A. Lewis

The court issued a scheduling endorsement setting a motion date for April 5, 2022.

The responding party's counsel advised that preparation was hampered because the client was incarcerated in Hong Kong.

The court formally requested the Commissioner of Correctional Services in Hong Kong to grant the solicitors enhanced access to their client to allow meaningful preparation for the motion.

The respondents brought a motion for security for costs in an application where the applicant sought the appointment of an arbitrator pursuant to a co-ownership agreement.

The respondents argued that the applicant was a nominal corporation with insufficient assets in Ontario.

The court found that the respondents met the initial onus under Rule 56.01(1)(d) and that the applicant failed to rebut it.

Applying a holistic approach, the court ordered the applicant to post security for costs in the amount of $15,000.

The defendant brought a motion for security for costs against the plaintiff, a foreign corporation suing for an unpaid invoice.

The plaintiff had previously obtained summary judgment, which was set aside on appeal solely because the application of the International Sales Conventions Act had not been considered.

The court dismissed the motion, finding it would be unjust to order security for costs given the plaintiff's prior success on the merits and the late stage of the proceeding.

The plaintiff underwent emergency surgery performed by the defendant thoracic surgeon to repair a paraesophageal hiatus hernia.

During the operation, a bougie became stuck in the plaintiff's esophagus, and its removal caused a de-gloving injury to the esophagus.

Several weeks later, the plaintiff suffered a severe stroke.

The plaintiffs sued the surgeon for medical malpractice, alleging negligence in the performance of the surgery and that the resulting esophageal injury caused the stroke.

The court dismissed the action, finding that the surgeon met the standard of care and that the stroke was cardioembolic, caused by atrial fibrillation, and unrelated to the esophageal injury.

The plaintiffs in a medical malpractice action sought leave to amend their statement of claim to substitute two identified physicians for previously named fictitious “Doe” defendants after the expiry of the limitation period.

The court considered whether the substitution constituted correction of a misnomer under Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002.

Applying the “litigation finger” test, the court held the pleadings sufficiently identified the intended physicians through details of the hospital, department, treatment period, and alleged conduct.

The court found no material prejudice arising from the delay and determined that the plaintiffs had exercised reasonable diligence in attempting to identify the physicians through medical records and inquiries.

Leave to amend and substitute the physicians for the Doe defendants was granted.