want to know about) and special or unusual risks (those that are not typical of the procedure but are nonetheless reasonably foreseeable).
The materiality assessment is a question that almost always requires expert evidence. The plaintiff must establish what the practising standard was for disclosure at the relevant time and place, what the recognized material risks of the procedure were, and how the actual disclosure compared to that standard. Without expert evidence, the plaintiff cannot make out the materiality element.
In Thorburn, the plaintiff’s three informed consent allegations were each defeated at the materiality stage:
Failure to inform of alternative treatment options. The plaintiff alleged that Dr. Grimshaw had not informed her of alternatives to surgery. The court held that whether alternative treatment options existed for an ovarian mass requiring removal for biopsy could only be established by expert opinion. The plaintiff had not provided any such evidence despite having more than a year to do so.
Lack of consent for resident participation. The plaintiff alleged that she had not consented to medical residents participating in her surgery. The court held that the plaintiff had not provided expert evidence to support the claim that resident involvement was a material, special, or unusual risk. The signed consent form expressly authorized the attending surgeon “and those whom he/she may designate as associates or assistants.” The form addressed the issue and the plaintiff had not provided evidence that overcame it.
Failure to inform of internal bleeding risk. The plaintiff alleged that she had not been advised that severe internal bleeding was a risk of the procedure. The court held that the signed consent form expressly listed “bleeding” as a “common, foreseeable [risk] or potentially serious [consequence] of the treatment.” Given that the consent form addressed the risk, the plaintiff was required to provide some evidence that nonetheless raised a genuine issue of material fact about the disclosure. She did not do so.
The three allegations together did not survive the summary judgment motion.
The standard of care framework
The medical negligence claim was assessed against the standard of care framework articulated in Anderson v Queen Elizabeth II Sciences Centre, 2012 NSSC 360, which captures the well-established Canadian common-law standard. A medical practitioner must bring reasonable skill, knowledge, and care to the patient’s treatment. The standard is calibrated to the degree of care and skill expected of a normal, prudent practitioner of the same experience and standing. A specialist is held to a higher standard than a general practitioner, in keeping with their additional training.
This framework is consistent with the foundational SCC decisions (Wilson v Swanson, [1956] SCR 804; ter Neuzen v Korn, [1995] 3 SCR 674) and operates the same way in Ontario and other Canadian common-law jurisdictions. For the specialist standard specifically, see Dumesnil v Jacob, which addresses the application of the specialist standard to a non-specialist who performs specialist work.
In Thorburn, the negligence claim failed at the same point that the informed consent claim failed. The plaintiff had not provided expert evidence on standard of care, on breach, or on causation. The court therefore granted summary judgment on the negligence claim as well.
The summary judgment framework
The Nova Scotia summary judgment framework was articulated in Shannex Inc v Dora Construction Ltd, 2016 NSCA 89, which sets out a five-question sequential analysis:
- Does the challenged pleading disclose a genuine issue of material fact?
- If not, does the pleading require the determination of a question of law?
- If the first answer is no and the second is yes, does the pleading have a real chance of success?
- If there is a real chance of success, should the judge exercise discretion to determine the issue of law?
- If summary judgment is dismissed, should the action be converted to an application, and what directions should govern the conduct of the action?
The Ontario analogue is Rule 20 of the Rules of Civil Procedure, governed by the Supreme Court of Canada’s framework in Hryniak v Mauldin, 2014 SCC 7. The Hryniak framework directs courts to take a “robust and meaningful” approach to summary disposition where the case can be fairly resolved without trial. The two frameworks operate similarly in effect: both allow defendants to dispose of unmerited claims without forcing them to trial, and both place a substantial evidentiary burden on the plaintiff to demonstrate genuine issues for trial.
The summary judgment framework in malpractice cases is particularly consequential because malpractice cases are typically defended on a contingency-protected, well-resourced basis (the CMPA and provincial hospital insurance reciprocals). A plaintiff who cannot put forward expert evidence at the summary judgment stage will not survive the motion. This is part of why expert evidence is so central in malpractice cases — see Paul’s article on expert witness qualification and 2023 in Review: Self-Represented Litigants for the broader context.
The signed consent form as substantive defence
A practical observation from Thorburn: the signed consent form was a significant feature of the defence on both the resident-involvement and the bleeding-risk allegations. Where the form properly addresses the issues the plaintiff raises, the form creates a substantive obstacle to the plaintiff’s claim. The plaintiff cannot succeed simply by asserting that the disclosure was inadequate; they must put forward affirmative evidence that overcomes what the form says.
For prospective clients with informed consent concerns, this is an important consideration. Standard surgical consent forms generally:
- Authorize the attending surgeon’s team (including residents and other assistants)
- List common foreseeable risks of the procedure (bleeding, infection, anesthesia complications, scarring)
- Reference the risks of the specific procedure
A consent form that addresses the relevant risks shifts the evidentiary burden. The plaintiff must do more than allege that the disclosure was inadequate. They must explain how it was inadequate despite what the form says, and they generally need expert evidence to do so.
The doctrinal lessons
The case stands for several propositions.
Informed consent is negligence, not battery, in most cases. The Reibl framework draws the line clearly. Where the patient gave consent to the procedure performed, the claim about non-disclosure of risks is a negligence claim. Plaintiffs who frame consent claims as “assault” or “battery” without satisfying the narrow conditions for battery will see the claim recharacterized.
