 to Maul now presiding is now open. All persons who have anything to do with it, draw near and give your attendance and ye shall be heard. God save the team. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. Ah. This is the 18 Smith Shield. This is one of the highlights of the academic year at the Schulich School of Law. The Smith Shield goes back to 1927, and it's our most prestigious moving event. Previous winners of the Smith Shield have included vehicle trailblazers, such as Justice Bertha Wilson, the first woman on the Supreme Court of Canada, and some other names that some students here might recognize, such as Phillip Saunders, Bruce Archibald, Wayne McKay, Elizabeth Hughes, and Steve Coughlin. Our bench this year, as was mentioned, is comprised of the Honorable Justice Cindy Bushwalk and the Nova Scotia Court of Appeal, Honorable Justice Krista Brothers from the Supreme Court of Nova Scotia, and Mr. Frank Damond, QC, President of the Nova Scotia Barrister Society. And I thank each of them for lending their considerable time, efforts, and talents to this moving event. Thank you also to Stuart McKelvie for funding this event, and this year's representative is here today, and she's here with Conwin QC. Thanks also to Professor Naya Acharya for preparing this year's problem, and my assistant, Tatyana, for organizing everything. Please note, everybody, that this is going to be audio taped and video taped, take note of that. Now would be a good time to turn off anything that beeps, or whistles, or rings, or makes any other sort of rude noise. And following the moot, photos are going to be taken behind us here, of the judges and the participants, and then there will be a reception immediately following up in the faculty lounge, which is on the third floor, and everybody here is invited to that reception. So without further ado, I'm going to turn proceedings over to our exceptional mooters, Aaron McSorley, Emma Doucette, Jeremy Ryan, and Tina Norfolk. Good evening, my ladies and my lord. This is the matter of Watts and Agarwal. My name is Aaron McSorley, and I'm here this evening representing the appellant, Mr. Allen Watts. I'm joined by my colleague, Emma Doucette. My friends, Jeremy Ryan, and Costadina Northrop, represent the respondent in this matter, Ms. Amrit Agarwal. The facts of this matter are set out at pages two and three of the appellant's factum. Unless this honorable court would like me to recite the facts, I would propose to proceed directly to argument. We're familiar with the facts, Ms. McSorley. Thank you, my lady. This appeal is about protecting patient safety and ensuring the just compensation of those who are injured by the negligence of trusted healthcare providers. Ms. Agarwal made a crucial error in delaying resuscitation by three minutes after Mr. and Ms. Watts' child was born, not breathing with the umbilical cord wrapped around his neck. Had this delay not occurred, it is more likely than not that the Watts' child would have survived and been healthy. The first issue in this appeal requires this court to determine the appropriate standard of care to which Ms. Agarwal must be held as a midwife acting as a primary care provider, performing neonatal resuscitation in an emergency delivery situation. In finding that the trial judge committed an error in law in holding Ms. Agarwal to the standard of the reasonable physician rather than the reasonable midwife, the Supreme Court of Canada undertook a strict application of the professional standard of care analysis. The circumstances of this case, however, require the court to take a flexible approach by focusing on the nature of the role and the specific procedure and issue. Such an approach is an incremental change in the law that is supported in this particular case by the regulatory scheme and one that is necessary in order to protect patient safety, respect the reasonable expectations of Canadian families and provide injured victims with legal recourse to seek compensation. Midwives are explicitly authorized, obligated, and trained to perform the full scope of neonatal resuscitation techniques in their capacity as an obstetrical primary care provider. Under the midwifery regulations, midwives are required, clinical practicing midwives are required to be certified in obstetrical emergency skills, CPR, and neonatal resuscitation. And the Midwifery Regulatory Council of Nova Scotia has mandated that the minimum standard for competence in neonatal resuscitation is successful completion of the Canadian Pediatric Society's neonatal resuscitation program, including training in tracheal intubation. In doing so, the midwifery profession has adopted a biomedical standard of training. Midwives do not merely receive basic first aid training, nor are they expected to only be trained in the limited circumstances of initial resuscitation methods. Rather, as the primary care provider, midwives are expected not to assist in resuscitation, but to maintain complete responsibility over the full scope of resuscitation techniques that are entrusted to them as the need arises under their care. My friend submits that in this case, the difference in access to resources is an important determinant in different standards of care, but a physician's access to neonatal resuscitation teams or to hospital resources is irrelevant in this case. Dr. Suzuki did not testify that the reasonable physician would have made use of any particular unique hospital resources, nor that the reasonable physician would have enlisted the assistance of a neonatal resuscitation team. The Midwifery Council under its policy on required equipment for a midwife at a home birth mandates that a midwife has all of the necessary equipment, including intubation equipment, present at each home birth to carry out the full scope of neonatal resuscitation methods that are entrusted to the midwife. In this case, Ms. Egerwall had all of the tools and resources necessary to carry out competent care. But the definition of incompetence, as defined in the Midwifery Act, seems to confine incompetence to the delivery of midwifery services as defined in the legislation. So if the legislature has deemed incompetence to have that definition, then why would it be up to this court to broaden that? With respect, my lady, the standard of care in negligence is always a question of law. And it's one that is ultimately to be determined by the court. The courts have held that while standards of practice in the medical field may be helpful in assisting in setting that standard. The responsibility ultimately rests with the court. And if we defer that responsibility, then ultimately what the court is doing is abdicating its crucial oversight role in overseeing those professional standards and ensuring that in each appropriate case, the proper balance is struck between protecting patients on the one hand and protecting professional autonomy on the other hand. So is it your suggestion, Ms. McZorley, that what could be defined as incompetence for the purpose of disciplinary action under the Act is not necessarily the same or should not necessarily restrict the definition of negligence in setting the standard of care for the purposes of an action in court law? Yes, my lady. The Act covers professional misconduct. And so the standards may hold greater weight in that context in a regulatory professional misconduct context, but they do not determine definitively the standard of care in this case. Holding a midwife to a lower standard of care than other obstetrical care providers in this case does not respect the legislature's intention to position midwifery as a viable option for obstetrical primary care. To that point, section 51 and sub one of two of the regulations prescribe the procedures that a midwife can undertake. And would you agree with me that they're quite limited as compared to the procedures that an obstetrician can undertake? They are more limited, but in this case, we're not disputing the fact that physicians do have a broader scope of practice, both in terms of the complexity of the cases they can deal with, the types of patients they can care for, and the types of procedures they can undertake. But in this particular case, what's that issue is the prompt and proper initiation of neonatal resuscitation methods. And in the regulations, section 52-2, the regulations prescribe midwives the ability to carry out the full scope of neonatal resuscitation methods, up to and including complex techniques such as the administration of epinephrine and neonatal tracheal intubation. And so you're saying that simply because they overlap on that, that an obstetrician's standard should apply to a midwife? In this case, it's not simply the overlap, it's the fact that the council itself through the regulatory scheme has identified a gap in the scheme, whereby in permitting midwife attended home births where it's perfectly foreseeable that an emergency situation would arise requiring a midwife as the primary care provider to undertake resuscitation methods. What's at issue there is that patient safety is entirely dependent on the midwife's ability to promptly and properly respond. The council itself has identified that as a gap and has addressed it by authorizing, obligating and ensuring that midwives are trained to the biomedical standard to appropriately carry out that care in the circumstances in which it's needed. My friend submits that Mr. and Ms. Watts made an informed decision and assumed any of the risks that are inherent in the limitations around midwifery practice or indeed around choosing a home birth. While it is true that when a patient chooses a midwife or a home birth, they consent to certain limitations. For example, Mr. Watts did consent to not being present in a hospital, not having an obstetric surgeon on standby, for example, if an emergency cesarean section was necessary. Mr. Watts did not consent to an undue delay in the initiation of resuscitation on his son. The regulatory scheme in this case, given that midwives are authorized under the regulations