Amani Oakley

Following a successful partial summary judgment motion in a medical malpractice action, the plaintiffs sought costs of $169,022 on a substantial indemnity basis.

The court rejected the request for substantial indemnity, finding no bad faith by the defendant physician.

However, noting the defendant's refusal to concede uncontroverted medical evidence, the court found a higher than normal partial indemnity award was justified.

Costs were fixed at $60,000 all-inclusive.

In a medical malpractice action arising from a three-year delay in diagnosing and treating an acoustic neuroma, the moving parties sought partial summary judgment identifying the specific injuries caused by the admitted negligence and dismissing the defence of contributory negligence.

The court held that the expert evidence on causation and the listed injuries was largely uncontroverted and that the injuries could be summarily established without a trial.

Applying the reasonable patient standard, the court also found no evidentiary basis for the allegation that the patient unreasonably missed appointments or delayed follow-up in a manner contributing to her injuries.

Partial summary judgment was granted listing the injuries and dismissing contributory negligence.

In a medical negligence action arising from alleged negligent chiropractic treatment, the plaintiffs moved to strike portions of the statement of defence referring to a professional complaint made to the College of Chiropractors, sought a “lesser and better” affidavit of documents excluding the complaint materials, and requested that the defendant be examined for discovery in Toronto.

The court interpreted s. 36(3) of the Regulated Health Professions Act, 1991 as barring the admissibility of documents prepared for regulatory proceedings but not the pleading of facts such as the timing of a complaint.

The court held that the defence’s reference to the timing of the plaintiff’s complaint did not plead a prohibited “report, document or thing” and could remain.

The court further declined to order a revised affidavit of documents, holding that admissibility issues and use of prior inconsistent statements should be determined by the trial judge.

The request to compel discovery in Toronto was also dismissed, with the court criticizing the motion as strategic and improper.

The defendant physicians brought a motion for summary judgment arguing that a medical negligence claim arising from treatment that preceded a patient’s death from necrotizing fasciitis was statute-barred under the one‑year limitation period in s. 89 of the Regulated Health Professions Act.

The estate argued that the limitation period did not begin to run until a medical expert later reviewed the records and identified specific errors in treatment.

The court held that discoverability required knowledge of material facts establishing potential negligence, which in complex medical cases may require expert interpretation of medical records.

Because the plaintiff only obtained those material facts after receiving an expert analysis of the records, the action was commenced within the applicable limitation period.

The motion for summary judgment was dismissed.

The plaintiffs appealed a summary judgment dismissing their medical malpractice action against two paramedics and an ambulance service.

The motion judge had found that while the standard of care was a genuine issue for trial, causation was not, relying on the defendants' expert opinion that the patient's survival rate was only 2.4 percent.

The Court of Appeal allowed the appeal, finding that the motion judge erred in relying on the defendants' expert opinion because it did not address the plaintiffs' theory of the case, which posited that the patient would have survived had she been transported to the hospital immediately while she still had a heartbeat.

The Court concluded that both standard of care and causation were genuine issues requiring a trial.

In a chiropractic malpractice action alleging negligent treatment causing serious injury, the plaintiffs brought a motion seeking production of raw data underlying a population-based study relied upon by a defence expert and extensive disclosure relating to another defence medical expert.

The court held that the underlying research data was not in the possession, power, or control of the defendants or their expert and could only be obtained through a proper third-party motion under the Rules of Civil Procedure.

Limited procedural directions were issued requiring the defendants to ask the expert to use best efforts to obtain the data and to confirm the existence of a video recording from the defence medical examination.

Most of the requested relief, including production of the expert’s hard drive and extensive materials from the expert’s curriculum vitae, was dismissed.

Following the dismissal of the applicant's application for judicial review of an Ontario Human Rights Commission decision, the court determined the issue of costs.

The respondents sought costs, while the applicant argued that a costs award would impose a significant burden.

Applying the principles of fairness and reasonableness, the court fixed costs at $3,500 for the Commission and $3,500 for the Hospital and doctor, payable by the applicant.

The appellant, who was wrongfully convicted of sexual assault and later had his conviction quashed after fresh DNA evidence was admitted, sued his trial lawyer for negligence.

The motion judge granted summary judgment dismissing the action, finding no 'egregious errors' and no evidence of causation.

The Court of Appeal allowed the appeal, holding that the proper standard of care for a lawyer conducting litigation is reasonableness, not 'egregious error'.

The Court also found that the 'but for' causation analysis raised a genuine issue for trial regarding whether the appellant would have been acquitted had the lawyer obtained the DNA evidence and properly conducted the trial.

The respondent's cross-appeal alleging abuse of process was dismissed.

The applicant sought judicial review of the Ontario Human Rights Commission's decision not to deal with her discrimination complaint against her former employer.

The Commission had exercised its discretion under section 34 of the Human Rights Code to dismiss the complaint because it was filed more than six months after the events giving rise to it, and the delay was not incurred in good faith.

The Divisional Court dismissed the application, finding no breach of procedural fairness and concluding that the Commission's exercise of discretion was not patently unreasonable.

The plaintiffs brought an action against the provincial government alleging that a child's death in a hospital emergency department was caused by government funding cuts and restructuring decisions.

The plaintiffs claimed negligence, abuse of public office, and breach of fiduciary duty.

The government appealed a motions judge's refusal to strike these claims.

The Divisional Court allowed the appeal and struck the statement of claim, finding that the government owed no private law duty of care to the plaintiffs, the funding decisions were protected policy decisions, and the elements of abuse of public office and breach of fiduciary duty were not properly pleaded.

The applicant sought judicial review of the Ontario Human Rights Commission's decision to decline to deal with her complaint of discrimination based on marital status and age.

The Commission had found the complaint to be vexatious and out of time under section 34 of the Human Rights Code.

The Divisional Court held that the Commission was entitled to rely on the definition of 'vexatious' from Black's Law Dictionary and that its decision was not patently unreasonable.

The application for judicial review was dismissed.

The Crown sought leave to appeal an interlocutory order that refused to strike out portions of the plaintiffs' statement of claim.

The plaintiffs alleged that the infant plaintiff's death in a hospital was caused by overcrowded conditions resulting from the funding and restructuring decisions of the former Premier and Health Minister.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision regarding the claims of negligence and abuse of public office.

The court also found that the motion judge's approach conflicted with Supreme Court of Canada jurisprudence on the duty of care owed by public authorities, and that the issues raised were of significant public importance.

The applicant sought judicial review of a coroner's decision denying him standing at an ongoing inquest.

The coroner found the applicant did not meet the statutory requirements for standing under either the public law or private law tests.

The Divisional Court dismissed the application, holding that the coroner's decision was entitled to curial deference and was not unreasonable.

The court emphasized the need to avoid interrupting the ongoing statutory hearing and found no serious error in principle that would justify interference.

The grievor, a sergeant with the Ontario Governments Protective Service, filed a working conditions grievance after the employer reduced her scheduled rest days from four to one per 56-day rotation.

She subsequently amended her grievance to allege harassment and reprisal by her supervisors for filing the initial complaint.

The Public Service Grievance Board found that while the employer had the management right to alter the work schedule to provide an unencumbered lunch break, it failed to provide clear notice of this change until December 14, 1998, entitling the grievor to compensation for lost lieu days up to that date.

Furthermore, the Board upheld the harassment grievance, finding that the employer's actions, including threats of privatization and an unjustified negative performance evaluation, constituted a pattern of reprisal intended to dissuade the grievor from exercising her rights.

The Board ordered the employer to cease and desist all harassment and awarded the grievor two-thirds of her costs on a solicitor-client basis due to exceptional circumstances.