Andrew McKenna

Following the dismissal of the plaintiff's medical malpractice action on summary judgment, the successful defendant physicians and hospital sought their costs on a substantial indemnity scale.

The plaintiff, a self-represented litigant, had alleged a delayed diagnosis of Lyme disease against 35 physicians and the hospital.

The court found that the plaintiff acted unreasonably by ignoring repeated guidance regarding the necessity of expert opinion evidence and by failing to familiarize himself with relevant legal practices.

The court awarded substantial indemnity costs to the defendants, fixing the physicians' costs at $365,095.67 and the hospital's costs at $75,019.11.

The plaintiff brought an action against 28 physicians, a hospital, and the provincial and federal governments, alleging negligence and misrepresentation leading to a delayed diagnosis of Lyme disease.

The defendants brought motions to strike the statement of claim.

The court struck the claims against the provincial and federal governments without leave to amend, finding the plaintiff failed to provide statutory notice to Ontario and failed to plead material facts establishing a duty of care by the governments.

The court also struck several paragraphs of the claim against the physicians and hospital, but granted the plaintiff leave to amend to properly plead material facts supporting his claims in negligence, vicarious liability, and breach of fiduciary duty.

The plaintiff brought a motion to adjourn a scheduled jury trial in a medical malpractice action after learning that a key expert witness would be unavailable on the trial date.

The defendants opposed the adjournment, arguing the unavailability resulted from the plaintiff’s counsel failing to notify the expert of the agreed trial date in a timely manner.

The court considered the discretionary test for adjournments and the need to balance the interests of the parties and the administration of justice.

Although the court criticized the plaintiff’s counsel’s conduct as inexcusable, it concluded the plaintiff would suffer prejudice if forced to proceed without the expert’s live testimony and there was no evidence of non‑compensable prejudice to the defendants.

The trial was adjourned and directed to be rescheduled peremptory on the plaintiff.

The plaintiff lien claimants brought a motion for judgment following the defendants' default on a settlement agreement in a construction lien reference.

The first mortgagee, Pillar, sought the return of funds it had advanced that were held in trust by plaintiff's counsel.

The Master granted judgment to the lien claimants, finding they were entitled to enforce the settlement agreement upon default.

The Master dismissed Pillar's claim to the trust funds, holding that the funds were advanced to support the settlement without any escrow agreement in Pillar's favour and were therefore available to satisfy the judgment.

The moving parties sought summary judgment dismissing a negligence, intentional tort, and Charter damages claim arising from the plaintiff’s involuntary detention for psychiatric assessment under the Mental Health Act.

The plaintiff alleged improper issuance and confirmation of a Form 1 and improper medical treatment during a brief detention at hospital.

The court held that medical malpractice claims require expert evidence establishing the applicable standard of care, breach, and causation.

The plaintiff filed no expert evidence and relied solely on allegations in the statement of claim, while the defendants filed expert reports confirming that the physicians’ conduct met the standard of care.

As no genuine issue requiring a trial was raised, summary judgment was granted dismissing the claims against the physicians and the hospital.

The plaintiff masonry company brought an action for unpaid services under a verbal, cash-based contract for the installation of stone veneer and chimneys on the defendants' new home.

The defendants counterclaimed for the cost of remedial work, alleging the masonry was defective and not compliant with the building code.

The court found that both parties entered into an imprecise, 'under the table' arrangement and shared responsibility for the project's shortcomings.

Concluding that the plaintiff received less than expected but was entitled to less due to the final result, and that the defendants as builder/contractors bore responsibility for the conditions, the court dismissed both the main action and the counterclaim.

The court determined costs following the dismissal of a summary judgment motion brought under Rule 20 of the Rules of Civil Procedure.

The plaintiff, as the successful party on the motion, sought full recovery of legal fees exceeding $9,000.

The moving defendants argued that no costs should be awarded or that costs should be in the cause, emphasizing that the motion was reasonably brought and that a key appellate authority relied upon by the court was released after the motion was argued.

The court found no evidence of unreasonable conduct or bad faith to justify substantial indemnity costs and instead awarded partial indemnity costs.

Costs were fixed at $5,500 payable forthwith.