to carry out the full scope of practice, trained on an annual basis and mandated that they are properly equipped in every home birth to carry out these procedures, those factors, the regulatory scheme as a whole, create and support a reasonable expectation on the part of families that this is care that midwives are not only competent to provide but expected to provide. Does it matter that the physician has years and years of training beyond a basic undergraduate degree and that the midwife has a not as rigorous a training perhaps or not as long duration training? There's obviously a very different training that a physician would take as opposed to a midwife. Any difference in training here is not directly relevant to the issue of neonatal resuscitation. We must be careful not to diminish the training that a midwife receives. It is a four year bachelor's degree. She doesn't attend medical school but it's a four year degree that is intensively focused entirely on obstetrical care. In addition, there is significant clinical training incorporated not only in the four year degree but also after the degree in preparation of licensure. While a physician attends medical school and has a wealth of knowledge about all areas of medicine outside the scope of obstetrics that a midwife may not have, there's no evidence to demonstrate that that additional knowledge is directly relevant to competency and providing neonatal resuscitation. They're trained to the same biomedical standard under the same program and they're both authorized to carry out the full scope of complex procedures that fall under that. They come at it with a different philosophy. Differences in philosophy don't they? The interventionist versus the non-interventionist seems to be a significant difference in the approach. In normal cases of pregnancy, the midwifery scope of practice or the philosophy of care does envision pregnancy and labor as a natural process and as a consequence, there are many situations in which a midwife may take a less interventionist approach as you say, as compared to a physician. But when a midwife crosses the line from normal practice to an emergency, as is the case here, an emergency by its very nature demands an interventionist approach. And so this isn't jeopardizing or diminishing the difference in underlying ethos in terms of midwifery versus medicine. It's that in this case, any difference in ethos is not directly relevant to the care that's being provided. And the council itself has, in this particular case, tempered the distinction between abnormal and normal care that exists within the scope of practice of a midwife. There's something different and special about neonatal resuscitation in that the council itself has identified this as a gap that's so fundamental and foreseeable that it's actually necessary to provide midwives with the ability to carry out the full scope of emergency care as the primary care provider. Ms. Agarwal must be held to a standard of care equal to that of other obstetrical primary care providers in this particular case. The standard of care analysis for professionals was most recently reiterated by the Supreme Court in the case of Terneusen and Korn. And courts have taken a strict interpretation of that approach by holding that the appropriate comparator in each case is a member of the same profession to which the defendant belongs. The circumstances of this case, however, require the court to take a flexible approach by focusing not only on the nature of the midwife's role as the primary care provider, but also her specific authority and training in neonatal resuscitation. My friend has said that the trial judge has drawn a false equivalency between overlapping scopes of practice and a uniform standard. But in this case, it's not merely a case of overlapping scopes of practice. The trial judge appropriately recognized that midwives replace physicians. They act in lieu of the physician as the primary care provider. And the council has seen fit to mandate that midwives are able to carry out the same scope of neonatal resuscitation practice as a physician. My friend relies on the case of Marsnes and Woolley for the premise that providers from different professions with overlapping duties will be held to different standards of care even when providing care to the same patient. With respect, Marsnes is not instructive in this particular case. In Marsnes, we were dealing with multiple defendants, each of whom were acting as a member of a collaborative obstetrical care team. Ms. Eggerwalt was not acting as a member of such a team in this case. The judge in Marsnes restricted testimony for the standard of care for the obstetrical nurse to other nurses with specialized knowledge in obstetrics, but the obstetrical nurse is not occupying the role of primary care provider in lieu of a physician and is not carrying out the full scope of neonatal resuscitation methods as the most qualified provider. It is Ms. Eggerwalt's authority and autonomy as the primary care provider in this case. That is of significance. While Marsnes may represent the status quo, it does not provide the path for the court to follow in this particular case. Canadian courts have recently demonstrated a willingness to hold healthcare providers to a minimum or a general standard of care. And showtime. My apologies. Most instructive for the purposes of this particular case is the case of Malinowski and Schneider at paragraph 39 of the appellants' factum. Malinowski was a malpractice case against a chiropractor in which the court permitted a neurosurgeon to testify to the standard of care to be expected of the defendant chiropractor. Now, in that particular case, the court characterized the testimony as establishing a minimum or general standard of care for the treatment and diagnosis of lower back injuries to which any healthcare provider who is diagnosing or treating that particular kind of injury may be held. In Malinowski, the court effectively recognized that there is a common or a general standard of care even amongst different professions with different scopes of practice and different philosophies of care. In this case, Dr. Suzuki's testimony may be more appropriately characterized as establishing a minimum or general standard of care to which any obstetrical primary care provider undertaking neonatal resuscitation in that role must be held. And as such a primary care provider in this case, this is the appropriate standard to which Ms. Agarwal must be held. What about the fact that Ms. Agarwal, as a midwife, is there to deliver care in what is framed as a normal pregnancy? So what faced her then became, as you put it, an emergency. And then by having the emergency team called and then started the resuscitation, wasn't that enough given that her real scope under the act of the regulations is to deliver in a normal and monitor in a normal pregnancy or a, what I would call maybe a low risk pregnancy situation. But then once it became clear that it was an emergency, she did take the steps that the act would require her to take. With respect, my lady, she did not take the appropriate steps. Much more is required of a midwife in that situation as a primary care provider than merely undertaking some efforts to resuscitate the child and calling 911. The midwife remains as the primary care provider and the council has specifically said in this instance that midwives are deemed to operate in that specific course of abnormal conduct. They're authorized to carry out the full scope of practice the same way a physician would. The scheme does not support the vision of a midwife as a mere stop gap in this particular situation. It's not enough that the midwife initiate some efforts and wait to pass on care to a physician. The midwife is actually required under the regulations and she's trained accordingly to carry out the full scope of care up to and including neonatal intubation if the need arises. The degree of risk in emergency delivery situations requiring resuscitation dictates that the standard of care to be met by primary care providers is high. In those situations, the ability of a midwife to refer or consult with a physician is insufficient to protect patient safety because as one judge aptly put it, wasted minutes in these circumstances can have tragic consequences. Urgent care by the very nature of the emergency is required. It is not unfair to hold midwives to a higher standard of care equal to that of other providers in this particular case. Neonatal resuscitation is not outside of a midwife's scope of practice. The council has specifically tempered the distinction between normal and abnormal in this particular circumstance and the regulatory scheme supports that the reasonable expectations of Canadian families demand more of midwives in this situation. Providing courts with the ability or the option to hold midwives to a higher standard of care in emergency situations is an incremental rather than a sweeping change. We are not asking this court to hold midwives to a higher standard in all cases nor even in all emergencies. We are merely asking this court to take a flexible approach in light of the regulatory scheme and the circumstances of the case and all of the facts in balancing the policy considerations in order to protect patient safety and to respect the expectations of Canadian families. No profession is to be above the law. Midwives are not free to dictate the standard of care to which the public is entitled. The standard of care is always a question of law that is ultimately to be determined by the courts and courts must not abdicate their responsibility to review professional standards in this case and to determine as is their right what constitutes competent care. If we value protecting patient safety, respecting the reasonable expectations of Canadian families and upholding the essential purpose of tort law as a means of compensating injured victims, this honorable court must allow the appeal and reinstate the trial judges finding on the standard of care. Subject