Andrew E. Franklin

The plaintiff sued her dentist for negligence and lack of informed consent following a wisdom tooth extraction that led to a severe facial space infection.

The plaintiff alleged the dentist failed to meet the standard of care by not taking updated X-rays, injecting local anesthetic near the infection, not referring her to a specialist, and not extracting an opposing tooth.

The court found that the plaintiff provided informed consent and that the dentist met the standard of care.

The court accepted expert evidence that the infection was brewing prior to the extraction and that the extraction likely mitigated its course.

The claim was dismissed.

The plaintiff brought a motion to set aside a 2017 order dismissing his action for delay, arguing he failed to appear due to accident, mistake, or insufficient notice, largely attributable to his prior counsel's failures.

The court considered the "forthwith" requirement for bringing such a motion, the lengthy delay and its reasons, the presence or absence of prejudice to the defendant, and the underlying merits of the plaintiff's case.

The court found that the plaintiff's previous lawyers were primarily responsible for the delay, that the defendant did not suffer actual, non-compensable prejudice, and that the plaintiff had a meritorious case.

The motion was granted, the dismissal order set aside, and costs were awarded to the plaintiff.

Following the settlement of two personal injury actions arising from a motor vehicle accident, the parties could not agree on the quantum of costs and pre-judgment interest (PJI).

The plaintiffs sought over $163,000 in costs, while the defendants argued for a lower amount based on the settlement value of $375,000.

The court rejected the plaintiffs' extensive bill of costs, finding it disproportionate and offensive to the principle of indemnity given likely contingency fee arrangements.

The court fixed costs at $84,750 (inclusive of HST), representing 20% of the net recovery, and awarded $14,354.75 in PJI, representing half of the plaintiffs' claim, due to the impossibility of apportioning the all-inclusive settlement funds.

The plaintiff sought damages for injuries from a motor vehicle collision.

Liability was admitted, and a jury awarded general damages.

The defendant moved to dismiss the general damages award, arguing the plaintiff failed to establish that his injuries exceeded the statutory threshold for permanent, serious impairment under the Insurance Act.

The court assessed the plaintiff's credibility, finding significant inconsistencies in his testimony and reporting of pre-accident history and employment.

The court also scrutinized the expert evidence, particularly rejecting the plaintiff's psychiatric expert for acting as an advocate.

Concluding that the plaintiff failed to meet the evidentiary requirements to establish a permanent, serious impairment of an important physical, mental, or psychological function, the court granted the defendant's motion and dismissed the plaintiff's claim for general damages.

The defendants sought leave to appeal a costs order made by Corkery J. following a settlement.

The underlying issue concerned whether costs and disbursements ran to the date of service of the settlement offer or the date of acceptance, impacting costs accumulated over a two-month period.

The court dismissed the application for leave to appeal, finding that the defendants did not meet the grounds under Rule 62.02 of the Rules of Civil Procedure, as there were no conflicting decisions on principles of costs interpretation and no good reason to doubt the correctness of the original order.

The defendant moved for summary judgment to dismiss the plaintiff's dental malpractice claim.

The court found genuine issues for trial regarding the standard of care and causation, citing conflicting expert opinions and factual disputes, particularly concerning the defendant's discovery evidence.

The motion for summary judgment was dismissed, and costs were awarded to the plaintiff.

The parties settled a personal injury action on the first day of trial after the plaintiff accepted the defendants' offer to settle for $150,000 plus costs to be agreed or assessed.

The defendants brought a motion arguing the plaintiff was only entitled to costs up to the date the offer was served, relying on previous case law.

The court rejected this argument, finding that the plain language of the offer and the Rules of Civil Procedure entitled the plaintiff to partial indemnity costs up to the date the offer was accepted.

The court referred the assessment of costs to an assessment officer and allowed the plaintiff's expert disbursements.