André I.G. Michael

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

This endorsement addresses motions by the court-appointed Monitors in the ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings involving JTI-Macdonald Corp., Imperial Tobacco Canada Limited and Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The Monitors sought approval for amendments to the CCAA Plans to resolve the allocation of a $750 million working capital holdback among the Tobacco Companies.

The only opposition came from the Heart and Stroke Foundation, which objected as a social stakeholder but was found to lack standing.

The court granted the motions, finding the amendments did not adversely affect any creditors and were appropriate in the circumstances.

The appellant appealed the dismissal of her negligence claim based on lack of informed consent following a laparoscopically assisted vaginal hysterectomy performed by the respondent surgeon, during which the appellant's left ureter was transected.

The respondent cross-appealed the trial judge's finding of negligence in post-operative care.

The Court of Appeal dismissed the appeal on informed consent, finding the trial judge properly applied the modified objective test and reasonably concluded that a reasonable person in the appellant's circumstances would have proceeded with surgery despite the risks.

The Court allowed the cross-appeal, finding the trial judge's conclusion that the respondent breached the standard of care in post-operative management was not supported by the expert evidence, as the experts acknowledged that declining to order a CT scan on July 7, 2008 was a reasonable decision within the standard of care.

The plaintiff was diagnosed with breast cancer that metastasized to her bones.

She brought a medical malpractice action against her radiologist and general surgeon, alleging their negligence caused a nine-month delay in diagnosis.

The court found both doctors breached their respective standards of care: the radiologist failed to order further imaging for suspicious microcalcifications, and the surgeon failed to properly investigate discordant biopsy results or follow up on the original lump.

The court concluded that but for the delay, the plaintiff's cancer would have been diagnosed at Stage I and cured.

The plaintiff was awarded damages for pain and suffering, income loss, and Family Law Act claims.

Following a medical malpractice trial where the plaintiff was awarded $35,000 in damages for delayed diagnosis, the court determined the quantum of costs.

The parties agreed the plaintiff was entitled to partial indemnity costs for both the first and second trials.

The court noted the high cost of expert opinion evidence but declined to penalize the plaintiff for these expenses, particularly given the defendant's poor recordkeeping which complicated the case.

Costs were fixed at $210,000.

In a supplemental endorsement following a trial decision where the plaintiff was awarded $35,000 for delayed diagnosis but failed on claims of informed consent and surgical negligence, the plaintiff's counsel requested an assessment of damages had all claims succeeded.

The court assessed the hypothetical damages at $100,000 for pain and suffering, $100,000 for past loss of income, and $125,000 for future loss of income, plus the Ministry of Health subrogated claim and prejudgment interest.