Andrew McCutcheon

The appellant appealed a costs award of $300,000 made by the trial judge following a motor vehicle accident case.

The respondent was struck by a vehicle driven by the appellant while crossing a pedestrian crossing.

After a three-week jury trial, the jury awarded the respondent $24,166 in general damages and $26,000 in special damages for past income loss, with a net recovery of $16,160.50 after accounting for contributory negligence and statutory deductibles.

The trial judge awarded costs on a partial indemnity basis, finding the respondent was more successful at trial.

The appellant argued the costs award was wholly disproportionate to the modest recovery and that the trial judge erred in finding the respondent was more successful.

The Court of Appeal dismissed the appeal, upholding the costs award.

A negligence action arising from a fall suffered by an 80-year-old patient hospitalized at London Health Sciences Centre.

The patient was admitted with confusion secondary to a urinary tract infection and subsequently fell on August 15, 2015, resulting in discovery of an acute-on-chronic subdural hematoma requiring neurosurgery.

The patient never recovered her prior cognitive function and died in April 2021.

The court found that the defendant nurses breached the standard of care by failing to complete a Fall Risk Assessment and Intervention Flowsheet and failing to implement a documented toileting routine responsive to the patient's frequent urination needs.

However, the court dismissed the action because the plaintiffs failed to prove on a balance of probabilities that the fall caused the acute portion of the subdural hematoma, and failed to prove that the acute bleed changed the patient's treatment or clinical outcomes.

The defendants brought a motion for a vexatious litigant order against the plaintiffs pursuant to section 140 of the Courts of Justice Act.

The motion was initiated under Rule 2.2 of the Rules of Civil Procedure.

The court found that the procedural requirements of Rule 2.2 had not been properly followed, with the matter languishing for months without the mandatory initial review.

The judge conducted the required initial review and determined that sufficient indications of potential vexatious litigation existed to warrant a hearing under Rule 2.2.07.

The judge ordered that the hearing proceed in writing and imposed a stay of the current proceeding and prohibition on further motions pending determination of the vexatious litigant motion.

The plaintiff brought a motion to amend the statement of claim to replace a 'Jane/John Doe' defendant with a named individual, Hadi Bahiraei, in an action concerning a fatal drug overdose at a mental health facility.

The defendants opposed the amendment, arguing there was an unexplained and inordinate delay of over two years in bringing the motion after the plaintiff learned the individual's identity.

The court granted the motion, finding that while the delay was significant and poorly explained, the amendment would not cause non-compensable prejudice to the defendants.

The plaintiff was ordered to pay $1,500 in costs thrown away.

This appeal addressed whether persistent feelings of frustration and anger, without evidence of impairment, constitute a compensable mental injury under the principles established in Saadati v. Moorhead.

The Court of Appeal found that the trial judge erred in law by failing to apply the "Saadati factors" (cognitive impairment, impact on daily activities, and treatment) when assessing mental injury.

The Court concluded that the plaintiff's reported feelings, absent evidence of functional impairment or treatment, did not meet the legal threshold for a compensable mental injury.

The appeal was allowed, and the action dismissed.

Following a prior judgment, the parties reached an agreement regarding costs arising from the motion and the action.

The court issued a costs endorsement confirming the parties’ consent.

The plaintiffs, acting personally and as substitute decision maker and litigation guardian for other parties, agreed to pay the defendant physicians a lump sum amount.

The order formalized the agreed costs payment resolving the outstanding costs issue between the parties.

Physicians sought to withdraw life support from an incapable patient while the substitute decision-maker refused consent.

The Court held, by majority, that withdrawal of life support in the circumstances constituted treatment under Ontario’s Health Care Consent Act, 1996 and therefore required consent under the statutory regime.

The majority concluded that disputes over refusal of consent must be addressed before the Consent and Capacity Board, which may substitute its decision if statutory best-interests criteria are not met.

Dissenting reasons would have resolved the dispute under the common law rather than the statutory board process.

The appeal was dismissed, with dissent.

The plaintiffs brought a medical malpractice action against the defendant cardiologist following the sudden death of a 36-year-old man who collapsed after completing a half-marathon.

The deceased had severe aortic stenosis.

The plaintiffs alleged the defendant failed to properly advise the deceased against strenuous exercise.

The court ruled that hearsay statements by the deceased regarding the doctor's advice were inadmissible for lack of threshold reliability.

The court accepted the defendant's evidence that he had advised the deceased against distance running and warned him of the risk of sudden death.

The court found the defendant met the standard of care and dismissed the action.