Levasseur v. Canada, 2004 FC 976

Date: 20040712

Docket: T-861-01

Citation: 2004 FC 976

Ottawa, Ontario, July 12, 2004

Present:           The Honourable Madam Justice Mactavish                                    

BETWEEN:

                                                    GASTON PAUL LEVASSEUR

                                                                                                                                               Plaintiff

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                           Defendant

                                    REASONS FOR JUDGMENT AND JUDGMENT

[1]                While incarcerated in Bath Institution, Gaston Paul Levasseur fractured at least two bones in his right foot. He claims that as a result of the negligence of the Correctional Services of Canada (CSC) in failing to provide him with timely and appropriate medical care for his injuries, he has been left with a permanent partial disability.

[2]                The Defendant asserts that the medical care provided to Mr. Levasseur was reasonable in all of the circumstances. In the alternative, invoking the provisions of the Crown Liability and Proceedings Act, R.C. 1985, c. C-50, the Defendant submits that she is not liable for any acts or omissions of physicians retained on contract by CSC.

Introduction

[3]                Mr. Levasseur is a 56 year old man with a Grade 5 education. He worked for many years as a heavy equipment operator until a workplace accident in 1998 resulted in his arm being severed. Mr. Levasseur was unable to continue in his trade, and began collecting Workers' Compensation benefits.

[4]                In 1999, Mr. Levasseur was convicted of aggravated assault, and was sentenced to three and a half years in a federal penitentiary. He was initially sent to Millhaven Institution. However, in November of 1999, he was transferred to Bath Institution, which is a medium security institution adjacent to Millhaven.

[5]                While at Bath, Mr. Levasseur worked in the penitentiary kitchen, where meals are prepared for both Bath and Millhaven Institutions. Mr. Levasseur testified that much of his time in the kitchen was taken up with food preparation, including tasks such as peeling potatoes. However, once or twice a week, food was delivered to the institution, and he would assist in unloading it. Mr. Levasseur explained that the food was delivered on pallets. After each pallet was unloaded, the empty pallet would be leaned up against a wall.

The Accident

[6]                Mr. Levasseur testified that while he was unloading food in the kitchen, an empty pallet, which had been improperly placed against the wall, fell onto his foot. Although he was wearing steel-toed work boots, the pallet landed on the top of his foot, between the steel toe piece and his ankle, causing him significant pain.

[7]                There has been a great deal of confusion in the course of this litigation as to when this accident occurred. Letters written on Mr. Levasseur's behalf to CSC authorities in 2001 indicate that the accident occurred on March 15, 2000. So too does the Statement of Claim. At his examination for discovery in 2002, Mr. Levasseur confirmed that this was when the accident took place. However, at trial, Mr. Levasseur said that having had the opportunity to review the record, he now believes that the accident took place some four months later - in mid-July of 2000. Mr. Levasseur explains his confusion as to the date on the basis that in the penitentiary, one day is pretty much the same as any other, and it is hard to keep track of time.

[8]                Mr. Levasseur testified that he sought medical attention for his injury shortly after it occurred, and it is common ground that Mr. Levasseur first attended at the Bath Institution medical clinic complaining of pain in his foot on August 1, 2000. I am therefore satisfied that the accident occurred in late July of 2000.                

Health Care Services at Bath Institution

[9]                Before reviewing the course of Mr. Levasseur's interaction with Health Services at Bath Institution, it is helpful to have an understanding of how health services are delivered within the institution. In this regard, the Court was assisted by the testimony of Maureen Williams, who is the Acting Chief of Health Services at Bath Institution, and as such is responsible for overseeing the delivery of health care at Bath.

[10]            According to Ms. Williams, the medical clinic at Bath Institution is open each week from Monday to Friday. In 2000, the clinic operated from 8 am to 4 pm. Each weekday, between 8 and 9 in the morning, there was an 'open' nursing clinic. Inmates could come to the clinic without an appointment during this time frame, where they would be seen by a nurse. If the attention of a doctor was required, an appointment would then be scheduled. How quickly that appointment with the doctor would take place would depend on the severity of the health condition in issue, and the availability of the physician.

[11]            Ms. Williams described the services offered within Bath Institution as being akin to those offered by a family physician. In the event that an inmate required the services of a specialist, a referral would be made to an outside consulting physician in the appropriate sub-specialty.

[12]            Emergency care was available to inmates at Bath Institution around the clock. If an inmate was injured during clinic hours, the inmate was seen right away. In the event that medical attention was required outside of clinic hours, the correctional officer in charge of the inmate's unit would contact the regional hospital.    According to Ms. Williams, it would then be the responsibility of the hospital staff to determine whether it was necessary to have the inmate come in to the hospital.

Maintenance of Medical Records

[13]            CSC's policy with respect to the maintenance of health care records is articulated in a 'Commissioner's Directive', which provides that "[e]very significant interaction between an inmate and any member of the health services team shall be noted on the offender's health care record....". These notations are to include "... a summary of the nature of the interaction, the time of the interaction and a description of the action taken by health services staff."

[14]            According to Ms. Williams, this policy is followed carefully, and she is not aware of any difficulties arising from the failure of a member of the health services staff to properly chart his or her dealings with an inmate.

