A.J. Billes

A negligence action arising from a fall suffered by an 80-year-old patient hospitalized at London Health Sciences Centre.

The patient was admitted with confusion secondary to a urinary tract infection and subsequently fell on August 15, 2015, resulting in discovery of an acute-on-chronic subdural hematoma requiring neurosurgery.

The patient never recovered her prior cognitive function and died in April 2021.

The court found that the defendant nurses breached the standard of care by failing to complete a Fall Risk Assessment and Intervention Flowsheet and failing to implement a documented toileting routine responsive to the patient's frequent urination needs.

However, the court dismissed the action because the plaintiffs failed to prove on a balance of probabilities that the fall caused the acute portion of the subdural hematoma, and failed to prove that the acute bleed changed the patient's treatment or clinical outcomes.

The plaintiff, Vida Mansori, brought a claim under the Occupiers' Liability Act after slipping and falling in a public washroom at a condominium building managed by the defendants.

The plaintiff suffered significant injuries.

The court considered expert evidence on the slip resistance of the washroom tiles and the defendants' maintenance schedule.

The court found that the washroom floor was not inherently unsafe and that the defendants had taken reasonable steps to ensure safety, including regular cleaning and security checks.

The court concluded that the plaintiff failed to prove negligence on the part of the defendants, dismissing the action.

Damages were provisionally assessed at $100,000 had liability been found.

This endorsement resolves two costs issues.

First, the plaintiffs' successful motion to amend their claim to $200,000, bringing it within the simplified procedure due to the death of a plaintiff.

The court awarded the plaintiffs $5,000 in partial indemnity costs for this motion, finding it was not an "indulgence" and that the defendants' opposition was unsuccessful.

Second, the defendants' claim for costs under Rule 76.13, which applies when a claim is amended to simplified procedure.

The court found the plaintiffs' delay in bringing the amendment relevant to these costs.

While acknowledging some costs were unnecessarily incurred by the defendants in preparing for an ordinary trial, the court significantly reduced the defendants' claimed amount for witness preparation, deeming it excessive and disproportionate.

Ultimately, the court awarded the defendants $8,000 under Rule 76.13, resulting in a net award of $3,000 to the defendants, payable within 90 days.

The plaintiffs brought a motion to amend their Statement of Claim to reduce the damages claimed from $950,000 to $200,000 and to continue the action under the simplified procedure, following the death of the primary plaintiff which eliminated the claim for future care costs.

Because the trial record had already been filed, leave was required under Rule 48.04(1).

The court granted leave, finding the plaintiff's death constituted a substantial and unexpected change of circumstances.

The court also granted the amendment under Rule 26.01, finding it was in the interests of justice to proceed with a 5-day simplified trial and that the defendants would suffer no prejudice that could not be compensated by costs or an adjournment.

Following the dismissal of the plaintiff's product liability action for failing to participate at trial, the successful defendant sought costs of $139,739.85 plus disbursements on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that the defendant's offers to settle did not trigger Rule 49 consequences and the plaintiff's conduct did not warrant an elevated scale.

Noting that the defendant was represented by in-house counsel who did not docket time, and that the amount claimed was excessive with duplication of effort, the court fixed costs on a partial indemnity scale at $36,000 plus HST and $7,752.05 in disbursements.

The defendant brought a motion to dismiss the plaintiff's action after the plaintiff, who was self-represented, failed to call any evidence during a ten-day judge-alone trial.

The plaintiff had repeatedly refused to participate in the trial following the denial of his third motion to adjourn.

The court dismissed the action under Rule 52.01(2)(c) of the Rules of Civil Procedure, emphasizing the court's inherent jurisdiction to control its process and ensure fairness to all litigants, particularly when a party deliberately circumvents court orders and delays proceedings.

Following the dismissal of the appellant's appeal, the successful respondent sought costs of $8,665.50.

The appellant did not provide any costs submissions.

The court fixed the respondent's costs at $5,000 inclusive of disbursements and taxes, payable by the appellant.

The appellant appealed a Small Claims Court decision dismissing her dental malpractice action against the respondent prosthodontist.

The appellant alleged that the respondent negligently replaced a dental crown and failed to obtain informed consent.

The trial judge dismissed the action because the appellant's own expert did not opine that the respondent's work fell below the standard of care, while the respondent's expert confirmed the treatment met the standard.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the appellant failed to prove a breach of the standard of care or a lack of informed consent without supporting expert evidence.