No weighing of evidence at the non-suit application stage: Saskatchewan court

Judges must not weigh evidence to make actual findings of fact at the non-suit application stage, the Saskatchewan Court of Appeal had ruled in a recent decision.

In Hander v Kumar, 2022 SKCA 33, Harvey Dykstra was an elderly man who fell and struck his neck on the edge of a bathtub in his home in Weyburn, Saskatchewan. He was prescribed a painkiller at Weyburn General Hospital and was sent home with instructions to return if his condition worsened.

More than a week later, he returned with complaints of neck pain, weakness in his upper extremities, and numbness in his fingers. He was referred to Regina General Hospital. Dr. Aneil Kumar was the on-call neurosurgeon at the time.

Dr. Kumar made an initial assessment of his condition and noted that there were no neurological deficits, so he discharged Dysktra. However, the patient’s condition only worsened. He later saw another neurosurgeon, but by the time the full nature and extent of his injuries had been properly diagnosed, his spinal cord had already been compromised. Dykstra underwent emergency surgery which left him completely paralyzed.

Dykstra sued Dr. Kumar for negligence and breach of contract. He asserted that Dr. Kumar had failed to properly diagnose his injuries and to take timely action that may have prevented the nature and extent of his disability.

During the proceedings, Dykstra died, so the action was carried forward by the administrator ad litem of his estate. Dr. Kumar brought an application for non-suit which was granted by the trial judge and the action was ultimately dismissed.

In determining whether an application for non-suit should be granted, the court said the proper question to ask is whether a reasonable trier of fact could find in the plaintiff’s favour, not whether the trier of fact would do so. The court highlighted that a judge is required to consider whether the evidence that had been presented is capable of reasonably and logically supporting the inferences that a trier of fact would need to draw from it in order to find in the plaintiff’s favour.

In this case, the court found that the trial judge misapplied this legal standard. The court said that while the judge correctly referred to the proper authorities and legal principles, he ultimately approached the issues raised by weighing the evidence to make actual findings of fact, as opposed to simply considering what factual inferences the evidence could reasonably support. The court stressed that at the non-suit stage, a trial judge is not required to draw inferences from the evidence, but their task is only to consider what inferences could logically and reasonably be drawn from it.

According to the court, the evidence with respect to the patient’s age, general medical condition, the circumstances surrounding the fall, and the testimonies of other doctors who also saw the patient could lead a trier of fact to draw the inference that Dr. Kumar’s care and treatment of Dykstra fell below the standard required of a neurosurgeon in his circumstances. A reasonable trier of fact could further infer from the evidence that there was a substantial connection between the breach of standard of care and the damage that the patient ultimately suffered. The court allowed the appeal and concluded that a new trial is required.