[15]            The one exception to the charting requirement relates to contact between health services staff and inmates in the course of dispensing medications. Medications are distributed to inmates late in the afternoon each day. Offenders are required to line up in a queue in order to receive their medications.    This process is referred to as the 'med line'. In the ordinary course, no specific notation will be made on an inmate's chart with respect to the inmate's attendance at the med line. However, if there is an unusual or significant interaction between the staff member and the inmate during the med line process, this would be recorded on the inmate's chart.

[16]            If an inmate were to report an injury during his attendance at the med line, the inmate would be referred to another nurse in the health centre for assessment. This assessment would then be recorded in the inmate's chart.

[17]            With this understanding of the health care system at Bath Institution, I turn now to Mr. Levasseur's interaction with health services. There are numerous conflicts in the evidence which relate to the quality of the care that Mr. Levasseur received with respect to his foot injury. As a result, it is necessary to review the evidence in this regard in some detail.

Mr. Levasseur's Initial Contacts With Health Services Regarding his Foot

[18]            Mr. Levasseur gave conflicting testimony with respect to his alleged lack of success in his initial efforts to access health care after he injured his foot. However, it is common ground that Mr. Levasseur was seen by a nurse on August 1, 2000, within a few days of the accident. The parties also agree that he did not sustain any damages in the interim. As a result, it is not necessary to resolve the conflicts in Mr. Levasseur's testimony on this point.

[19]            It is also not in dispute that, as a result of the August 1 appointment, arrangements were made for Mr. Levasseur to see Dr. DeJager, the Bath Institution physician, on August 17, 2000. What is in issue is whether Mr. Levasseur told either the nurse, or Dr. DeJager that he had injured his foot, or simply complained of foot pain.

[20]            Mr. Levasseur insists that he told both the nurse and Dr. DeJager about his accident in the kitchen. However, neither the nurse's notes, nor Dr. DeJager's notes make any mention of the kitchen accident, or of Mr. Levasseur having sustained trauma to his foot. While the nurse did not testify at trial, Dr. DeJager stated that if Mr. Levasseur had told him what had happened to his foot, he would have noted it in the chart.

[21]            Dr. DeJager recorded gout, osteoarthritis and injury as possible causes of Mr. Levasseur's foot pain. In addition to an x-ray, Dr. DeJager ordered that blood work be done in order to assist in arriving at a diagnosis. Dr. DeJager testified that had he known that Mr. Levasseur had injured his foot, there would have been no need to have blood work done, as the blood tests were intended to determine the presence of either gout or osteoarthritis.

[22]            In order to resolve this issue, it is necessary to address the reliability of Mr. Levasseur's evidence. In the course of his testimony, it was demonstrated that Mr. Levasseur's recollection of events was seriously flawed in a number of respects. His confusion as to the date of the accident has already been noted. Another example arises out of his evidence with respect to the length of time that he spent in an education program at Bath Institution. Mr. Levasseur testified that he was only enrolled in the program for a week or two, while the documentary record establishes that he spent somewhere in the vicinity of six months in the program. While I am satisfied that Mr. Levasseur was not intentionally trying to mislead the court, these and other similar problems with his testimony lead me to find that he was not a particularly reliable witness. Where his testimony is at odds with the entries on his medical chart, I prefer the contemporaneous record.

[23]            I accept Dr. DeJager's testimony that there would have been no reason to consider either gout or osteoarthritis as potential causes of Mr. Levasseur's foot pain, had the doctor been made aware that Mr. Levasseur had recently suffered trauma to his foot. As a consequence, I find that Mr. Levasseur did not disclose that he had suffered an injury to his foot in August of 2000.

The Initial Diagnosis

[24]            On September 6, 2000, Mr. Levasseur's foot was x-rayed at Millhaven Institution. The report prepared by Dr. Stanley Jarzylo, the radiologist at Millhaven, reveals a fracture to the fourth metatarsal of Mr. Levasseur's right foot. The report observes that "... [t]here is some peripheral calcified callus here, so that the injury is not recent". Callus is bone that forms around a fracture site as part of the healing process.

[25]            In his testimony at trial, Dr. Jarzylo estimated that the injury to Mr. Levasseur's foot was four to six weeks old, and appeared to be healing well.

[26]            Dr. DeJager testified that from his review of Dr. Jarzylo's report, he had been satisfied that the fracture was well-positioned, and was healing well. His view was that there was no need to do anything further at the time, other than to treat Mr. Levasseur symptomatically. Mr. Levasseur was told to continue taking the anti-inflammatories that had already been prescribed for another condition. In addition, he was told to wear hard-soled footwear to protect his foot. While Mr. Levasseur could continue walking on the foot, he was expected to limit his walking to "the necessary activities of daily living", such as going to the dining area for his meals. In cross-examination, Dr. DeJager modified his testimony slightly, to say that Mr. Levasseur was expected to "weight bear, as tolerated". Dr. DeJager did not give Mr. Levasseur painkillers, a cane or crutches, as any of these would have encouraged him to walk on the foot more than he should.

[27]            Dr. DeJager testified that he ordered that a follow-up appointment be scheduled for Mr. Levasseur to see him again in three months. The purpose of this appointment would have been to determine whether the foot had fully healed, or whether more intensive treatment was required.