to any further questions from the bench, those are my submissions. Thank you, Ms. McZorib. I have actually one question. You've suggested that this is an incremental change that you're asking us to make. Is that an acknowledgement that the law is not on your side? It is. The law has been interpreted very strictly under Tare Newsin both in terms of what can appropriately fall into the Tare Newsin exception and in terms of which comparators the court can look to. So in this case, we're advocating a case by case analysis that is very much in line with the court's case by case analysis to formulating the standard of care. We're advocating for a strict adherence to the regulatory scheme, to the expectations of society, to the facts and the circumstances. And courts are well positioned in order to prevent from this being applied in an over-broadway in cases where it would be unwarranted. Thank you. Thank you. Ms. Doucette. Good evening, my ladies, my Lord. My name is Emma Doucette and I represent the appellant in this case, Mr. Allen Watts. There were nine minutes between when that baby's head emerged from his mother's body with the cord wrapped around his neck and when Ms. Agarwal decided to finally attempt the neonatal resuscitation that she'd been trained to deliver and that she'd practiced for the last seven years. And it's those nine minutes and the moments that followed those that torment Allen Watts, that keep him up at night, that have changed his life and have changed him as a person. Allen Watts isn't asking this court to change the law, even incrementally, to find that he suffered compensable mental injury. The appellant will show that the suffering he experienced exceeds the threshold for compensation. Upholding the Supreme Court of Canada's decision in this case will change the law. It will provide a new unworkable threshold for the lower courts, which will result in inconsistent decisions. It will send an unreasonable message to tort visas and it will stand in contradiction to the objectives of tort law. Both sides to this dispute agree on the test for mental injury at law. It comes from Mustafa at paragraph nine where former Chief Justice McLaughlin said that mental injury is more than upset, disgust, anxiety, agitation. It must be serious and prolonged and rise above ordinary annuances, anxieties and fears. Minor and transient upsets do not constitute personal injury. This is a principled and workable threshold. Mr. Watts' symptoms and the effects that they had on his life were emotional, physiological and they affected more than one facet of his life. He experienced deep guilt, remorse, regret, self-hatred. He had trouble sleeping at night. His mental well-being was affected. Let me ask you, what does the court do if this court accepts the suffering was severe and prolonged? If the severe and prolonged suffering was related and as a result of grief, how does this court deal with that? Are you asking if it's a result of grief? So if it's caused by the grief? Yes, is it compensable? I would submit that it's not really relevant whether it's caused by the grief or not. Or rises from grief. I don't think that it's relevant here and I think that it kind of poses a difficult standard to the lower courts if we're going to expect courts to determine whether emotions arise out of grief or are caused by grief. I don't know that we're to that sort of scientific level where we can determine whether emotions arise out of viewing an event or out of other emotions. I think there's an interaction there. Because in paragraph 11 of the FACTUM stated as a fact which has been accepted by the respondent is referencing his grief being long and severe. So then is grief, are you asking his court to compensate for grief? Or are you saying the grief is irrelevant and it's the resulting mental harm? My argument in this case is that we're not asking the court to decide based on grief. It's almost irrelevant to Mr. Alan Watts' case because he happened to experience mental injury that goes beyond the grief that he experienced. And so it's not a question for this court to decide whether grief is compensable or not. Because- That's not what you're really asking us to do. I'm not asking you to do that, no, that's correct. I don't understand why not. It strikes me that if the grief and the sorrow as a result of coming from watching this series of events happen has caused him to, that grief and sorrow has caused him to be mentally injured, why wouldn't you ask us to compensate for that? Because as the law stands right now, there's sort of a grief exception in the law that grief cannot be compensated. But can grief go to the point of being a mental injury as opposed to a mental harm? What they're saying in these cases seems to me to be that grief is mental harm. Grief and sorrow is mental harm, not mental injury. It doesn't go to that extent, it's mental injury. Not on my reading of the case law. It's stated as an exception. It's not explained very well by the courts why grief is an exception. And the Supreme Court hasn't opined on grief in recent history or if at all. And so Sadati does open the question to the courts that they certainly could compensate for grief. But I don't think that the court needs to answer that question with this case, simply on the facts. Because Mr. Watts suffered more than just grief and sorrow. That's correct. So Allen Watts experienced extreme grief, guilt, remorse, regret, self-hate. He had trouble sleeping. He also had negative effects on his mental wellbeing. He no longer has a love for life. He doesn't laugh and joke. He relives the death of his child over and over again. His social life has been hampered. He no longer feels like going to social events and being with his friends. And he also experienced personality changes. He was once happy, go lucky, friendly and outgoing. And he's now quiet, isolated and affectless. These symptoms and effects have been serious, not minor. They've been prolonged, not transient. And they've been more than ordinary annoyances, anxieties, fear, upset, agitation. So they exceed the threshold laid out in Mustafa and recently confirmed by the court in Sadati. And they're almost identical to the symptoms experienced by Mr. Sadati. In that case, Mr. Sadati exhibited a personality change from being funny, energetic and charming to Salin and Moody. And then he experienced the deterioration of relationships. Now these arose from an accident. But the court was very clear in this case that Mr. Sadati's symptoms fit well within the Mustafa parameters. And Justice Brown stated that they showed a serious and prolonged disruption, the transcended, ordinary, emotional, upset and distress. So other than headaches that Mr. Sadati experienced, there were no symptoms that Mr. Sadati experienced that Mr. Watts did not. And so here we have similarly situated litigants and the court should treat them the same. The difference between these cases is, as you expect, grief, Mr. Watts comes to the court with the additional feelings of grief, of having lost a child. So is it your suggestion that the court got sidetracked and mislabeled this situation as one of grief and fell into the we don't deal with grief and really forgot to look at that it's much more? Is it a mislabeling situation? That's exactly it, my lady. It's a mislabeling situation and the court in Sadati suggested that we not categorize people and we not put them into boxes and put them on a shelf. And that instead we look to the symptoms that they're experiencing and the effects that they've had on their life. Which is I guess why I ask the question of grief because strikes me that this is, if it is a grief case, the grief, you know, potentially could be argued to be quite severe and prolonged and those are the effects and the symptoms they talked about in Sadati. And so in Sadati, Justice Brown also says we can look at the entire negligence analysis and let it inform us more about what's going on there. And so I'll suggest to my Lord that we think about now the causation analysis, that portion of the negligence analysis and think about the specific symptoms that Mr. Watts is experiencing, guilt, remorse, self-hatred and think about the situation that he found himself in on the day that his child was born. And I would suggest that it's probable that he's experiencing these symptoms because he was a witness and almost a participant in this situation. He was standing by, Ms. Agarwal asked him to go and call 911. He now has a reason to think back to that day and say, why didn't I have the phone next to me? Why didn't I call the paramedics quicker? Why didn't I intervene immediately? Why, why, why? And so he finds himself ruminating about the events of this day until he spirals into self-hatred. And I'm not saying that those are the facts here. I'm saying that it's probable that this type of situation arises because he experienced the traumatic event of witnessing his child die. And so it's not likely that it's just grief. We understand grief as a culturally acceptable process. And we don't need a legal definition of what grief is. We see our friends and relatives go through it when they lose loved ones and we perhaps have lost loved ones ourselves. It's universally understood that there's deep sadness and maybe it's prolonged, maybe anger, maybe acceptance or denial. But it's not the ordinary process of grief to spiral into self-hatred, to experience extreme guilt and remorse and ruminate over and over again until you're up late at night and can't sleep anymore about the events of that death unless you've actually been there. And so I would submit that it's important that we look at all of the facts and we look at the negligence analysis as a whole and let that inform us about how and why Mr. Watts is experiencing more than grief. I would also suggest that we don't need to sanitize this analysis of grief. As you've suggested, plaintiffs often come to the court and claim nervous shock when they've lost a loved one and have witnessed that death as a traumatic experience. And so