The Ontario Court of Appeal found that the trial judge properly instructed the jury on the legal issues and on the fact that the jury and not the judge is the trier of facts.

Trials -- Jury trial -- Functions of judge and jury -- Charge to jury

Patient attended at emergency room and diagnosed and treated as suffering from viral pericarditis -- Emergency room physician ordered lactate test and arterial blood gas test, but did not see results for either test before he left hospital -- Patient died from myocarditis -- Plaintiff's family commenced action against emergency physician and respirologist (defendants), who were found liable for damages in amount of $600,000 -- Costs were awarded in amount of $450,000 -- Defendants appealed on grounds including that trial judge erred in charge to jury on test results issue, in that he improperly commented on state of evidence regarding issue, misstated legal test on standard of care and onus regarding proof of causation and gave unbalanced charge because he failed to articulate defendants' evidence and position on issue -- Appeal dismissed -- Trial judge repeatedly instructed jury that they, not he, were triers of facts and that he would leave it to jury to determine on basis of expert evidence whether emergency room physician's failure to access test results before he left was or was not relevant to patient's diagnosis and standard of care issue -- Trial judge's statements did not deprive defendants of fair presentation of their case on test results issue -- Trial judge's choice of words on instruction to jury on distinction between negligence and error of professional judgment was not misleading -- Trial judge repeatedly instructed jury that patient bore onus of proving breach of standard of care and causation on balance of probabilities -- Trial judge clearly instructed jury on meaning of standard of care as applied to medical practitioner including role of expert evidence in their assessment of whether defendants' conduct met standard of care -- Trial judge placed before jury defendants' theory on all aspects of liability, including test results, factual issues, and defendants' position concerning testimony integral to those issues -- Trial judge adequately directed jury’s attention to issues of fact regarding causation and to material evidence bearing on them. Surujdeo v. Melady (2017), 2017 CarswellOnt 376, 2017 ONCA 41, David Brown J.A., G. Pardu J.A., G.R. Strathy J.A. (Ont. C.A.) [Ontario]