Andrew Kalamut

The appellant, Bank of Montreal, sought to appeal an order lifting a stay of proceedings in a receivership, which allowed the respondent to terminate a project agreement.

The appellant argued it had an automatic right of appeal under s. 193(c) of the Bankruptcy and Insolvency Act, or alternatively, sought leave to appeal under s. 193(e).

The Court of Appeal held that the order lifting the stay was procedural, did not directly bring into play the value of the debtor's property, and did not directly result in a loss, meaning there was no automatic right of appeal.

The court also denied leave to appeal, finding the proposed appeal was not prima facie meritorious, did not raise issues of general importance, and would unduly hinder the insolvency proceedings.

The case involved three interrelated motions within the receivership of ProjectCo, the entity responsible for the St. Michael’s Hospital redevelopment.

Unity Health Toronto sought to lift a stay of proceedings to terminate the Project Agreement due to ProjectCo's defaults.

The Bank of Montreal, as Administrative Agent for the Lenders, sought an order to assign ProjectCo's rights to enforce a Tower Interim Completion (TIC) payment and to dismiss Unity's motion.

Unity also sought to dismiss the Lenders' TIC application for lack of standing.

The court granted Unity's motion to lift the stay and to dismiss the Lenders' TIC application, and dismissed the Lenders' assignment motion.

The court found Unity would be materially prejudiced by the stay's continuation, while the Lenders' prejudice was contractually prescribed.

The Lenders lacked standing for the TIC application, and no legal or equitable assignment of ProjectCo's rights to enforce the TIC payment existed.

The defendants, Unity Health, brought a motion under Rule 21.01(1)(a) to strike paragraphs of the plaintiff Noram's Amended Statement of Claim, arguing that new claims for conspiracy and breach of fiduciary duty were statute-barred by the Limitations Act.

Noram had added these claims as alternative grounds for relief to an existing unjust enrichment claim.

The court dismissed Unity Health's motion, finding it was not "plain and obvious" that the Limitations Act applied to amendments made as of right to an existing proceeding, particularly given the unsettled nature of the law on this specific point of statutory interpretation.

The court preserved Unity Health's right to raise the limitations defence at a later stage.

The plaintiffs brought a medical negligence action against various doctors, nurses, and a hospital following a surgery to treat severe nerve damage sustained in a snowmobile accident.

The defendants moved for summary judgment to dismiss the action.

The plaintiffs failed to provide any admissible expert evidence to establish a breach of the standard of care or causation, whereas the defendants provided uncontradicted expert evidence supporting the care provided.

The court granted the summary judgment motions and dismissed the action against the moving defendants, finding no genuine issue requiring a trial.

In two related actions arising from a construction dispute, the Concord Parties moved to stay the Varone Parties' breach of trust claims under the Construction Lien Act upon payment into court of the admitted claim amount.

The Varone Parties brought a cross-motion to withhold disclosure and production of certain documents until a threshold issue regarding the nature of the services agreement was determined.

The court granted the stay, finding that the trust claims would be moot once fully secured by the payment into court, and that a stay would result in material efficiencies without causing injustice.

The court dismissed the discovery motion, concluding that the threshold issue was not clearly severable from the other claims, including fraud and conspiracy, and that the Varone Parties would not suffer serious prejudice from full disclosure.

Zurich, the surety for the insolvent general contractor Bondfield, brought a motion to intervene as a party in a construction lien reference.

Zurich sought to participate in a vetting committee for the distribution of the owner's holdback among the timely lien claimants.

The court granted the motion, finding that Zurich had a direct interest in the holdback because it had made significant holdback advances to the major electrical and mechanical trades and had taken partial assignments of their lien rights.

The court ordered the timely claimants to pay Zurich's costs of $30,000.

The appellants appealed the dismissal of their action for delay by a motion judge, who had also dismissed their motion to extend the timetable.

The action, commenced in 2014, faced significant delays, primarily due to the appellants' failure to obtain written consent from the City of Ottawa (to whom the action was subrogated under the WSIA) for several years.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the inordinate delay and did not rebut the presumption of prejudice to the respondents, given the lack of progress in the litigation.

The defendant plastic surgeon brought a motion for summary judgment to dismiss a medical negligence and lack of informed consent action arising from an abdominoplasty.

The plaintiff alleged the defendant failed to meet the standard of care and failed to disclose the risk of skin necrosis.

The court granted the defendant's motion, finding no genuine issue for trial as the plaintiff failed to provide expert evidence establishing a breach of the standard of care or causation.

Furthermore, the court used its enhanced fact-finding powers to conclude that the material risks were disclosed and that a reasonable person in the plaintiff's position would have proceeded with the surgery.

The defendants in a medical malpractice action brought a motion for the production of documents from the plaintiffs' lawyer's file prior to cross-examinations on affidavits.

The affidavits were filed in support of the plaintiffs' pending motion to extend the time to set the action down for trial.

The defendants argued the plaintiffs waived privilege by referring to the lawyer's steps to advance the litigation.

The court found a limited waiver of litigation privilege regarding the fact and timing of the lawyer's communications with medical experts, but held that the plaintiffs were not required to produce the corroborating documents prior to the cross-examination.

The motion was largely dismissed, with the plaintiffs ordered only to have redacted corroborating documents available at the cross-examination.

The plaintiffs brought a motion to amend their statement of claim to include a claim for battery and punitive damages against the defendant plastic surgeon.

The court found that the proposed amendment to include battery introduced new material facts and a new cause of action that was statute-barred by the Limitations Act, 2002, due to inordinate delay.

However, the court allowed the amendment to include a claim for punitive damages, finding no prejudice.

A plaintiff who sustained a wrist injury in July 2007 attended an urgent care clinic where an x-ray was ordered.

