Andrew Lundy

This five-judge appeal reconsidered the common law governing non-disclosure of partial settlement agreements in multi-party civil litigation.

The court held that the prior rule mandating an automatic finding of abuse of process and an automatic stay, without proof of prejudice or regard to proportionality, was wrongly decided and should be overruled.

The proper approach requires a contextual and discretionary abuse of process analysis focused on unfairness, prejudice, oppression, harm to the administration of justice, and a proportionate remedy, with r. 49.14 of the Rules of Civil Procedure reinforcing that framework.

Applying that approach, the court allowed two appeals and remitted those matters, while dismissing two others where the record was sufficient to determine the result.

The appellants appealed the dismissal of their motion for leave to amend their dental malpractice claim.

The motion judge found the proposed amendments constituted new, statute-barred claims, causing non-compensable prejudice to the respondent.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the amendments created a new claim and that the finding of actual prejudice due to the expired limitation period was entitled to deference.

The appeal was dismissed with costs.

Following a successful motion by the defendant law firm for a declaration that lawyer-client privilege had been waived by co-defendants in a proposed class action, the court determined the costs of the motion.

The opposing defendants argued for no costs or a reduced amount, citing the novel circumstances and section 31 of the Class Proceedings Act.

The court rejected these arguments, finding the motion was of considerable strategic importance and not a test case justifying a departure from normal costs rules.

Costs were fixed at $16,000 all-inclusive, split equally between the two groups of opposing defendants.

In a dental malpractice action, the plaintiffs sought to have two experts accompany their counsel at the examination for discovery of the defendant dentist, and requested a ruling that these experts could still testify at trial.

The court permitted the plaintiffs' counsel to be accompanied by a specialist expert, but not a general dentist, to assist with highly technical subject matter.

However, the court declined to rule that the specialist could still testify at trial, warning that acting as part of the advocacy team at discovery would likely compromise the expert's objectivity and non-partisanship required for trial testimony.

In a proposed class action concerning a failed condominium development, the plaintiff alleged professional negligence against Blaney McMurtry LLP, a law firm that prepared investment instruments.

Blaney McMurtry LLP brought a motion for a declaration that solicitor-client privilege with its co-defendants had been waived.

The court found that several co-defendants, including those who had settled with the plaintiff and provided an affidavit criticizing the law firm's work, had impliedly waived privilege.

This waiver occurred because they made the quality of legal advice a material issue in the litigation, thereby making it unfair and inconsistent to maintain privilege.

The motion for a declaration of waiver was granted.

The court fixed costs following a successful motion by Southside Construction and the Architects to stay the City of Windsor's claims due to abuse of process.

The City had failed to immediately disclose complete terms of settlement agreements with third-party subtrades, which fundamentally altered the litigation landscape.

The court found the City's conduct egregious and awarded substantial indemnity costs to Southside and the Architects, emphasizing that such an elevated scale was appropriate to express judicial disapproval and deter similar future behaviour, though not egregious enough for full indemnity costs.

The City of Windsor entered into confidential settlement agreements with eight third-party subcontractors, which included indemnities and assumption of liabilities, fundamentally altering the litigation landscape.

The City failed to immediately and fully disclose these agreements to the general contractor (Southside Construction) and the architects, despite multiple opportunities and court orders.

The court found this non-disclosure constituted an abuse of process, as it created a circularity in claims and prejudiced the non-settling parties by forcing them to incur significant costs to uncover the true nature of the agreements.

In a dental negligence action, the defendant objected to the plaintiffs' expert report from Dr. Yanney, arguing it contained opinions on surgeries performed in 1991, which were not pleaded as negligent in the Statement of Claim.

The court agreed that the expert cannot offer opinions on matters not before the court for adjudication.

The plaintiffs were directed to obtain a new report from Dr. Yanney limited to the defendant's treatment from 2012 onwards.

This class action concerned a health hazard at a dental practice due to improperly cleaned instruments, leading to potential exposure to Hepatitis B, C, and HIV for approximately 9,000 patients.

The court approved a proposed settlement of $1,550,000 in damages, plus costs and disbursements, resulting in a net settlement amount of $1,058,550.

The settlement fund was divided into an Infected Claims Fund (70%) and an Exposed (Uninfected) Claims Fund (30%), with provisions for the Ontario Ministry of Health's subrogated claim.

The court also approved class counsel fees of $465,000, plus HST and disbursements, based on a 30% contingency fee.

The approval was based on the settlement being fair, reasonable, and in the best interests of the class, considering litigation risks and the benefits of a streamlined claims process.

At a case conference, the parties presented a proposed settlement of the class action and sought approval for the Short Form and Long Form Notice to notify class members.

The court approved the proposed forms and means of notice, noting they were effectively the same as those used for the certification order.

A settlement approval hearing was scheduled for February 5, 2021.

The defendant sought leave to appeal an order dismissing its motion for summary judgment in a dental malpractice action.

The primary issues were the admissibility of a treating cardiologist's opinion on causation without strict compliance with Rule 53.03 and whether conflicting expert opinions could be resolved at the summary judgment stage.

The court, applying the principles from Westerhof v. Gee Estate, determined that the treating cardiologist was a "participant expert" whose opinion was admissible.

Given the presence of conflicting medical expert opinions on causation and questions surrounding the defendant's missing dental records, the court found that a genuine issue requiring a trial existed.

Consequently, the motion for leave to appeal was dismissed, and the matter was directed to proceed to trial.

The moving party dentist sought leave to appeal an order refusing partial summary judgment to dismiss the responding party's claim for damages arising out of an alleged geographic tongue injury.

The moving party argued there was no evidence linking his treatment to the injury.

The Divisional Court denied leave to appeal, finding no conflicting decision or matter of general importance.

The court noted that the responding party's expert had previously opined that the geographic tongue injury stemmed from the pain following the dental work, creating a genuine issue for trial.

The appellant commenced a negligence action against the respondent dentists for substandard dental implant procedures.

The respondents successfully moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

On appeal, the appellant argued the motion judge erred in applying the discoverability test.

The Court of Appeal dismissed the appeal, finding the claim was discoverable when the appellant's new dentist explained the nature of the problem and advised he would have conducted the procedure differently, which occurred more than two years before the action was commenced.

Following dismissal of a medical malpractice action arising from a broken jaw allegedly caused during wisdom tooth extraction, the successful defendant sought costs on a partial indemnity basis.

The trial lasted six days and involved competing expert evidence regarding negligence and liability, including a contested voir dire on the qualification of the plaintiffs’ expert.

The court accepted the defendant’s expert evidence and found the defendant entirely successful at trial.

Considering the length of the proceeding, the expert evidence, and the discounted fee claim, the court found the requested costs reasonable.

Costs were awarded to the defendant in the amount of $63,800 all inclusive.

The plaintiff suffered a fractured jaw and permanent nerve damage during the extraction of a wisdom tooth by the defendant oral surgeon.

The plaintiff brought a medical malpractice action alleging the surgery was unnecessary, lack of informed consent, and negligence in the extraction procedure.

The court dismissed the action, finding that the extraction was necessary, the defendant adequately disclosed the risks, and the defendant met the standard of care during the surgery.

The court preferred the evidence of the defendant's expert and found that a jaw fracture can occur even with the use of minimal force.