Materiality requires expert evidence. The duty of disclosure extends to material, special, or unusual risks. What counts as material in a particular procedure is a question for expert testimony, not for the plaintiff’s personal view or for the trial judge’s intuition. Without expert evidence on materiality, the informed consent negligence claim fails.
Standard of care also requires expert evidence. The medical negligence claim has the same expert evidence requirement. Self-represented plaintiffs who cannot retain qualified experts cannot meet the burden on summary judgment.
Consent forms are substantive evidence. A properly drafted consent form that addresses the risks the plaintiff raises is not a mere formality. It is admissible evidence of what was disclosed and to what the patient consented. The plaintiff must put forward evidence that overcomes the form, not merely allege that the consent process was inadequate.
Summary judgment is the procedural gatekeeper. Where the plaintiff cannot mount expert evidence on the essential elements of the claim, summary judgment will be granted. This is true in Nova Scotia under Shannex, in Ontario under Hryniak, and in other Canadian common-law jurisdictions under similar frameworks.
The informed consent sub-grouping
Thorburn v Grimshaw is the fourth informed consent case in the rewritten case-comment cluster on this site, providing comprehensive doctrinal coverage:
- Denman v Radovanovic (Ontario): cumulative risks framework; breach found
- Gilmore v Love (BC): real-time informed consent during labour
- Khaleel v Indar (Alberta): disclosure of alternative treatments
- Thorburn v Grimshaw (this case): the failure of an informed consent claim on summary judgment
The cluster now covers the spectrum: cases where informed consent breach was found (Denman), cases where the framework was applied to specific contexts (Gilmore real-time, Khaleel alternatives), and cases where the framework operated against the plaintiff (Thorburn). All four cases apply the foundational Reibl framework with appropriate variations for the procedural and substantive context.
The summary judgment sub-grouping
Thorburn also joins Beazley v Johnston as the second summary judgment case in the cluster:
- Beazley v Johnston (Ontario): summary judgment after expert qualification failure under White Burgess
- Thorburn v Grimshaw (Nova Scotia): summary judgment for absence of expert evidence
The two cases together illustrate the gatekeeping function of the summary judgment procedure in malpractice litigation. Where the plaintiff cannot put forward expert evidence (whether because of qualification failure as in Beazley or because no expert evidence was provided at all as in Thorburn), summary disposition follows.
The cross-province sub-cluster
Thorburn is the first Nova Scotia case in the rewritten cross-province sub-cluster, which now spans six provinces:
- British Columbia (5): Massie v PHSA, Sheoran v IHA, Gilmore v Love, Lal v Anderson, Hanson-Tasker v Ewart
- Alberta (1): Khaleel v Indar
- Manitoba (2): Tripp v Ross, Dumesnil v Jacob
- Newfoundland (1): Quinlan v Eastern Regional (discussed in 2023 in Review SRL)
- New Brunswick (1): Scott v RHA
- Nova Scotia (1): Thorburn v Grimshaw (this case)
Six provinces, eleven cases. The cross-province material now spans every Canadian common-law jurisdiction from coast to coast except Saskatchewan, PEI, and the territories.
Why this case matters
For prospective clients with informed consent concerns. The Reibl v Hughes framework draws a clear line. If you allege that your physician performed a procedure to which you gave consent but did not adequately inform you of the risks or alternatives, the claim is negligence and requires expert evidence on materiality. Framing the claim as “assault” or “battery” does not change the substantive analysis. The fundamental question is whether you have evidence (expert and otherwise) that the disclosure was inadequate measured against the practising standard.
For plaintiff counsel. Thorburn is a reminder that the consent form is admissible substantive evidence on what was disclosed. A claim that the disclosure was inadequate despite a consent form that addresses the relevant risks needs to be supported by affirmative evidence that overcomes the form. Counsel taking on informed consent cases should think carefully about how the form will be addressed in the plaintiff’s evidence.
For defence counsel. The case is useful precedent on the role of the signed consent form in summary judgment. Where the form addresses the risks the plaintiff raises, and the plaintiff has not produced expert evidence overcoming the form, the case can be disposed of without trial.
For self-represented plaintiffs considering an informed consent claim. The framework requires expert evidence on materiality of the undisclosed risks, on standard of care for disclosure, and on what reasonable alternatives existed. Without the expert evidence, the claim does not survive summary judgment. The cost realities of retaining qualified experts mean that most self-represented plaintiffs in informed consent cases do not get past summary judgment. See 2023 in Review: Self-Represented Litigants for the broader pattern.
For more on informed consent specifically, see Paul’s discussion of the framework in the context of Denman v Radovanovic (where breach was found) and Khaleel v Indar (where disclosure of alternatives was at issue). For the broader framework of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: January 15, 2024
Jurisdiction: Supreme Court of Nova Scotia
Citation: Thorburn v Grimshaw, 2024 NSSC 15 (CanLII)
Key authorities: Reibl v Hughes, [1980] 2 SCR 880; Shannex Inc v Dora Construction Ltd, 2016 NSCA 89; Anderson v Queen Elizabeth II Sciences Centre, 2012 NSSC 360; Hryniak v Mauldin, 2014 SCC 7 (Ontario analogue on summary judgment); Wilson v Swanson, [1956] SCR 804 (standard of care)