[28]            I do not accept Dr. DeJager's evidence that he ordered a follow-up appointment for a number of reasons. The quality of the care provided by Dr. DeJager is under scrutiny in this proceeding, and as a result, he has an interest in the outcome of the trial. Further, I was not impressed with Dr. DeJager as a witness. At times he was somewhat flippant in his answers, and, at other times, was somewhat combative or argumentative in his responses to questions from counsel for Mr. Levasseur. In addition, given the passage of time, the number of patients that Dr. DeJager would have seen at Bath Institution in the interim, and the fact that there was nothing remarkable about his treatment of Mr. Levasseur at the time, I am not persuaded that Dr. DeJager has any real independent recollection of his dealings with Mr. Levasseur in relation to his foot injury. As a result, I do not place any reliance on what Dr. DeJager claims that he did in relation to his treatment of Mr. Levasseur, unless that evidence is corroborated by entries in Mr. Levasseur's medical chart. There is no record on Mr. Levasseur's chart of any order having been given to follow-up in three months, and I find that no such order was ever given.

[29]            That said, Mr. Levasseur agrees that Dr. DeJager may well have told him to come back to see him if the pain in his foot got worse.

September to December, 2000

[30]            Mr. Levasseur testified that between early September and late December of 2000, he tried to stay off of his foot as much as possible, but that nevertheless, it continued to hurt him a great deal. He kept working, but tried to sit down at work when he could. Mr. Levasseur explained that by continuing to work in the kitchen, he was actually able to reduce the amount of walking that he had to do, as being in the kitchen meant that he did not have to walk back and forth between his sleeping quarters and the dining area three times a day to get his meals.

[31]            According to Mr. Levasseur, he was in constant pain during this time. He claims that he told the nursing staff many times that his foot was continuing to cause him severe pain, and that the nursing staff refused to let him see a doctor. He also claims that he complained to Dr. DeJager, who reportedly stated that he knew about Mr. Levasseur's foot, and refused to write anything down about it on Mr. Levasseur's chart.

[32]            Mr. Levasseur's medical chart reveals that between early September and late December of 2000, he saw the nursing staff on seven occasions in relation to a variety of ailments. There is no reference in the chart to any mention having been made by Mr. Levasseur with respect to his foot injury. Further, there is no record of him even having seen Dr. DeJager during this period. As a consequence, I find that Mr. Levasseur did not complain about ongoing pain in his foot before December 27, 2000.

Mr. Levasseur's Medical Treatment After December 27, 2000

[33]            On December 27, Mr. Levasseur is reported to have told a nurse that he was finding that the anti-inflammatory that he was taking was not effective. He asked if he could take Motrin instead, which request was granted. Although the chart entry does not make explicit reference to his foot injury, it is likely that the discussion relating to the lack of effectiveness of the anti-inflammatory related to Mr. Levasseur's foot, as the next entry, on January 2, 2001 states that Mr. Levasseur was again complaining of pain in his right foot. Mr. Levasseur was told to soak his foot and apply a topical rub to relieve the pain, and an appointment with Dr. DeJager was scheduled for the following week.

[34]            At trial, Mr. Levasseur testified that he had been in constant pain from the time of his accident until he saw Dr. DeJager on January 9, 2001. However, at his examination for discovery, Mr. Levasseur stated that the pain got worse a few months after the accident, whereupon he went to see the doctor again. Mr. Levasseur's memory of these events was undoubtedly fresher at his discovery in 2002 than it was at trial. As a result, given that the first mention of problems with his foot was on December 27, I find that Mr. Levasseur's level of pain in his foot increased suddenly in mid- to late December.

[35]            On January 9, Mr. Levasseur saw again Dr. DeJager. It is common ground that once again, Dr. DeJager again told Mr. Levasseur that he should be wearing hard-soled shoes in order to protect his foot. Mr. Levasseur claims that he tried to get a pair of hard-soled shoes, but was told that he did not qualify. I do not accept Mr. Levasseur's testimony in this regard. Ms. Williams pointed out that anyone working in the kitchen would have to wear hard-soled work boots. Indeed, Mr. Levasseur himself testified that he was wearing steel-toed work boots when the pallet fell on his foot. I am therefore satisfied that Mr. Levasseur did have hard-soled shoes available to him, had he chosen to wear them.

[36]            Dr. DeJager testified that Mr. Levasseur wanted to continue working in the kitchen, and that, as a result, he wrote a note to the kitchen staff on Mr. Levasseur's behalf, asking that he be permitted to sit down on the job.

[37]            Dr. DeJager also ordered that the foot be re-x-rayed. Dr. Jarzylo reviewed the new x-ray films, and his January 26, 2001 report noted the deposition of additional calcified callus at the fourth metatarsal. However, there was a thin line through the fracture site, indicating a re-injury. In addition, there was a new injury to the second metatarsal, which Dr. Jarzylo stated was compatible with a stress fracture.

[38]            Dr. DeJager testified that he was very surprised that Mr. Levasseur had developed a stress fracture. According to Dr. DeJager, this was most unusual, and meant that Mr. Levasseur had been walking on his injured foot too much. Dr. DeJager decided to refer Mr. Levasseur to Dr. Mark Harrison, an orthopaedic surgeon working at the Hotel Dieu hospital in Kingston. An appointment was originally scheduled for Mr. Levasseur to see Dr. Harrison on April 20. However, this appointment was subsequently rescheduled by the hospital to May 25, 2001.

