There are cases where the medical evidence supports the defence, the trial judge prefers the defence experts, and the plaintiff loses on the merits. Willick v Willard, 2023 ONCA 792, is one of those cases. The plaintiff family lost at trial and lost again on appeal. The case is doctrinally significant not for the merits but for what the Court of Appeal said about how trial judges should write reasons, particularly in cases involving a death and a grieving family.
The Court affirmed the trial judgment in favour of both defendants. The factual findings on standard of care were available to the trial judge on the evidence and were not disturbed. But the Court added an observation that has resonance beyond this case: that trial reasons exist principally for the losing party, who is entitled to be treated with respect and to understand why the case was decided as it was. The Court found that the trial reasons in Willick had not treated the appellants’ claim “with the dignity it deserved” and that one could understand how the family would, on reading the reasons, conclude that the trial judge had not taken sufficient care to understand the case.
The substantive holding (defence succeeds) and the procedural commentary (reasons must be respectful of the losing party) are equally important features of the case.
The substantive case
The patient was a 51-year-old man who fell at home and was seen by a general surgeon. He was discharged and subsequently saw a family physician, who cleared him to return to work. Two weeks after the original fall, he died from exsanguination caused by the rupture of a subcapsular hematoma of his spleen.
Subcapsular splenic hematoma is a recognized but uncommon clinical scenario. Blunt trauma to the left upper quadrant can produce bleeding between the splenic parenchyma and the splenic capsule. Initially, the capsule contains the bleed. Over hours or days, the capsule can rupture, producing rapid intraperitoneal bleeding that is catastrophic without surgical intervention. The classic clinical teaching is that splenic injuries should be considered for several weeks after blunt trauma. In adults with abdominal trauma, even apparently stable patients can develop delayed rupture.
The plaintiff family alleged that the general surgeon should have suspected splenic injury more strongly, followed up with the patient personally, and instructed him to restrict activities and remain in proximity to a hospital. The family also alleged that the family physician should not have cleared the patient to return to work (particularly in a remote location — the case involved a planned return to Kapuskasing in Northern Ontario) without first obtaining ultrasound results, and should have specifically warned the patient about the risk of delayed splenic rupture.
The defence position was that the standard of care had been met on both fronts. The surgeon’s clinical assessment at the time gave no specific indication of splenic injury. The follow-up advice to see the family doctor was appropriate. The family doctor, in turn, conducted a clinical examination, found no objective evidence of splenic injury, was aware that an ultrasound had been ordered as a precaution, and reasonably concluded that the patient could return to work. Delayed splenic rupture two weeks after trauma is rare.
The trial judge accepted the defence experts on standard of care. Both defendants were found to have met the applicable standard. The case was dismissed.
The appeal
The family appealed to the Court of Appeal for Ontario. The grounds focused on whether the trial judge had erred in the standard-of-care analysis.
The Court applied the established standard of review. Findings of fact (including the trial judge’s preference between competing experts) are reviewed on a palpable and overriding error standard, which is highly deferential. The appellate court does not retry the case. The question is not whether the appellate court would have decided the same way; the question is whether the trial judge’s findings were available on the evidence.
The Court of Appeal found no palpable and overriding error in the trial judge’s analysis. The trial judge had heard the experts on both sides, had assessed their credibility and persuasiveness, and had reached conclusions that were available on the evidence. The appeal on the substantive merits was dismissed.
The note on trial reasons
The doctrinally significant part of the decision is the Court of Appeal’s commentary on the trial judge’s reasons. The Court observed that the trial reasons had not treated the appellants’ claim with the dignity it deserved and that the family could understandably have concluded, on reading the reasons, that the trial judge had not taken sufficient care to understand the case.
The Court made two related points:
The primary audience for trial reasons is the losing party. Trial reasons serve multiple purposes — allowing appellate review, providing public accountability, demonstrating that the judicial process has been engaged. But the primary audience is the party who has lost. The losing party is entitled to know why the decision was reached and why the evidence and arguments they presented were rejected. This is not just a procedural nicety; it goes to the fundamental purpose of the judicial process.
Reasons must treat the claim with appropriate dignity. Even where the losing party’s claim does not succeed, the reasons should engage with it in a way that reflects respect for the parties and the process. A perfunctory or dismissive treatment of a serious claim, particularly one involving the death of a family member, fails this standard regardless of whether the legal conclusion is correct.
These observations build on the broader framework of Canadian jurisprudence on the adequacy of reasons, beginning with R v Sheppard, 2002 SCC 26 (in the criminal context) and extended into civil cases by decisions such as F.H. v McDougall, 2008 SCC 53. The principle is that reasons must permit meaningful appellate review and must explain to the parties why the case was decided as it was. The dignity component in Willick is a further elaboration: in cases involving a death and a grieving family, the reasons should engage with the human as well as the legal dimensions of the claim.
