The Court of Appeal agreed that the trial judge incorrectly relied on the locality rule to lower the standard of care, and found that this error was material to the outcome of the trial because it affected the trial judge’s assessment of the expert evidence, and influenced him to prefer the opinions of the defendant’s expert over those of the plaintiff’s expert. Specifically, the Court of Appeal noted the opinion of the defendant’s expert was not without criticism of the surgery, and testified that there would be different expectations for someone like himself, but for a “community surgeon” such as the defendant, the surgical technique would be “within the realm of acceptability.”8 The Court of Appeal concluded that the trial judge’s reliance on the locality rule in defining the standard of care influenced him to accept the defendant’s expert which was based on the standard of a “community” orthopedic surgeon, as opposed to the opinions of the plaintiff’s experts who spoke simply to the standard of an orthopedic surgeon.
The Court of Appeal held that “considering all of the above… I would conclude that in the particular circumstances of this case, the trial judge erred by not adopting a standard of care close to that of an orthopedic surgeon with a subspeciality in trauma.”9 The court further found that given the standard of care adopted, the trial judge did not deal with any of the experts’ evidence about how they, as subspecialists, would have treated the plaintiff, and had he considered the evidence, the Court of Appeal was not convinced that the outcome would have necessarily been the same. Ultimately, the appeal was allowed, judgement set aside, and a new trial was ordered.
Holding the defendant to a higher standard of care than would be suggested based on their formal training alone is not a new concept. It has been applied by courts across Canada over the years.