[39]            In addition to ordering that the foot be re-x-rayed in one month's time, Dr. DeJager also left instructions for Mr. Levasseur's care until he could see Dr. Harrison. These instructions were conveyed to Mr. Levasseur by Maureen Williams, who was then working as a nurse. Ms. Williams' notes of her January 30 meeting with Mr. Levasseur confirm that he was told to be less hard on his foot. Ms. Williams observed that Mr. Levasseur was wearing high-topped running shoes at the time, and he was again advised of the need to wear hard-soled shoes. Mr. Levasseur was also provided with a tensor bandage to immobilize the foot, and was instructed as to its use. Mr. Levasseur denies ever receiving a tensor bandage, but I prefer the contemporaneous documentary evidence in this regard, and find that a tensor bandage was provided.

[40]            An appointment was scheduled for Mr. Levasseur to meet with Dr. DeJager on February 6 and again on February 27, in order to discuss the results of the January x-ray. Mr. Levasseur failed to show up for either appointment.

[41]            In the meantime, on February 23, 2001, the foot was x-rayed again. The parties agree that this x-ray showed that both fractures were healing well.

[42]            Mr. Levasseur next met with Dr. DeJager on March 19, at which time Dr. DeJager told Mr. Levasseur that he should stay off of his foot, and keep it elevated. Despite these instructions, Mr. Levasseur continued to work in the kitchen. While he suggested that working in the kitchen reduced the distance that he would have to walk for his meals, Mr. Levasseur also had to concede that working in the kitchen provided him with the money to buy cigarettes to support his pack-and-a-half a day habit.

[43]            Dr. DeJager also suggested that Mr. Levasseur arrange to have someone bring him his meals. However, it is not clear from the evidence whether any attempt was ever made to have this happen, nor is it clear whether it was up to Dr. DeJager or Mr. Levasseur to make the necessary arrangements. We do know that Mr. Levasseur continued to take his meals in the penitentiary dining room.

[44]            According to Dr. DeJager, his instructions to Mr. Levasseur were intended to ensure that all conservative treatment options were exhausted prior to Mr. Levasseur meeting with the orthopaedic surgeon.

[45]            Dr. DeJager had the foot re-x-rayed in late April. This x-ray revealed considerable further healing of the fourth metatarsal. However, the second metatarsal had not healed. According to Dr. Jarzylo, the healing process was either static or was actually regressing. Dr. Jarzylo's report noted that this was "likely delayed union from movement".

[46]            After reviewing the results of this x-ray, Dr. DeJager met with Mr. Levasseur in early May, whereupon he reiterated the same instructions that he had previously provided with respect to the importance of resting and protecting the foot.

The Consultation with Doctor Harrison

[47]            Mr. Levasseur saw Dr. Harrison on May 25, 2001. Dr. Harrison is an orthopaedic surgeon, who specializes in foot and ankle surgery and joint replacements. He works at the Hotel Dieu and Kingston hospitals in Kingston, Ontario, and has no employment or other form of contractual relationship with CSC.

[48]            Mr. Levasseur acknowledges that he told Dr. Harrison that the injury to his foot had occurred some two years earlier. From his examination of Mr. Levasseur and a review of the x-rays from January and April of 2001, as well as a further x-ray done that day, Dr. Harrison determined that Mr. Levasseur's fourth metatarsal had healed, but that he had developed a non-union of the second metatarsal.

[49]            "Non-union" is a clinical term, and although the doctors differed slightly as to its meaning, in essence, it means that the fracture was not well healed 12 to 18 months after the injury. A 'non-union' must be contrasted with a 'delayed union', which describes situations where a fracture shows evidence of healing, but does not heal within the expected time frame. In the case of a fracture to a metatarsal, healing would ordinarily be expected to have occurred within six to 12 weeks.

[50]            Based in part on his understanding that the injury was two years old, Dr. Harrison recommended that Mr. Levasseur undergo surgery to his foot. He proposed to graft new bone into the fracture site, and secure the metatarsal with a metal plate. The foot would then be immobilized in a cast.

[51]            This would be characterized as elective surgery. Dr. Harrison testified that the average waiting time for non-urgent or elective surgery was approximately 18 months.

[52]            Had Dr. Harrison known that the injury to the second metatarsal was less than eight months old, his evidence was that his diagnosis would have changed from a non-union to a delayed union. As to whether this additional information would have changed his recommended course of treatment, Dr. Harrisonstated "[i]t might. Not necessarily, but it might." He did not, however, indicate what alternate form of treatment might have been appropriate in the circumstances.

[53]            Once the decision had been made to operate, Mr. Levasseur was referred for a pre-operative assessment. In cases of patients over forty, such an assessment is required in order to ensure that the patient does not have any significant respiratory or cardiac problems, and will be able to withstand surgery.

[54]            Two appointments for this assessment were scheduled for the summer of 2002, both of which were subsequently cancelled by the hospital. Mr. Levasseur was ultimately scheduled to go for his pre-operative assessment on July 29, 2002, although he was not advised of the date of his appointment. CSC policy requires that inmates not be provided with advance notice of medical appointments until the day of the appointment. This is done for security reasons.