the courts are used to dealing with plaintiffs who are experiencing grief as well as other mental injury or mental harm as a result of watching that traumatic death. And the court in Cox and Fleming put it away that we can understand when he said that the plaintiff's grief was intensified by watching his son in a state where he was badly injured and then later expired. And so I think it's fine if we understand the grief being intensified and I don't think that we need to tease apart the grief from the other symptoms in order to understand it. I think we can understand Mr. Watts is experiencing more than grief and that his symptoms and effects exceed the threshold it laid out in Mustafa. Allowing the case at Bar to stand as it is will present problems for the lower courts because it establishes a new threshold that's unworkable for plaintiffs who are grieving for a loved one. It will severely restrict claims for those plaintiffs and it will present potentially a complicated and unprincipled approach for the lower courts. If we go back to the majority's decision in paragraph 33, the Supreme Court said, there's no doubt that Mr. Watts has suffered considerable grief and distress at the loss of his son. However, the law is clear that grief's sorrow and the consequent emotional distress are not compensable. So here on the one hand we do have the court recognizing that there was additional emotional distress and the word consequent I would submit is going to be troublesome for the lower courts to interpret and so does it have to be grief arising in more distress and this can result in new tests for causality and it risks inconsistency in the lower courts. Rejecting grief as a root cause also raises some questions such as why is grief less legitimate than an accident as Mr. Sadati experienced? There's three different interpretations that the lower courts could take from these words. One of them is that the grief must cause other symptoms and that if they are caused by grief then they will not be compensable. Another will be that maybe they will interpret Sadati as applying as well as this case and they will look at the full gamut of symptoms and the effects on Mr. Watts' life and say that, well unless a plaintiff has more severe harm than what Mr. Watts has experienced either they have more symptoms or they have more severe symptoms than what Mr. Watts experienced then they cannot be compensated. Courts can also come to the conclusion that any plaintiff coming to the court with grief will be excluded from compensation. And so the appellant submits that this does not uphold the objectives of tort law. It doesn't seem to be fair to plaintiffs. It also sends a really strange message to tort visas whereby if someone dies as a result of their negligence and a third party finds that to be a traumatic event they will not likely be compensated by the courts if they've lost a loved one because they come to the courts with grief. And so they would have to reach such a high level, a level of mental injury beyond what Mr. Watts has experienced before they will be compensated. On the other hand, if that loved one doesn't die or if it's not a loved one and that person does die, that third party will be more likely to be compensated. Is that the message that we want to send to tort visas? That human life isn't important, that they shouldn't be deterred from these things? It also is contradictory to the way that we think about foreseeability. My friend brings up indeterminate liability or the floodgates problem as an issue in this case. But arguably, Sadati has opened the floodgates, if indeed there is a flood to be had. Affirming the Supreme Court's decision in this case, in the case of Barr, will not shut the floodgates. It will only serve to introduce instability in the law. Sadati and Mustafa are not before the court right now with respect. And Sadati will remain the leading case for mental injury for plaintiffs without grief. And Watts and Agarwal will be the case, the leading case for plaintiffs coming to the court with grief. The lower courts will distinguish these two cases. So we will have created new law. As well, Justice Brown considered the floodgates problem in Sadati and he suggested that it's less important than the principled approach of allowing equal protection under the law for victims of physical injury and mental injury. He also pointed out that there are multiple hurdles to a plaintiff in a robust application of the negligence analysis already. And so that should help contain any floodgates problem if indeed there is one. This is not a situation or a concern, policy concern that's unique to nervous shock. And it may be better suited to a conversation about the quantum of damages than this conversation, which is essentially about barring a claimant from even claiming mental injury. When we consider the symptoms and the effects on Alan Watts of this traumatic birth experience, they clearly exceed the threshold set out by the Supreme Court for compensable mental harm, that of ordinary annoyances, anxieties and fears, not minor or transient. And Mr. Watts is a similarly situated litigant to Mr. Sadati. When the causation analysis is undertaken, it's clear that being present for those nine minutes and the horrible minutes afterwards, in all probability caused the mental injury for Mr. Watts. And it becomes clearer and clearer that he suffered more than grief. And although this respondent would have you confirm the Supreme Court's decision and saying that it maintains the status quo, that it keeps the legal threshold as it is and as it was laid out in Mustafa, it actually changes things and it creates an unworkable situation for the lower courts, which is going to result in an instability for the law. And it ultimately arises in a situation that's contrary to the objectives of tort law, namely compensation, deterrence and fairness. That concludes my submissions unless there's other questions. Thank you, Mr. Sadati. Thank you. Good evening, my ladies and my Lord. My name is Jeremy Ryan and together with my colleague, Kostadina Northrup, we represent the respondent in this matter, Ms. Agarwal. Dr. Marsden Wagner famously said that having a highly trained obstetrical surgeon attend a normal childbirth is analogous to having a pediatrician babysit a healthy two-year-old. Indeed, it is unduly redundant, expensive and 99% of the time it's completely unnecessary. We would add to Dr. Wagner's analogy by emphasizing that even in the small fraction of instances where pregnancies and deliveries require emergency obstetric care, this honorable court should not hold Ms. Agarwal or any midwife for that matter to the standard of a physician because doing so would have adverse impacts on the law, on the profession of midwifery, and on the way that our healthcare system currently functions. By way of a brief roadmap, there are three things that this court must recognize in order to make a proper determination of this appeal this evening. The first is that making an informed decision rooted in statutorily valid standards of practice and evidence-based knowledge on techniques in neonatal resuscitation does not constitute a breach of the standard of care, even if what followed was something tragic. The second is how different scopes of practice among midwives and physicians, respectively, really dictate how they're calibrated and frankly competent in providing emergency care, and in this case neonatal resuscitation. The final thing is that informed choice and shared responsibility among midwives and clients plays a crucial role in setting client expectation and enhancing client autonomy by providing members of the Canadian public with healthcare providers that align with their own personal philosophies on the role of medical intervention during childbirth and in the postpartum period. Now, subject to any questions from the bench at this time, I'll move directly into discussing a little bit more about the importance of informed choice in this matter. So there are real intangible benefits associated with engaging midwifery services. However, there are also known and quantifiable risks. When the Watts made the informed choice to engage the services of Ms. Agarwal at a home birth outside of a labor and delivery unit, they weighed these costs and benefits. Where is it in the record, Mr. Ryan, that the Watses made a conscious decision that if their child was not breathing when he was born, that there would be a delay of three minutes before he was resuscitated? My lady, that isn't specifically in the record. However, it is a direct reflection of the stash-torally valid standards of practice that Ms. Agarwal is adhering to. I reviewed the midwifery act, as well as the regulations in detail, Mr. Ryan, and I see nowhere in that standard of practice that it says that it is a recognized standard for midwives to wait three minutes before a child is resuscitated when he or she is born, not breathing. Fair enough. Can you point that to me? I could not, my lady. However, I can point you to the expert evidence that Ms. Han gave at the trial level, which shows that contrary to how my friend paints this picture that this three-minute delay was not a catastrophic emergency like my friend would have you believe, and that, in fact, this three-minute delay during it, the baby was still receiving oxygen from the umbilical cord. That Ms. Agarwal was doing everything that was required of her from my understanding, according to her education and her training, in order to initiate your resuscitation techniques. So, well, you're quite right, my lady, that the standards of practice don't prescribe specific time limits for resuscitation. That Ms. Agarwal was operating within the framework of a wealth of evidence-based knowledge that midwives are trained in with respect to neonatal resuscitation. And, moreover, that, well, the time limit may not be in the standards of practice, that Ms. Han's answers are reflective of these statutorily valid standards of practice because that's simply what she roots her