The Court of Appeal did not allow the appeal on this ground. The reasons were sufficient for appellate review and contained findings that were available on the evidence. But the commentary stands as guidance for trial judges in similar cases. Where a malpractice claim involves the death of a family member, the reasons should be written with awareness that the principal audience is a family that has lost someone and is trying to understand why their case has not succeeded.
The doctrinal lessons
The case stands for several propositions.
Trial judges are entitled to prefer one set of experts over another. Standard of care in medical malpractice cases is a question of fact for the trial judge. The trial judge hears the experts, assesses their qualifications and credibility, and reaches a finding that is available on the evidence. Appellate review of these findings is highly deferential.
The palpable and overriding error standard protects trial findings. The Court of Appeal in Willick applied the established standard of review without modification. The trial judge’s preference for the defence experts was supported by the evidence. The Court of Appeal did not retry the case. This is the standard that operates in malpractice appeals generally, and it is one reason why most malpractice appeals fail.
The adequacy of reasons is a distinct ground of appeal. Even where the substantive conclusion is supported by the evidence, the reasons must be adequate to permit appellate review and to inform the parties why the case was decided as it was. Inadequate reasons can be a basis for appellate intervention. In Willick, the reasons were adequate for appellate review, but the Court took the opportunity to remind trial judges about the dignity component.
The dignity component is particularly important in fatal malpractice cases. Where the claim arises from the death of a family member, the reasons should engage with the human dimension of the case. A dismissive treatment of a serious claim is a failure of judicial process, even where the legal conclusion is correct.
The multi-defendant defence is a recurring pattern. Willick illustrates the standard structure in many malpractice cases: one acute-care provider (here, the general surgeon) and one follow-up provider (here, the family physician), with the plaintiff required to prove standard of care breach against each. The defence preserved standard of care on both fronts; the trial judge accepted this on both fronts. The pattern recurs in cases involving sequential care.
The causation and SOC defeat cluster
Willick v Willard adds to the sub-cluster of cases on this site where the plaintiff did not succeed. The cluster now includes:
- Knight v Lawson: a case I tried in which the standard of care was breached but causation was not established (Notable Case)
- Johnson v Lakeridge Health: causation defeat in a stroke discharge case
- Coville Estate v Sellens: ER met the standard of care in a pneumonia death
- Martindale v Bahl: standard of care met, with alternative causation analysis and 40 percent contributory negligence finding
- Beazley v Johnston: summary judgment dismissal after expert qualification ruling
- Willick v Willard (this case): standard of care met by both defendants, with appellate affirmance and a note on trial reasons
The six cases together illustrate the realistic risk distribution in Ontario medical malpractice litigation. Many cases that look strong at intake do not survive the standard-of-care analysis at trial. Many that do survive standard of care do not survive causation. Willick is at the standard-of-care end of the spectrum: the trial judge accepted that both defendants did what the standard required, and the Court of Appeal would not second-guess that finding.
Willick is also the first appellate-level decision in the rewritten case-comment cluster. The doctrinal questions on appellate review of malpractice trial findings, and on the adequacy of reasons in fatal cases, are useful additions to the cluster’s coverage of procedural and evidentiary frameworks.
Why this case matters
For the medical defence bar. The case is a useful illustration of the standard structure for defending sequential-care malpractice cases. Each defendant requires a qualified expert prepared to address the specific standard of care that applies to their role. Where both defendants meet the standard, both succeed.
For the plaintiff bar. The case is a reminder of the standard of review issue on appeal. A trial loss on standard of care is very difficult to reverse on appeal. The palpable and overriding error standard is highly deferential. Where the trial judge has heard the experts and made a finding that is available on the evidence, the appellate court will not retry the case. The strategic implication is that the trial is the case. Investing in appeal prospects in a case where the trial loss turned on competing expert evidence is rarely the right allocation of resources.
The case is also a reminder of the adequacy-of-reasons doctrine. Where a trial judgment is genuinely deficient in explaining the result, an appeal on that ground can be available. The bar is high, and Willick shows that even reasons the Court of Appeal regards as not adequately respectful of the losing party can be sufficient for appellate review. But the doctrine exists and should be considered.
For trial judges and the bench. The Court of Appeal’s commentary on the dignity owed to the losing party is meaningful guidance. Reasons in fatal malpractice cases should engage with the human dimension. A trial judge who has decided that the medicine was not negligent has nonetheless been entrusted with a decision that affects a grieving family. The reasons should reflect that responsibility.
For prospective clients. The case illustrates two realities about malpractice litigation. The first is that even claims involving a death may not succeed where the medical evidence supports the defence. Most malpractice cases turn on competing expert evidence about whether the care met the standard. Where the defence experts are persuasive and the trial judge prefers them, the plaintiff loses on the merits regardless of how sympathetic the underlying facts are. The second reality is that appeals are difficult. The standard of review protects trial findings. A loss at trial is rarely reversed on appeal.
For more on the realistic landscape of malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know. For the threshold question of whether a particular case has the elements of a viable claim, see Can I Sue for Medical Malpractice?.
Decision Date: November 30, 2023
Jurisdiction: Court of Appeal for Ontario