[55]               Mr. Levasseur was released from prison a few days before the appointment was to have taken place. He was never told about the date for the appointment, and the appointment was evidently cancelled by the Correctional Service of Canada.

Contact with CSC Health Services Between the Spring of 2001 and July of 2002

[56]            While Mr. Levasseur was still in Bath Institution, waiting for his pre-operative assessment, he continued to see Dr. DeJager and the health services staff from time to time with respect to his foot.

[57]            In June of 2001, Mr. Levasseur complained of pain in his foot, at which time health services provided him with a cane. The following month, Dr. DeJager again advised Mr. Levasseur that he had to rest the foot. Mr. Levasseur acknowledges that he was continuing to walk on the foot, other than just to get his meals, although he did say that he tried to limit the extent to which he walked on it.

[58]            In February of 2002, Mr. Levasseur saw Dr. DeJager with respect to foot pain. Dr. DeJager prescribed Tylenol with codeine for pain control. Dr. DeJager explained that at this point, it was clear that nothing was going to change with Mr. Levasseur's foot, whether he walked on it or not, and that surgery was required. As a result, it was now therefore appropriate to try to control Mr. Levasseur's pain. In May of 2002, after complaints from Mr. Levasseur that the Tylenol with codeine was not working, Dr. DeJager changed the medication to Tylenol #2. As previously noted, Mr. Levasseur was released from Bath Institution to a halfway house in July of 2002.

Post-Release Medical Treatment

[59]            Shortly after his release from Bath Institution, Mr. Levasseur consulted with Dr. Chiu, his family doctor in Hamilton, with respect to his foot injury. Dr. Chiu referred Mr. Levasseur to Dr. Louis Saunders, who is an orthopaedic surgeon specializing in hand and foot surgery.

[60]            In September of 2002, before he was able to see Dr. Saunders, Mr. Levasseur suffered a mild heart attack. Mr. Levasseur saw Dr. Saunders in November of 2002. Mr. Levasseur complained of daily discomfort in his right foot, which pain appeared to be localized at the fourth metatarsal. After examining Mr. Levasseur, and after reviewing x-rays taken by Dr. Chiu in July of 2002, Dr. Saunders determined that Mr. Levasseur's fourth metatarsal had healed, but that there was a possible non-union of the second, and possibly the third metatarsal.

[61]            This is the first indication that there may have been an injury to the third metatarsal. There is very little other evidence before me with respect to this issue, and both parties indicated that they were not asking me to make any findings in relation to this injury. As a result, I do not intend to say anything further about it.

[62]            Dr. Saunders next arranged for Mr. Levasseur to undergo a tomogram. A tomogram is a kind of CT scan. The radiologist's report with respect to the tomogram indicated that there was a healed fracture to the fourth metatarsal, and a healing fracture to the second metatarsal. Dr. Saunders testified that after he reviewed the films himself, he was of the view that there was enough healing of the fracture to the second metatarsal that surgery was no longer required.

[63]            As a result, Dr. Saunders told Mr. Levasseur to continue with the type of non-surgical or conservative management of the foot that Dr. DeJager had recommended. Mr. Levasseur agreed with this course of action. In Dr. Saunders' view, it was still possible that there would be additional healing of the foot.

[64]            Ten months later, Dr. Saunders saw Mr. Levasseur again, this time at the request of Mr. Levasseur's counsel. Dr. Saunders conducted a bone scan, which showed that the second metatarsal was not yet solidly united, but that healing was still going on. Dr. Saunders said that it was very rare to find such a situation approximately three years after the injury.

[65]            Dr. Saunders then conducted a CT scan. The radiologist reported that the fracture line was no longer visible in the second metatarsal, and that healing callus was clearly visible. Dr. Saunders' view was that the fracture line in the second metatarsal was not completely filled in, although there was indeed bone across the fracture site.

[66]            Given that Mr. Levasseur had recently had a heart attack, Dr. Saunders felt that surgical repair was not appropriate, as surgery is associated with its own range of potential complications. Further, given that the foot still appeared to be healing, Dr. Saunders' view was that it was better to leave the foot alone.

[67]            While he does not appear to rule out the possibility that the foot may still heal completely, Dr. Saunders testified that he could not see it getting better in the foreseeable future. In his view, Mr. Levasseur has been left with a permanent partial impairment to his right foot.

[68]            Mr. Levasseur himself complains of ongoing pain in his foot, which he says, limits his ability to walk any great distance.

The Law

[69]            In order to succeed in an action in negligence, a plaintiff must establish that the defendant owes him a duty of care, that there has been a breach of that duty, and that damages flow from that breach. That is, a causal link must be established between the acts or omissions of the defendant and the alleged injury: see A.M. Linden & L.N. Klar, Canadian Tort Law, 11^th Ed. (Toronto: Butterworths Canada Ltd., 1999).    

