Alex Wolfe

Following a successful appeal in which the appellants had the summary judgment motion dismissed (2026 ONCA 121), the court addressed costs of the motion below.

The appellants sought substantial indemnity costs of $96,158.17 based on two pre-hearing offers to settle, or alternatively partial indemnity costs of $66,575.44.

The court found neither offer met the criteria under rule 49.10(1) because both expired before the motion hearing, and declined substantial indemnity costs on a discretionary basis.

The court reduced the fees to $40,000 plus HST on a partial indemnity basis, finding the associates' hours excessive and factoring in the appellants' failure to raise the partial summary judgment issue at scheduling.

Costs of $51,600 inclusive of disbursements and HST were awarded with post-judgment interest from the date of the motion decision.

The appellants sued the City of Toronto after one of them fractured her ankle stepping into a hole in a ditch within the municipal road allowance on a road with no sidewalks.

The City obtained partial summary judgment on the basis of the statutory bar in s. 42(4)(b) of the City of Toronto Act, 2006, pertaining to untraveled portions of a highway.

The Court of Appeal allowed the appeal, finding that the motion judge erred by proceeding to decide the partial summary judgment motion despite his own conclusion, applying the Malik v. Attia factors, that the case was not appropriate for partial summary judgment.

The court held that once the motion judge found the Malik factors weighed against partial summary judgment, he ought to have dismissed the motion.

The cross-appeal was dismissed as moot.

A medical malpractice action arising from the failure of three emergency physicians to diagnose previable, prelabour, preterm rupture of membranes (pPPROM) at 17 weeks gestation and to refer the plaintiff to an obstetrician.

The plaintiff presented to three different emergency departments over four days with a "gush of fluid" and other symptoms consistent with ruptured membranes.

All three physicians diagnosed threatened miscarriage or second trimester bleeding instead.

The failure to diagnose and refer resulted in a delay of approximately one day before the plaintiff reached a tertiary hospital.

During that delay, the plaintiff developed septic shock, leading to amputation of her left leg below the knee, partial amputation of her right foot, kidney failure requiring transplant, stroke, compromised right arm function, and seizures.

The trial judge found that all three defendants breached the standard of care by failing to diagnose the rupture of membranes and failing to immediately refer to an obstetrician.

However, only the first defendant (Dr. Cavanagh) was found liable for damages, as the evidence established that if the plaintiff had been referred on May 4, she would have been seen by an obstetrician, counselled regarding the grave risks, and would have elected to terminate the pregnancy.

Antibiotics and termination by May 5 would have prevented the septic shock and resulting injuries.

The subsequent physicians' breaches occurred too late to prevent the harm.

The City of Toronto sought partial summary judgment to dismiss the action against it, relying on section 42(4)(b) of the City of Toronto Act, which bars actions for damages caused by the condition of an "untravelled portion of a highway." The court found that the area where the plaintiff was injured was not intended for ordinary or normal use, nor commonly or additionally used by the public, and therefore fell within the statutory bar.

The action against the City of Toronto was dismissed, and costs were awarded to the City.

The court considered a motion by the defendants for production of video and audio recordings from the plaintiffs’ in-home camera system in a medical malpractice action.

The court found that while such recordings may be relevant to the issues in dispute, the plaintiffs’ privacy interests in their home are paramount and outweigh the need for production.

The motion for production was dismissed.

The appellants sought to appeal a Superior Court order refusing a sealing order, made in the context of a disability settlement approval.

The preliminary issue for the Court of Appeal was to determine if the order refusing the sealing order was a final or interlocutory order for jurisdictional purposes.

The Court found that the order, along with other concurrent orders dismissing claims, constituted a final disposition of the proceeding, thus making it a final order properly appealable to the Court of Appeal.

The plaintiffs brought a motion for court approval of a $14,000,000 settlement in a medical negligence action involving a minor who suffered catastrophic brain damage.

The court approved the settlement, the allocation of damages, and the proposed contingency fees for plaintiffs' counsel, finding them fair and reasonable given the significant risks and complexity of the litigation.

However, the court dismissed the plaintiffs' request for a sealing order, holding that it was contrary to the open court principle and that no compelling interest justified sealing the materials.