Case information

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Procedural law – Civil procedure – Motion to dismiss appeal – Civil liability – Proof of fault – Proof of causal connection – Whether Superior Court erred in finding there was no proof of fault or causal connection – Whether Court of Appeal erred in allowing Respondents' motion to dismiss appeal.

In 1978, the Applicant, a physician by training, began having health problems that prevented him from completing his surgical internship. He consulted 82 different doctors between 1978 and 1994. It was not until 1994 that a doctor diagnosed him with Cushing's disease, a rare illness that caused him irreversible damage and led to a total hypophysectomy and the removal of a large pituitary tumour. In 1997, he brought an action against 12 doctors in which he claimed more than $7 million in damages. The action now concerns only the Respondents, Launay and Boulianne, since Dr. Therrien discontinued his action against five doctors and reached an out-of-court settlement with the others.

Dr. Launay, an internist and endocrinologist, saw Dr. Therrien just once, in November 1982, as a medical expert appointed by an insurance company. In his report, he stated that Dr. Therrien had a temporary disability caused by [translation] "[r]eactive depression that is nonetheless chronic, severe and untreated", and he recommended that Dr. Therrien undergo psychiatric treatment. Dr. Therrien consulted Dr. Boulianne, a general practitioner, 42 times between 1982 and 1994 for minor problems. None of the 82 doctors that Dr. Therrien consulted chose to investigate certain symptoms of the disease (including high blood pressure, first diagnosed by Dr. Launay in 1982).

Dr. Therrien accused the Respondents of malpractice the effect of which was to delay the diagnosis of the disease and to prevent him from mitigating the damages. The Superior Court judge found that Dr. Therrien had not proved that the two doctors were at fault and that, even assuming that fault was proved, there was no causal connection between their acts and the damage. The Court of Appeal allowed the Respondents' motion to dismiss the appeal on the ground that the appeal had no chance of success.