[70]            The defendant concedes that a duty to provide reasonable health care is imposed on it by virtue of section 86 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which provides that:

[71]            The content of this duty was discussed by Madam Justice Layden-Stevenson in Bastarache v. Canada, 2003 FC 1463, where she stated that:

The prison authorities owe a duty to take reasonable care for the health and safety of the inmate while in custody: Timm, supra; Abbott v. Canada (1993), 64 F.T.R. 81 (T.D.); Oswald v. Canada (1997) 126 F.T.R. 281 (T.D.). In addressing the duty of care, regard must be had to the circumstances surrounding the incident: Scott v. Canada, [1985] F.C.J. No. 35 (T.D.). An important consideration in the foreseeability of risk is the likelihood of the occurrence of the event giving rise to the risk. The issue is not whether there is a duty of care, but whether the acts or omissions of the defendant fall below the standard of conduct of a reasonable person of ordinary prudence in the circumstances: Russell v. Canada 2000 BCSC 650, [2000] B.C.J. No. 848 ; Hodgin v. Canada (Solicitor General) (1998), 201 N.B.R. (2d) 279 (Q.B.T.D.), aff'd., [1999] N.B.J. No. 416 (C.A.). [at para. 23]

[72]            At issue in this case is whether the defendant breached the duty that it owed to Mr. Levasseur to provide him with reasonable health care. Further, there is a question as to whether Mr. Levasseur has demonstrated a causal link between the alleged breach of this duty and the damages which he says he has suffered.

[73]            In order to establish such a causal link in an action arising out of an alleged delay in medical treatment, a plaintiff must establish on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. If, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the claim must fail: Cottrelle etal. v. Gerrard, 67 O.R. (3d) 737 (Ont. C.A.).

[74]            It is not enough for a plaintiff to demonstrate that adequate diagnosis and treatment would have afforded him a chance of avoiding the unfavourable outcome, unless that chance surpasses the threshold of "more likely than not": Cottrelle, supra.

A Word About the Medical Witnesses

[75]            Before analysing the outstanding issues, there is a matter relating to the status of the medical witnesses that bears comment. Four physicians testified at the trial of this matter: Dr. Saunders testified on behalf of Mr. Levasseur, and Drs. DeJager, Harrison and Jarzylo were called by the defendant. All four were treating physicians, and none were qualified as an expert witness at trial.

[76]            Nevertheless, in the course of the doctors' testimony, each offered opinions on a range of issues relating to the diagnosis and treatment of fractured metatarsals, and no objection was taken by either counsel with respect to these questions. When I raised this issue with counsel, counsel for Mr. Levasseur indicated that it had been his intention to have Dr. Saunders testify as an expert witness, and it appears that there may have been some discussions to this effect between counsel in advance of the trial. However, no request was presented to the Court to have Dr. Saunders qualified as an expert at the commencement of his testimony. The usual examination on qualifications was not carried out, nor did the defendant consent to Dr. Saunders being qualified as an expert. Further, while a copy of a report prepared by Dr. Saunders was provided to counsel for the defendant in advance of the trial, counsel for Mr. Levasseur did not comply with the provisions of Rule 279 (b), as the report was not signed by Dr. Saunders, nor was it accompanied by a solicitor's certificate.

[77]            In these circumstances, I am not prepared to treat Dr. Saunders' testimony as that of an expert witness. Counsel agreed, however, that they were content to have me consider the opinions offered by each of the medical witnesses, and to attribute such weight to those opinions as I deem appropriate, and I have done so here.

[78]            In the final analysis, the fact that Dr. Saunders was not formally qualified as an expert in the field of orthopaedics, with a specialty in the treatment of hands and feet, has not had any effect on my findings in this case.

[79]            There is one further matter with respect to Dr. Saunders' evidence that should be noted. While Dr. Saunders' report suggested that there may have been shortcomings in the treatment afforded by CSC to Mr. Levasseur, this opinion appears to have been largely premised on the assumption that Mr. Levasseur was not provided with any medical attention for the injury to his foot for a number of months. This assumption is understandable, as it arises out of Mr. Levasseur's original claim that he injured his foot in March of 2000, and was unable to obtain any medical treatment for his injury until August of that year. When the timing of Mr. Levasseur's injury was clarified in cross-examination, Dr. Saunders agreed that the timeliness of the treatment afforded to Mr. Levasseur fell within the range of what is reasonable.

Analysis

[80]            It took a month from the time that Mr. Levasseur first complained of pain in his foot to get the foot x-rayed.    However, given my finding that Mr. Levasseur did not disclose the traumatic origin of his foot pain, I am satisfied that this time frame was reasonable in the circumstances. Dr. Saunders himself agreed that it was not unreasonable to take several weeks to obtain an x-ray for a patient complaining of non-specific foot pain.

[81]            Further, there is no indication that Mr. Levasseur suffered any damages as a result of any delay that there may have been in seeing a doctor or obtaining an x-ray. Indeed, counsel acknowledged in argument that the focus of his case was on the quality of the care provided to Mr. Levasseur after the fracture to the fourth metatarsal was diagnosed in early September of 2000.

The Treatment Provided Between September of 2000 and January of 2001

[82]            The evidence of the doctors establishes that there are a range of treatment options for fractures of the sort initially suffered by Mr. Levasseur. The preferred first line treatment is to have the patient walk on the foot, "weight bearing, as tolerated", without using crutches. In the event that this treatment does not work, a second tier of treatment options could involve the use of a cane or crutches, or the immobilization of the foot by means of a cast. Surgery is the treatment option of last resort, to be used only if the other methods have not proved successful.