practice in, in this normal low-risk care where emergencies are, frankly, a little bit more of a stop-gap measure until someone with a broader scope of practice and who's more competent in providing neonatal resuscitation can be present. But isn't the midwife under 51 sub-two of the regulations trained and perfectly capable of undertaking those steps and procedures like, as mentioned before, renovation, airway mask, et cetera. So they are trained in interventionist methods. Yes, my lady, they certainly are. However, there's a distinction between training and equivalent competence to physicians. Well, you're quite right that midwives are trained in doing these things. What we'd submit is that midwives are simply not competent to the same degree or even, frankly, in the same kind of way as physicians in providing specifically neonatal resuscitation because the law as it stands today in Ternuzin as we note at paragraph 18 of our FACTIM, and this is from paragraph 46 of the decision, says that we measure other professionals against similarly-situated individuals with the same knowledge, competence, and skill as other people in that field in Canada. Frankly, Ms. Garwald does have knowledge, competence, and skill in providing neonatal resuscitation. However, because she does not hold a medical degree, because she did not complete a residency in obstetrics, because she doesn't have the resources of a hospital with her at the time, she does not have the similar amount or similar type of competence as a physician would have. In fact, this is a good time to pause and even say that Dr. Suzuki's expert evidence is also rooted within his statutory scope of practice, which is far broader and, frankly, also has lived experience as an emergency, for not an emergency, as an obstetrician at the IWK with an entire neonatal intensive care unit at his fingertips. So we really think that scopes of practice and also lived experience play a very important role in shaping how this court ought to conceive of the standard of care to which midwives should be held, and that when you really dig into the differences in education and in training, it doesn't really make all that much sense to hold midwives to the same standard of care as physicians, despite the fact that they're performing what on the surface looks like a very similar service. Doesn't it make sense for the public, though, that they're serving? Maybe you may say it doesn't make sense for them, the midwives, but what about the public they're serving? Doesn't the public deserve them to have a similar standard when it comes to this type of resuscitation during this delivery? Frankly, my lady, no. The way what we're reacting against is this distinction between a higher or a lower standard of care or really ascribing any value judgment to the type of standard of care that's provided. This case is about whether midwives should be providing a different type of standard of care altogether. But more specifically to your question, there's really two ways to answer this. The first is that midwives don't provide an incompetent standard of care in neonatal resuscitation, and the second has to do with the legislature's cost-benefit analysis in creating the midwifery profession. So on the actual services that midwives provide on the first part of this answer, the mandate of the midwifery regulatory council, and I quote, is so that midwives are qualified, competent to provide safe, high-quality care to women and their families in Nova Scotia. The council is mandated to protect the public by ensuring that all registrants engaged in midwifery practice are safe, competent, and ethical practitioners. So we're not dealing with people who are just walking into a home and helping people give birth. These are regulated professionals that provide by law safe and competent services. But to the second part of your question, my lady, yes, the public does deserve to have competent care providers. However, when the legislature made the decision to create the midwifery profession, they very much so like the agarwalls engaged in a cost-benefit analysis. Quite simply. Where did they do that? In creating the very midwifery act and creating section 31 of the midwifery act that limits midwives scope of practice to normal low-risk births, by providing limited types of training in emergency neonatal resuscitation, by, for instance, the Canadian Pediatric Society's neonatal resuscitation program, by requiring midwives to complete that, that doesn't imply competence to the same standard as physicians. But you're referring to the legislature having some sort of financial forethought in setting a different standard of care. Is it enhanced that that was a discussion, that the legislature was set a different, and intended to set a different standard of care for midwives because of a cost and benefit analysis? Not enhancer, not to my knowledge, my lady. I'm just wondering, I've read that in your fact and as well, that there's a cost-benefit analysis was behind this on behalf of the legislature, and I'm wondering, where do you get that from? My lady, I get it from the statutory signals that the legislature is sent by way of the midwifery act, and by way of empowering the midwifery regulatory council of Nova Scotia to set standards of practice that midwives ought to abide by, and by creating a self-regulated profession that has the benefits, the privileges, and the responsibilities of setting standards of practice. And within those signals, I get it specifically from the standard, I believe it's in standard one, however I can pull up the exact wording, that explicitly says that midwives must provide care within the scope of their practice. No similar standard exists within the medical act. A unique feature of the midwifery act, my lady, is that it gives not only statutory force to the standards of practice and to the scope of care that midwives can provide pursuant to section 31 of the act, but that it also ties these standards to the scope of practice, which doesn't exist in the medical act. The only thing that's restricting physicians is their individual scope of practice, which is essentially limited to the type of residency that they complete and however competent they feel, whereas by law, midwives are confined to providing normal low-risk care. To me at least, my lady, this is a signal similar to the often quoted learned hand formula that government's policy decision to have multiple players in our healthcare system, each of which with their own unique and distinct scopes of practice, reflects this formula. So it's that the legislature has weighed the burden of taking precautions against the probability that an unforeseen tragedy will arise. In so doing, it's decided that society gets more net utility from having midwives attend normal, low-risk pregnancies and deliveries than it would by having a physician at every single birth. And I would refer your leaderships and your lordship back to the quote that I opened my presentation with, which is that it's neither desirable nor is it feasible to have the highest trained or the most costly healthcare provider at every single birth. While maybe not explicitly, at least through its signals, the legislature has recognized that there's value in having healthcare providers with limited training that are able to provide care in the normal course. So back, actually, I think that we've covered the notion of informed choice sufficiently and that your leaderships and your lordship understand that midwives are required by law under standard 5.3 to discuss with their clients the limitations and the scope of midwifery practice and that the Watts were informed of this presumably if Ms. Garwell was adhering to these standards of practice before she provided care. What I'd like to turn the court's attention to though is I think this distinction between overlapping duties and a uniform standard of care. Now, we don't agree with how my friend has characterized the relationship between professional duties, scope of practice and standard of care. It's very true that both midwives and physicians provide neonatal resuscitation. However, this doesn't indicate that the roles are sufficiently similar to create a uniform standard. I would refer the court to our factum at paragraph 46 where standard 2.1 essentially illustrates that overlapping scopes of practice don't necessarily mean a uniform standard of care. In fact, these just mean that midwives must recognize unique scopes of practice. Specifically, standard 2.1 reads that the midwife recognizes and respects the unique and overlapping scopes of practice of other members of the team. A good illustration of this is in the Marsnass decision with Justice Ralph of the British Columbia Supreme Court where the principle that as my friend pointed out that we can extract is that practitioners from different professions with overlapping duties will be held to different standards of care even when attending to the same patient at the same point in time. Now, my friend would have you believe that simply because the practitioners in this case are working in a team that it's not actually an apt illustration of this principle, to this we would say quite the opposite. The fact that the obstetric nurse in this case actually had the benefit and resources similar to that of the obstetrician of the pediatrician further illustrates the fact that courts are still in those instances where there isn't a resource disparity, where even where the knowledge disparity may be less pronounced, courts are still not willing to hold midwives and, or not midwives rather, courts are still not willing to hold healthcare providers with different education, with different knowledge, competence and skills to the same standard of care as one another. Quite simply, if the legislature intended that a midwife was to act like a physician, midwives would be licensed as such. Unless someone meets the requirements of licensing, they can't be held to the same standard of care of someone in an entirely different profession. This is