The radiologist's report recommended a follow-up x-ray, but this recommendation was not communicated to the plaintiff.

She subsequently required two surgeries.

The plaintiff commenced an action against the clinic and the treating physician in May 2012.

By August 2013, the plaintiff became aware that a second clinic physician (not the named defendant) had reviewed the x-ray report and failed to advise her of the follow-up recommendation.

In January 2017, the plaintiff moved to add this second physician as a defendant.

The motion judge granted the motion, finding the claim was not statute-barred.

The appellants appealed, arguing the plaintiff failed to exercise reasonable diligence in identifying the second physician.

The Court of Appeal allowed the appeal, holding that by August 29, 2013, the plaintiff knew all material facts except the defendant's name and was obliged to exercise reasonable diligence to obtain it within the two-year limitation period.

The plaintiff's failure to make inquiries for one year constituted a failure to exercise reasonable diligence, rendering the claim statute-barred.

The plaintiffs brought an action for medical negligence against Dr. Ibrahim following a Tension-Free Vaginal Tape (TVT) surgery performed on Ms. O'Neill-Renouf.

Immediately after the surgery, Ms. O'Neill-Renouf experienced severe pain in her right thigh, which was later diagnosed as an injury to her right obturator nerve, resulting in permanent pain and physical limitations.

The plaintiffs alleged the injury was caused by incorrect needle placement during the surgery, constituting a breach of the standard of care.

The defendant argued the injury was due to edema (swelling) tracking naturally from the surgical site.

The court found the plaintiff's theory to be the only reasonable explanation, concluding that Dr. Ibrahim was liable for the damages due to a breach of the standard of care.

The court fixed nominal costs against the self-represented plaintiff following successful summary judgment motions by the defendants in a medical negligence action.

Despite the plaintiff's serious health issues and lack of means, the court found that the plaintiff's failure to secure expert reports and refusal to follow former counsel's advice necessitated the summary judgment motions, entitling the defendants to costs.

However, considering the plaintiff's inability to pay and the non-frivolous nature of the initial lawsuit, a nominal award was deemed appropriate.

This medical negligence action, commenced in 2011, involved allegations of negligent treatment by the plaintiff against the defendant hospital and physicians.

The action had been administratively dismissed twice and case-managed since 2018 due to the plaintiff's failure to deliver expert reports.

Despite multiple court orders and extensions, the self-represented plaintiff failed to provide expert evidence on standard of care and causation, which is required to establish negligence.

The defendants brought motions for summary judgment, which the court granted, dismissing the action due to the absence of a genuine issue for trial without expert opinions supporting the plaintiff's claims.

The appellant appealed the motion judge's order striking her statement of claim without leave to amend on two grounds: that the action was commenced beyond the applicable limitation period and that it disclosed no reasonable cause of action for civil fraud.

The appellant sought damages for fraudulent billing submissions to OHIP and alleged inability to obtain travel insurance.

The Court of Appeal dismissed the appeal, finding that the appellant's own pleadings admitted discovery of the alleged fraud in 2009, which triggered the two-year limitation period under the Limitations Act, 2002.

The court also addressed procedural issues regarding the improper use of rule 21.01(1)(a) to advance a limitations defence and the inappropriate reliance on rule 21.01(1)(b) after the respondents had filed a statement of defence joining issue on the material facts.

The plaintiffs, property developers, brought a motion for leave to amend their statement of claim to add three new defendants and plead conspiracy and oppression regarding allegedly inflated billings for deficiency work.

The proposed defendants opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002.

The court granted the motion, finding the plaintiffs had exercised reasonable diligence in investigating the billing discrepancies and raised a triable issue regarding discoverability.

The court held that the proposed amendments disclosed a reasonable cause of action and would not cause undue prejudice.

The defendants brought a motion to strike the plaintiff's statement of claim for civil fraud regarding alleged improper OHIP billing.

The court found that the plaintiff discovered the alleged fraud in 2009 but did not commence the action until 2017, well beyond the two-year limitation period.

Furthermore, the claim failed to disclose a reasonable cause of action for fraud because the plaintiff did not act in reliance on any representations made by the defendants.

The motion to strike was granted without leave to amend, and the action was dismissed.

The Moving Defendants (original defendants and proposed individual defendants) brought a motion seeking answers to refused questions from plaintiffs' witnesses and directions for the examination of a Vancouver-based witness, Mr. Hui, insisting on an in-person examination in Toronto.

The court ordered Mr. Hui's examination to proceed by video conference, citing proportionality and the objectives of the Rules of Civil Procedure.

Regarding the refused questions, the court ordered the production of complete contracts referenced by the plaintiffs but denied requests for general contractor contracts, KPMG's full file, and particulars of services from other contractors, deeming them disproportionate or irrelevant to the narrow issues of the motion to amend.

Costs were awarded to the plaintiffs, fixed at $4,000.00.

The plaintiffs brought a motion to enforce a settlement agreement in a medical malpractice action.

The settlement was conditional on the defendants obtaining releases in a form acceptable to them.

A dispute arose regarding the scope of the release for the minor plaintiff, specifically concerning an indemnity clause for future claims by the minor after reaching majority.

The court found that the conditional nature of the settlement meant it was at an end when the parties could not agree on the form of the release.

Consequently, the plaintiffs' motion to enforce the settlement was dismissed.

The plaintiffs brought a medical malpractice action against a urologist, alleging negligent performance of a trans-urethral resection of the prostate (TURP) that resulted in total and continuous urinary incontinence.

The court dismissed the action, finding that the plaintiffs failed to establish, on a balance of probabilities, that the urologist breached the standard of care or that the alleged breach caused the incontinence.

The court concluded that the incontinence was a known complication, likely attributable to pre-existing conditions of an overactive bladder and a weakened external sphincter, rather than surgical negligence.