[83]            In this case, counsel says, there were such delays in the treatment provided to Mr. Levasseur that he was never able to access second or third tier treatment options after walking on the foot did not result in the healing of the original fracture in the fourth metatarsal. Indeed, not only was the symptomatic treatment method unsuccessful in this case, it actually led to the development of the stress fracture in the second metatarsal.

[84]            Both Dr. DeJager and Dr. Saunders agree that professionally accepted standards for the treatment of a fracture to the fourth metatarsal would include timely follow-up in order to monitor the progress of the patient's recovery. Dr. Saunders testified that he would arrange to see the patient again in three weeks, and then again in six weeks, whereas Dr. DeJager claimed that he would see the patient again in three months.

[85]            While Dr. DeJager claimed that he gave an order to arrange a follow-up appointment with Mr. Levasseur, I have found that no such order was ever given, and that no attempt was made by Dr. DeJager to follow up with Mr. Levasseur after the initial fracture was diagnosed. To this extent, I am satisfied that the health care provided to Mr. Levasseur at Bath Institution fell below professionally accepted standards.

[86]            However, the evidence indicates that as of September 6, 2000, the fracture to Mr. Levasseur's fourth metatarsal was healing nicely. Both Dr. Saunders and Dr. DeJager agree that at that point, the appropriate course of treatment was to leave the foot uncasted, and to have Mr. Levasseur walk on it - "weight bearing, as tolerated".

[87]            I have found that the sharp increase in Mr. Levasseur's pain level occurred in mid- to late December. I am satisfied, on a balance of probabilities, that the stress fracture occurred at this point. This determination as to the timing of the second injury is consistent with the findings of the January 24, 2001 x-ray, which disclosed a healing fracture to the second metatarsal.

[88]            The question, then, is whether the stress fracture to the second metatarsal could or should have been avoided. That is, were there acts or omissions on the part of Dr. DeJager, or anyone else at Bath Institution, that led to Mr. Levasseur developing the stress fracture in his foot?

[89]            There is some disagreement between the doctors as to the cause of the stress fracture. All agree that one possible cause was that Mr. Levasseur had adjusted the bio-mechanics of his gait to compensate for the injury to the fourth metatarsal, putting extra stress on the second metatarsal. Dr. Saunders also said that another possible explanation for the fracture could have been a second blunt force trauma to his foot. However, Mr. Levasseur denies sustaining a second such trauma.

[90]            Dr. Saunders also testified that stress fractures of this nature are very rare, and that better than 99.9% of fractured metatarsals heal by being treated with the "weight bearing as tolerated" approach. Dr. Saunders explained that stress fractures are most often seen in osteoporotic women. This being the case, I cannot find that it was reasonably foreseeable that Mr. Levasseur would develop a stress fracture from walking on his injured foot. My conclusion in this regard is supported by the evidence of Dr. Saunders - Mr. Levasseur's own witness - who testified that he did not see how the stress fracture could have been prevented, as he would have had Mr. Levasseur walking on the foot.

[91]            As a result, Mr. Levasseur has not established that it is more likely than not that if Dr. DeJager had followed up on his injury in a timely fashion, the stress fracture would have been avoided. As a result, I cannot find for Mr. Levasseur in relation to the health care provided to him in the period between September of 2000 and January of 2001.

[92]            Mr. Levasseur's permanent partial disabilityarises out of the failure of the stress fracture in the second metatarsal to heal. The next issue, then, is whether any acts or omissions on the part of anyone at Bath Institution led to the failure of this fracture to heal.

The Treatment of the Stress Fracture

[93]            Counsel for Mr. Levasseur submits that the defendant was negligent in relation to the treatment provided to him with respect tothe stress fracture, in that there was a failure to recognize and treat an injury that required more than the "weight bear as tolerated" approach. I do not accept this submission.

[94]            When Mr. Levasseur complained of increased pain in his foot in January of 2001, Dr. DeJager ordered a new x-ray, which revealed the presence of the stress fracture. At this point, Dr. DeJager referred Mr. Levasseur to an orthopaedic specialist. This was an entirely reasonable course of action.

[95]            It did take four months for Mr. Levasseur to see Dr. Harrison. However, this appears to have been a result of the delays that are an unfortunate reality in the Canadian health care system. Further, Dr. Harrison practised outside of the correctional system, and any delay in this regard was beyond the control of the defendant.

[96]            While Mr. Levasseur was waiting to see Dr. Harrison, Dr. DeJager continued to treat his injured foot. At the time that the stress fracture was diagnosed, it appeared that it was already healing. There is nothing before me that would lead me to the conclusion that Dr. DeJager's initial, conservative, treatment approach was not appropriate. Indeed, when the foot was

re-x-rayed in late February, it appeared that the healing process was ongoing as it related to the second metatarsal, and that the fourth metatarsal was healing well.

[97]            Things started to go off the rails by late April of 2001, when a subsequent x-ray showed regression in the healing process in relation to the second metatarsal. Mr. Levasseur submits that this occurred because he was forced to continue walking on the foot, and that he should have been provided with crutches, a cane or a cast. I do not accept this submission. It is clear from the evidence that Mr. Levasseur was not following the instructions that he was receiving from the health care providers at Bath Institution with respect to the care of his foot. Despite being repeatedly advised to wear hard-soled shoes, Mr. Levasseur was not doing so. He claims that he did not have access to this type of footwear, but I have already found that he did.