simply not how our legislature has decided to create separate health professions and allow for them to have the benefits of self-regulation. Let me ask you this then. What do you make of section seven of the act, duties and powers of counsel, where it says the counsel shall establish, maintain and promote standards of midwifery practice and consult with the College of Physicians and Surgeons of Nova Scotia, Doctors Nova Scotia, et cetera on these standards? Why are they asking doctors to consult on the standards if there isn't potentially an overlap in practice that requires similar standards? Well, if anything, my lady, this is actually a strong indicator that physicians deem and endorse the current midwifery standards of practice as appropriate for midwives, and that midwives should, for lack of a better word, be staying in their lane when they're providing care. This is not a recognition that physicians want midwives to act like physicians. The very fact that physicians actually endorse midwives having a different scope of practice and having different competencies in providing types of care to patients in terms of neonatal resuscitation shows that physicians have an active role in keeping these professions legally distinct, but also distinct in practice in terms of the care that is provided, respectively. I see that we're running short on time, but one last thing that I'd like to bring up with the court here, because I'm not sure that I fully answered your ladyship's question about the legislative signaling that we get between the midwifery act and the medical act. The best way to describe this perhaps is with the metaphor of a circle, and I referenced this at paragraph 25 of my factum, that if the concept of primary care is a circle, physicians, by way of the medical act, occupy that entire sphere unencumbered by restrictive prescription rights, by referral obligations, by statutory distinctions between normal and abnormal care. Midwives within the circle of primary care occupy a far more rigid sub-circle, the content of which is normal low-risk care. Now, through comparing the midwifery act with the medical act, as I did in my factum, and I'd refer the court to it, it shows that navigation within the circle of primary care is not a two-way street. That doctors can enter midwives part of the circle by simply providing care to low-risk patients, but that midwives cannot stray beyond their rigid scope of practice. If that's the case, if doctors can go into the circle, the smaller circle of midwives, and deliver babies from the normal course of things, or resuscitate babies when things go wrong, then what prevents a doctor from giving an opinion on the standard of care within that small circle that they both occupy? Because that doctor, despite the fact that they can provide normal care, as different knowledge, skills, and competence than the midwife. That's exactly what we think this appeal is about, that when people are getting the care of a midwife, they're getting an entirely different service than that of a physician. The fact that the physician can also provide that service doesn't mean that the midwife is providing it like a physician. It simply means that they're providing that service to someone within the auspices of their own education, within the auspices of their own knowledge, and competence, and statutory scope of practice. I struggle to see how that actually shows that Dr. Suzuki's testimony was appropriate here, my lady. So to conclude, I would like to leave this court with three ideas this evening. The first is that the law does not describe a value judgment to standards of care. The appeal is not about whether midwives provide a higher or a lower or deficient standard of care. This appeal is about whether midwives ought to provide an entirely different kind of standard of care. Based on by analysis in the different types of acts, we believe that this must be the case, not to mention the fact that when we start cherry picking standards of care from other professions, there's actually a rippling effect on the normal course of midwifery care. If we start telling midwives they have to act like physicians in emergency scenarios, that's not a far step from essentially making sure that on the contingency that something goes sideways, a midwife also completes a residency in obstetrics or has a nurse with them or has more specialized monitoring tools with them. The second notion is the notion of free choice, that the Canadian public ought to have the free choice to seek out care from a healthcare provider that aligns with their own philosophies on the role of medical intervention during childbirth. And I see that amount of time. I ask that 30 more seconds from the bench just to finish up. Thank you, my lady. The third is this, that a proper determination of this appeal requires this honorable court to respect the statutory and the technical foundations of Ms. Han's expert testimony and Ms. Agarwal's actions. The legislature has delegated its authority to the Midwifery Regulatory Council of Nova Scotia to set standards of practice that midwives must abide by. This is exactly what self-regulation is about. When Ms. Han's testimony and Ms. Agarwal's actions in that respect are rooted in these standards in addition to a wealth of knowledge about providing emergency neonatal resuscitation within the scope of midwifery practice. Well, there is no doubt that what happened to the Watts was a tragedy. We don't measure the standard of care according to how tragic an event was. Instead, we look to similarly situated professionals that have comparable degrees of knowledge, skill and competence. For these reasons, we ask this honorable court to dismiss this appeal and restore the Supreme Court of Canada's ruling. Subject to any further questions from the bench, we have no further submissions on this point. I'm not sure if I understand why standard of care in that small circle that is overlapped by the big circle that the physicians fill isn't the same. Because midwives are trained, educated and practiced differently than physicians. A circle of practice. And if a doctor can do that little circle of practice as well, why isn't it the same standard? Why does a doctor have a different standard acting in that little circle should a doctor choose to do that from a midwife? Of course, my lord. Because the law in Ternousen says that we measure individual actions against comparable knowledge, skill and competence. Well, midwives and physicians may provide a similar service or even the same service at some points in time. The fact that under the Ternousen analytical framework we look to knowledge, skill and competence should be a signal to this court that because midwives are educated differently, because they're trained differently and because they're differently competent in terms of receiving authorization even from hospitals to provide neonatal resuscitation that we don't look at them like doctors. Quite simply because. What do we do with the fact that babies breathe the same regardless of whether they're being brought into the world by a doctor or a midwife or a nurse or a GP or a obstetrician? They breathe the same and they need to be resuscitated or else there's bad consequences. So in terms of resuscitation techniques, why cannot any professional that has any training and it's within their scope of practice to resuscitate not talk about what is a acceptable standard of practice on resuscitation? Because the standard that Miss Agarwal met here is the appropriate one. As per Miss Hans testimony, the testimony given from a midwife who has experienced as a midwife, this was not an emergency until Miss Agarwal identified it as such. The very fact that a court is wrapped around a baby's neck and a baby isn't breathing immediately after birth, I know it sounds ridiculous in and of itself though, is not an emergency because there's other forms of oxygen that the baby are getting through the umbilical cord. But if that doesn't convince you, my lady, this should, that the Watts made the informed choice prior to engaging Miss Agarwal's services that when they were to have a home birth, if things were to go sideways, that they'd be getting a healthcare provider who acts differently than a physician in providing neonatal resuscitation and that there would be a time delay before getting to the hospital. So that while what happened to the Watts was a tragedy, we need to understand this within the framework of statutorily valid midwifery practices, evidence-based knowledge that midwives abide by and within the framework of informed choice. Thank you, Mr. Ryan. Our questions have taken you over your time, so thank you for indulging us. Thank you, my lady. Miss Northrop, we all be pleased to hear from you now. Good evening, my ladies and my lord. My name is Kostadina Northrop. I'll be representing Miss Agarwal in the second issue in this appeal, which concerns the nature of Mr. Watts' mental harm. I might just readjust this. The proper resolution of this appeal requires the honorable court to consider fairness and justiciability. Compensation for grief and sorrow has historically been excluded from damages awarded under the common law of negligence. The common law of negligence is structured unavoidably by concepts of proximity, remoteness, reasonableness, ordinariness, even normalcy. And the application of those concepts in the negligence analysis has fashioned a law that could not treat claims for grief and sorrow fairly because they could not treat them consistently and predictably for all classes of plaintiffs who could be expected to bring such claims before courts. Moreover, this honorable court can either predict nor weigh the consequences that an expansion of common law liability would have for the midwifery profession in Nova Scotia or for Canada's healthcare systems more generally. It is therefore poorly situated to determine how fairness to society would be affected by an attempt to create more fairness to plaintiffs by changing the common law. As my