The Second Opinion: Loss of Chance - A Lost Cause in Quebec
In Lévesque v. Hudon, 2013 QCCA 920, the Quebec Court of Appeal has confirmed that the theory of loss of chance or increase of risk does not apply to establish causation under the law of Quebec.
The plaintiff sued a physician for injury resulting from a delayed diagnosis by the physician which prevented treatment on a timely basis. The Superior Court decision held that each day was crucial to the potential benefits of treatment. Accordingly, the first instance judge held that a fault causing a delay of 48 hours in the diagnosis and treatment of the patient created a factual presumption of causation between the fault and injuries suffered. The court stated that timely treatment would have given the patient a 70% chance of full recovery. Further, the fault causing a delay in diagnosis and treatment deprived the patient of 60% of the chance of a full recovery. Accordingly, the Superior Court awarded the patient compensation for 42% of the damages suffered.
The Quebec Court of Appeal reversed the first instance judgment as regards causation on the basis of several manifest errors of fact and law. The Court of Appeal held that the evidence before the Superior Court did not permit a “serious, precise and concordant” presumption as to causation which was described as a question of fact. The Quebec law regarding causation was held to apply uniformly to acts of commission and omission. The Court of Appeal held that the first instance judge erred in focusing on the occurrence of the injury rather than whether, on a balance of probabilities, the fault caused the injury. The evidence did not indicate that treatment within the time framework provided by the defendant would likely have caused the injuries suffered by the plaintiff. Further, the calculation resulting in compensation for 42% of the injury suffered constituted an application of the theory of loss of chance which had been eliminated from the Quebec law of causation by the decision in Laferrière v. Lawson  1 S.C.R. 541. In essence, the Superior Court awarded damages on the basis of a 42% loss of a chance of full recovery. The Court of Appeal held that this finding was incorrect in law and based upon an erroneous presumption of fact as to causation.
The decision in Lévesque indicates clearly that, under the law of Quebec, causation is a matter of establishing on a balance of probabilities the causal link between the fault and the damages suffered. Causation cannot be established merely because the fault has increased the risk of loss or injury, which in its obverse form is a reduction in the chance of avoiding the loss or injury. Further, the decision indicates clearly that the same concept of causation applies to acts of omission, as well as to acts of commission. While the Lévesque decision was decided in the context of a medical liability claim, its analysis of causation and decision that loss of chance is not relevant apply in all cases of civil liability.
The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.
causation loss of chance medical liability presumption of causation