[98]            It also appears that Mr. Levasseur did not wear a tensor bandage to immobilize his injured foot. Although he denied ever receiving a tensor bandage, I have found that he was indeed provided with a bandage and was also given instructions as to its use.

[99]            Further, it is noteworthy that when Dr. Harrisonsaw Mr. Levasseur on May 25, 2001, just one month after the April x-ray was taken, he did not recommend that Mr. Levasseur be provided with crutches, a cane or a cast. His view was that surgery was required.

[100]        There are a number of other factors, apart from excessive mobility, that could have led to the failure of the stress fracture to heal. All of the doctors agree that smoking can significantly inhibit healing in bones. Mr. Levasseur was a heavy smoker. Dr. DeJager noted that obesity can also delay healing, and it appears that Mr. Levasseur was significantly overweight while he was in Bath Institution. At least one doctor also felt that the age of the patient may play a role in the ability of the body to heal, and Mr. Levasseur was not a young man.

[101]        As a result, Mr. Levasseur has failed to establish, on a balance of probabilities, that the failure of his second metatarsal to heal Is attributable to any failure on the part of the defendant to provide him with reasonable medical care. Nor has Mr. Levasseur established that the unfavourable outcome that he suffered with respect to his stress fracture would have been avoided with different treatment on the part of the defendant.

The Surgical Option

[102]        The final issue, then, arises out of the proposed surgery on Mr. Levasseur's foot.

[103]        I have already found that the decision of Dr. DeJager to refer Mr. Levasseur to Dr. Harrison for an orthopaedic opinion was reasonable in the circumstances. Dr. Harrison was a qualified orthopaedic surgeon who practised in the non-correctional community. He had no employment or other relationship with CSC, and it is not alleged that the defendant is responsible for any acts or omissions on the part of Dr. Harrison.

[104]        I am further satisfied that Dr. Harrison provided reasonable care to Mr. Levasseur in the circumstances. While there was some disagreement between Dr. Saunders and Dr. Harrison as to whether surgery was the best way of treating Mr. Levasseur's foot, it is clear from the evidence of Dr. Saunders that this was something of a judgment call, that there was a range of possible treatment options, and that reasonable orthopaedic surgeons could differ on this point. Indeed, counsel for Mr. Levasseur did not suggest that there was any negligence on the part of Dr. Harrison. However, counsel contends that the defendant is liable for cancelling Mr. Levasseur's appointment for his pre-operative assessment following his release from Bath Institution.

[105]        It is indeed unfortunate that there were significant delays associated with the scheduling of Mr. Levasseur's surgery, but once again, these appear to have been due to the shortcomings of the provincial health care system, and not the fault of the defendant. However, the decision to cancel Mr. Levasseur's pre-operative assessment upon his release from Bath Institution was entirely within the control of CSC. I was not provided with any evidence as to why this was done, although it was suggested in argument that it may have been CSC policy to do so.

[106]        Given the length of time that patients have to wait in order to access certain types of medical treatment, I am concerned that inmates who have already waited a long time for a particular procedure may be required to go back to the bottom of the waiting list, once they are released from prison.

[107]        That said, the fact that Mr. Levasseur had a heart attack very soon after his release from Bath Institution means that he may well have been unable to have surgery in any event. Further, Dr. Saunders' view is that the injury was better treated without surgery. As a consequence, Mr. Levasseur has not established that he suffered any damages as a result of the actions of CSC in cancelling his appointment.

[108]        For these reasons, Mr. Levasseur's action is dismissed.

The Liability of the Crown for the Actions of Dr. De Jager

[109]     Given my finding that Mr. Levasseur has failed to establish negligence on the part of Dr. DeJager or any of the other physicians who treated him while he was incarcerated, it is not necessary to address the defendant's submissions regarding the effect of the Crown Liability and Proceedings Act.

Costs

[110]        Neither party has made any submissions with respect to the issue of costs. Each party shall have two weeks to serve and file their submissions in writing regarding costs. The parties will each then have one further week in which to serve and file any reply submissions.                                                                           

JUDGMENT

THE COURT THEREFORE RENDERS JUDGMENT AS FOLLOWS:

1.          The action is dismissed.

2.          The issue of costs is reserved.

________________________________

Judge                            

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-861-01

STYLE OF CAUSE:                GASTON PAUL LEVASSEUR v.

HER MAJESTY THE QUEEN

DATE OF HEARING:                        May 26, 27 & 28 2004

PLACE OF HEARING:                      Brockville, Ontario.

REASONS FOR JUDGMENT BY:    Madam Justice Anne L. Mactavish

DATED:                                    July 12, 2004

APPEARANCES BY:

MR. CHAD T. CARTER                                                                      FOR THE PLANTIFF

MR. MATTHEW J. HOLMBERG                                                       FOR THE DEFENDANT                                                                                                           

SOLICITORS OF RECORD:                                                                   

MR. CHAD T. CARTER

Barrister & Solicitor

11 Princess Street, Ste 304,

Kingston, Ontario

K7L 1A1                                                                                                     FOR THE PLAINTIFF

MR. MATTHEW HOLMBERG

Cunningham Swan Carty Little & Bonham LLP

Kingston, Ontario                                                                       FOR THE DEFENDANT