colleague, Mr. Ryan, has argued the Supreme Court of Canada did not air in holding Miss Agarwal to the standard of a reasonable midwife. If this honorable court rejects the respondent's position with respect to the correct standard of care, it should nevertheless dismiss this appeal for the following reasons. Mr. Watts framed his action as a claim for grief and sorrow arising from nervous shock. Compensation for grief and sorrow has historically been excluded from damages awarded for nervous shock. Mustafa and Colligan and Sadati and Moorhead reoriented our approaches to mental harm and mental injury under the common law of negligence, but neither case addressed the historical exclusion of compensation for grief and sorrow from heads of damage under that law. So you agree that Mr. Watts has brought a claim under the tort of nervous shock? I would say, my lady, that Mr. Watts has brought a claim under the common law of negligence and claims like his when brought under the common law of negligence were often characterized as claims for nervous shock. The language has changed historically? And he's pled mental harm. Yes. And the harm he's said he's had and your factum has accepted these facts is that he's now quiet. He used to be happy to go lucky, friendly and outgoing. He's isolated, affect less, trouble sleeping, deep regret, extreme guilt, remorse, self-hate, no longer laughs and jokes, isn't social, has a loss of his love for life. That doesn't sound like grief. Isn't that more than grief? It may well be, my lady, but Mr. Watts framed his claim as a claim for grief and sorrow arising from nervous shock. And in doing so, he broadened the area of impact that his claim would have when the courts that heard it rendered their decisions. So are you saying simply because he framed it and mentioned grief, then that precludes him? So if he amends his pleadings today, which people do all the time at the appeal court, and just pleads mental harm, does that end your argument? No, it doesn't. For two reasons. First, that if Mr. Watts were simply to amend his pleadings at the Supreme Court of Dalhousie, there was not a proper evidentiary record established at trial to support his claim for mental injury under the analysis that's established or proposed rather in Mustafa and then accepted by the court and explicitly affirmed in Sadati. So I can come back to the evidentiary record in a moment. Secondly, I do not think we should exclude or ignore the fact that Mr. Watts framed his claim as he did. He framed it as a novel claim and however much we might not question the wisdom of doing so the claim was structured in a way that would force courts to ask to what extent grief and sorrow is going to be considered compensable under the laws and now stands following Sadati. Sadati did in many ways remarkable work to open up the way in which mental injury would be treated under the common law of negligence moving forward, it left many questions. Mr. Watts' claim was a novel claim asking the court to answer one of those questions. The court answered in a way that did not support his position but he cannot now recant from that framing. Back to the evidentiary problem though to address that question more directly. Under Sadati, for a plaintiff to succeed in a claim for mental injury, they need to prove on the balance of probabilities, of course, that their alleged injury that the harm they suffered could have been reasonably foreseen in a person of ordinary fortitude. Mr. Watts did not lead evidence at trial to support that aspect of his claim. We saw this very problem in Mustafa when Mustafa's claim came to the Supreme, when Mr. Mustafa's claim came to the Supreme Court of Canada. Mr. Mustafa had not led evidence at trial to suggest that the particular harm he experienced would have been suffered by a person of ordinary fortitude and thus would have been reasonably foreseeable to the defendant, Kelligan of Canada. Mr. Watts is in almost the exact same position. All of the evidence established at trial on record suggested that his claim was, in fact, out of the ordinary, was beyond the realm of ordinary experience of grief, in particular. And in fact, at paragraph 77 of the Fatima of the Appellant, our friend state, Mr. Watts exhibited a number of additional symptoms. The ordinary person would recognize as falling outside the ordinary experience of grief. So the fact is, is that even if Mr. Watts were to amend his pleadings now, we do not have a proper evidentiary record before the court to know whether or not his claim ought to succeed. Hi, Larry. I'm struggling because I read this description of Mr. Watts's injury is what appears to be by a fair reading of the description what I would describe as a mental injury as opposed to a mental harm. I take it that because that arises from grief and sorrow that you would say it doesn't count. Not necessarily, my lord. What I've said is that because Mr. Watts framed his claim as he did as a novel claim, putting it before the court to consider whether grief and sorrow ought to be compensable under the common law of negligence, that he cannot now recant from that framing. But if we were to separate, well, please go ahead. So if it doesn't be the fact that he's framed as a novel claim, allow us, give us the opportunity to look at that exclusion of grief and sorrow as falling, grief and sorrow that falls short of the test is set out by former Chief Justice McWalker and Justice Brown and both Mustafa and Sadati. Doesn't that allow us to look, I mean it was my question for your colleague. Doesn't this case demand that we look at whether or not grief and sorrow, at the level of meeting those threshold tests that we see in Mustafa and Sadati, give us an opportunity to revisit that? Yes, I agree, I agree, my lord. I think we should revisit it, which is why I think that we should not attempt to separate out his mental injury from the grief and sorrow that he played. My position, our position rather would be maybe more clear, if you allow me to illustrate for you why it is that we have argued that the analysis set out in Sadati would be unfair, grief and sorrow were open to compensation under the common law, not necessarily unfair for plaintiffs like Mr. Watts, who have suffered harm that is recognizably, I think, barring evidentiary records, recognizably harmed that would most likely meet the thresholds established, but unfair to other plaintiffs who could be expected to bring claims for grief and sorrow before the courts. I could, if the court wished, spend a few moments walking through the analysis established in Sadati, but if the court feels familiar enough with that, I could just jump into the implications of that analysis. The only question on Sadati is that it seems, that decision seems to suggest that plaintiffs will not be hamstrung by their pleadings and that as long as a mental claim is alleged in some form or fashion, then we shouldn't get too uptight about the inclusion of grief or how specific they've been. What do you say about that? Should we be concerned about grief? Clearly he's claiming mental damages. Yes. My response to that is in two points, my lady. First, when Sadati discusses pleadings, the issue there is the basic principle at the heart of questions around sufficiency of pleadings. It's do the pleadings allow the defendant to know the case they have to meet? And so the court in Sadati was attempting to discern whether or not the plaintiffs' pleadings had made note of some kind of questions of mental harm that would be brought before the court and that the defendant could conceivably recognize and know that they would have to discuss. That is a different question from a set of pleadings that introduces a question around a head of damage that has historically been excluded from the law and that the court must now consider and the court must now grapple with as it comes to decide whether or not that have damage ought to become compensable. So to use an analogy, my lady, if I were to drive home tonight after this hearing and ran my car into a tree on a residential property and if that homeowner was to wish to bring a claim against me in negligence for the harm done, that homeowner chooses to bring a claim against me not alleging property damage or a duty of care owed to him but instead that I owed a duty of care to his tree that would give the court a very specific question to ask, a very specific analysis to have to grapple within a very specific history of the law to have to consider as it grappled with the legal personality of trees. Mr. Watts Claim asked this court to consider the nature of grief and sorrow under the common law of negligence and the court needs to grapple with that tonight. My lady. My Lord, to return to your question, why the Sadati approach would not be fair to plaintiffs or what rather would not treat all classes of plaintiffs fairly. Let me say first that grief and sorrow are highly individualized and subjective experiences that produce a wide array of symptoms and effects and this makes them difficult to assess fairly through the common law of negligence which by its very nature looks for sameness, comparability, proximity, predictability and ordinariness as a means of distinguishing that which is anomalous and unforeseeable. Now imagine a group of joined plaintiffs, one of whom is a plaintiff in Mr. Watts exact position. The rest of whom are more peripheral family members who also experience grief and sorrow as a result of the fatal delivery of the expected child. These family members might be grandparents, aunts, uncles, children who might have been excited cousins or siblings of the child. And imagine in this scenario as it was in Mr. Watts case that the plaintiff in Mr. Watts position was present at the time of the fatal delivery, was witnessing it, was actively involved in it but the peripheral family members were not present. Now it might be said that every single one of these plaintiffs could be expected to suffer grief and sorrow in some form but to have that grief and sorrow recognized and deemed worthy of compensation under the law as we have it in Sadati, each plaintiff would need to prove that the harm they experienced was serious enough and prolonged enough to constitute mental injury and each plaintiff would need to prove that that mental injury was reasonably foreseeable in a person of ordinary fortitude. These requirements by the way would be separate and apart from the requirements of the duty of care analysis which is not an issue tonight but which is also informed by concepts of proximity and foreseeability as well as by policy concerns increasing the hurdles that these plaintiffs would face. Now historically plaintiffs in Mr. Watts position have succeeded in bringing claims for nervous shock separate and apart from grief and sorrow and we have seen courts award them their damages by carving out grief and sorrow from the compensation awarded from the court. Courts have been relatively easily persuaded that a person who witnesses the death of a loved one is foreseeably at risk of suffering mental injury as a result and that tradition would not change if this honorable court holds the grief and sorrow remain non-compensable harms under the common law of negligence nor we argue would it change if the court were to render grief and sorrow compensable under the common law of negligence and that is where the problem lies for plaintiffs unlike plaintiffs like Mr. Watts. The same factors that have historically persuaded courts of the risk of mental injury to a plaintiff in Mr. Watts position will continue to operate if grief and sorrow are open to compensation under the common law of negligence and if our group of more peripheral family members were to come before court seeking a remedy for their suffering they would have a legal disadvantage in comparison to the plaintiff in Mr. Watts position because proximity and foreseeability would be that much harder for them to prove under the Sadati analysis. If this honorable court were to render grief and sorrow compensable under the common law of negligence plaintiffs in Mr. Watts position would be privileged compared to other classes of plaintiffs who could be other classes of plaintiffs could be expected to bring their claims that privilege would flow naturally from the concepts that structure the common law of negligence and that are inherent to it. So if this honorable court were to render grief and sorrow compensable under the common law of negligence in the hope of creating more fairness to plaintiffs the court would be giving with one hand but the practical application of the law would take a weight with the other. I'm not sure I quite follow your analysis. There's the two classes of plaintiffs the plaintiff that's in the room and the plaintiff that sits outside or at home waiting for the baby to come over and visit. Each of them suffer grief. Isn't it just as simple to do it as I think Madam Justice McLaughlin talked about in Mustafa where she says essentially the process of the application of the test in the tort will weed out the ones that are Mr. Mustafa who found a flaw in his water bottle. That's not something that should be compensated because it's so remote it's not that this fellow would have this problem because he saw a flaw in his water bottle. Isn't that the same argument that we're making that you're making here and that the people that are at home waiting for the baby to come versus Mr. Watson's in the room are going to have a different reaction because of proximity and proximity is part of the test. So why do we need to distinguish between grief and sorrow when we can just apply a proximity test as Madam Justice McLaughlin would have us do in Mustafa? My Lord, what I'm arguing is that what Madam Justice McLaughlin does in Mustafa and what you are suggesting now would be unfair to many of the plaintiffs who would wish to bring claims for grief and sorrow before the courts if this court were to hold that grief and sorrow is compensable under the common law of negligence because the proximity elements in the law because the foreseeability elements would make it extremely difficult for them to succeed. The plaintiffs who are already in a good position to succeed in claims for mental injury, plaintiffs like Mr. Watts who have very close proximity for whom it might be easier to say that the harm was foreseeable, they will continue to be the plaintiffs who succeed but those plaintiffs do not need grief and sorrow to be made compensable at law in order to succeed in their claims. So this court would be opening up ahead of compensation that would invite new plaintiffs to come to the court seeking remedy and would not predictably and consistently and reliably give them justice. But what we're left with in this case is that Mr. Watts who has suffered what appears to be mental injury as a result of grief and sorrow. I mean, he's just got a lot of grief and sorrow. And so why would we exclude him? Isn't it unfair to exclude him because it calls in this category of grief and sorrow when it could be something else that leads to the same result? And would he would get a result if he didn't call it grief and sorrow or call it nervous shock? My Lord, I can only come back to the point that I made earlier. Mr. Watts framed his claim as a novel kit claim asking the court to render a decision on the nature of grief and sorrow under the common law of negligence. In conclusion, my ladies and my Lord, the Supreme Court of Canada was right to dismiss Mr. Watts' appeal. Fairness to plaintiffs, fairness to defendants and fairness to society are intertwined in negligence law. The principles of distributive justice and retributive justice about which we have not heard very much tonight remind us that the personal rights of the plaintiff are not the only concerns at stake in a negligence claim. The common law of negligence bars compensation for grief and sorrow. And although this may seem unjust, the law should be capable of treating plaintiffs fairly and consistently before it invites them to come to court seeking a remedy. Moreover, when courts are not capable of predicting and weighing the consequences of changing the common law, fairness to society demands that they give the question over to those who can. Mr. Watts' appeal should be dismissed. Subject to questions from the bench, I have no further submissions. Thank you. Ms. McZorley, is there a rebuttal? I have no my lady, thank you. Ms. Jussette, rebuttal? No, my lady, thank you. Thank you, counsel. The decision of the court is reserved. Because I get to announce the winners of tonight's contest, I've asked my colleagues to kindly say a few words about our reflections on what we've had the privilege of hearing tonight. So, Justice Brothers, sure. My comments are generally to all four of you, you are all incredibly impressive and I'm glad I don't have to compete for a job with you people. Because you were very impressive. I mean, at this stage, to be able to do what you did tonight, if you go into a courtroom downtown, you will see some lawyers who've been at the bar for a while who aren't at your caliber. And I don't say that to disparage them, but to impress upon you how well you did tonight. And I think you should all be very proud of your performance. And you're just gonna build from here if litigation is something you want to do, which all of you should want to do. Yeah, I'm biased in that respect. But you should really take upon this experience and build on it and you'll do well. I have no doubt. So I hope to see you in a courtroom soon. Not being a judge, on the other hand, I hope not to see you in a courtroom soon. You know, I came to this with some expectations and the four of you exceeded them all. You did a terrific job. It was really inspiring and terrific. And you know, I know that questions we asked were trying to trip you up. We were trying to ask hard questions. We were trying to make you have to be off kilter and a little off balance to try to figure out whether or not you had a solid argument and you all did really well. There were moments where I thought you were thinking, oh, I'm not answering his question, but you were. And you did a really great job. So I'm really proud of all of you. I would just say one more thing that that's something I told the four of you upstairs, but I want the rest of the crowd to hear this, is that I spoke to a woman who did this 62 years ago and she was the first woman to do it. I spoke to her last week and she still remembers this as a very prominent event in her legal world. And so I hope you will remember this 60 years from now and think, wow, this was a terrific experience and you really all did very well. So thank you. Thank you. The only other comment that I will make before we get to the really good stuff is that I have to comment on your factims and of course they are appellate style factims. And I get to read those every day of the week and I was I think taking my fourth or fifth review through them this afternoon and I was writing good in the margin of one of them and my J.A., my assistant came in and she said, what are you reading? And I said, this is good stuff. And she goes, what appeal is that on? And I said, holy crap, I wish it wasn't appeal that I'm hearing. This is the mooters from the Smith's Shield and their factims are fantastic. So really, I know a good factim when I see it and I know a bad one when I see it and they were not bad factims. So the four of you really should be proud of yourselves. So without further ado, I am very pleased to announce the runners up, the winners of the Leonard A. Kitts Prize in Advocacy and this year's winners are Emma Doucette and Jeremy Ryan. The Smith Shield winners, the A.S. Petillo Prize in Advocacy for 2018 is awarded to Aaron McSorley and Konstantina Northrup. Congratulations. There's gonna be some pictures taken and while we do that, please come up to the third floor. There's a reception that will be held there and there's lots of food, lots of drinks so you're all welcome to go up there and wait for our winners to take about five or 10 minutes.