Anne E. Spafford

This is a motion for court approval of a settlement in a complex medical malpractice case involving a person under disability, Nathaniel Hughes.

The plaintiffs sought approval of a $4.5 million settlement, including a structured annuity, for injuries sustained by Nathaniel as an infant at Peterborough Regional Health Centre.

The court reviewed the settlement under Rule 7.08 of the Rules of Civil Procedure, considering the risks of litigation and the best interests of the person under disability.

The court found the settlement, including legal fees and disbursements, to be fair and reasonable given the complexities and risks, and approved it.

The plaintiff suffered a severe asthma attack and was admitted to the hospital.

The defendant internist assumed care but failed to promptly consult an intensive care specialist or arrange for timely intubation by an experienced clinician.

The plaintiff was eventually intubated by a respiratory therapist after multiple attempts and suffered a hypoxic brain injury, rendering her an incomplete quadriplegic.

The court found the defendant breached the standard of care by failing to consult a specialist sooner, delaying the decision to intubate, and failing to ensure the most experienced clinician performed the procedure.

The court also found that these breaches caused the plaintiff's brain injury.

Judgment was granted for the plaintiffs.

This decision addresses a challenge to the admissibility of an expert witness, Dr. David Gladstone, during a medical malpractice trial.

Counsel for the defendants argued that Dr. Gladstone was not impartial or objective and was in a conflict of interest due to a prior treating relationship with the plaintiff.

The court found that Dr. Gladstone had disclosed the prior relationship to the plaintiffs' counsel, believed it irrelevant to his expert opinion, and was confident in his objectivity.

The court also clarified that treating physicians can act as medical experts, with their duty solely to the adjudicative body, not to advocate for former patients.

The judge qualified Dr. Gladstone as an expert and permitted him to testify, criticizing the defendants' counsel for raising the challenge for the first time at trial as a 'trial by ambush'.

The court addressed a dispute in a medical malpractice jury trial regarding the wording of causation questions and whether the jury should provide reasons for their findings.

The plaintiffs proposed "caused or contributed to" language, while the defendants advocated for "but for" and requested reasons.

The court accepted the plaintiffs' "caused or contributed to" language, finding no compelling reason not to translate the "but for" test into everyday language, and rejected the request for the jury to provide reasons, citing the risk of confusion and violation of jury secrecy.

The plaintiffs brought a medical malpractice action against several physicians following the death of a 47-year-old woman who died in hospital from an unknown cause, potentially a pulmonary embolism, acute coronary syndrome, or complications from sepsis.

The plaintiffs alleged the defendant doctors failed to diagnose and treat a pulmonary embolism with full-dose anticoagulation.

The court found that the defendant internal medicine specialists and cardiologists met the standard of care, as their differential diagnoses and treatments were reasonable given the patient's complex presentation.

The court also found the plaintiffs failed to prove causation on a balance of probabilities.

The action was dismissed.

Following the dismissal of the defendant physicians' summary judgment motion based on the expiry of the limitation period, the court determined costs.

The defendants argued for divided success because the plaintiff had invited the court to grant summary judgment in her favour on the limitation issue.

The court rejected this, finding the plaintiff was entirely successful in resisting the motion.

The court awarded partial indemnity costs of $25,000 to the plaintiff and $10,000 to the intervenor (the plaintiff's former lawyers), noting that while the moving parties should not be saddled with double costs, the intervenor was entitled to a modest award.

The plaintiff suffered a duodenal perforation during outpatient surgery in January 2013, leading to severe complications.

She initiated three actions: the first against her supervising gastroenterologist and "Dr. John Doe" within the limitation period; the second in May 2016 against the gastroenterology fellow who performed the procedure (Dr. Marc Fournier) and other implicated doctors, after identifying them through hospital records; and the third in December 2016 against an emergency doctor (Dr. Hébert) after an expert report suggested his delayed antibiotic administration contributed to her negative outcome.

The defendants in the second and third actions moved for summary judgment, arguing the actions were statute-barred.

The court dismissed the motion, finding genuine issues for trial regarding discoverability, particularly concerning the plaintiff's reasonable diligence in identifying defendants and obtaining expert opinions, given her severe illness and the complexity of the medical facts.

The appellants, owners of property in Wychwood Park, Toronto, challenged their obligation to pay annual levies under an 1891 trust deed governing common property in the residential community.

The appellants argued that the positive covenant to pay levies does not run with freehold land under Ontario law.

The trial judge dismissed the trustees' claim, accepting the positive covenants argument.

The appeal judge reversed, holding that both the benefit and burden exception and the conditional grant exception to the positive covenants rule apply under Ontario law.

The Court of Appeal allowed the appeal, holding that the appeal judge erred by failing to follow binding precedent in Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123, which established that neither exception forms part of Ontario law.

The court found that the grants of benefit in the trust deed were not framed as conditional upon payment of the levy, and therefore the conditional grant exception did not apply.

The appellants, owners of property within Wychwood Park, a residential community in Toronto, challenged their obligation to pay annual levies for maintenance and taxes of common property pursuant to a 1891 trust deed.

The respondent trustees sought to recover unpaid levies from 2010-2013.

The appellants invoked the common law rule that positive covenants do not run with freehold land.

The Court of Appeal for Ontario held that the positive covenant obligation was not enforceable against the appellants, as neither the "benefits and burdens" exception nor the "conditional grant" exception to the positive covenant rule applied under Ontario law.

The court affirmed that the Amberwood precedent, which rejected adoption of these exceptions in Ontario, remained binding.

The defendant radiologist moved for summary judgment dismissing the medical malpractice claim against him, arguing the plaintiffs failed to tender expert opinion evidence on causation.

The plaintiffs cross-moved for leave to admit late-served expert reports from a gastroenterologist and a radiologist.

The court granted the plaintiffs leave to admit the late reports, finding that their exclusion could cause a miscarriage of justice and the defendants would not suffer undue prejudice given the trial's adjournment.

Relying on the newly admitted expert evidence regarding standard of care and breach, the court dismissed the defendant's summary judgment motion, concluding that a genuine issue requiring a trial existed and that an inference of causation might be drawn at trial.

The issue of costs thrown away due to the trial's adjournment was reserved to the trial judge.

In a medical malpractice action arising from the labour and delivery of an infant plaintiff, the defendant physician admitted breaching the standard of care and causing neurological impairment.

The dispute concerned the proper form of judgment following the admission of liability and the terms of a proposed advance payment.

The court determined the wording of the judgment to reflect the admission while limiting liability to damages causally linked to the physician’s negligence, with damages to be assessed at trial.

The court ordered an advance payment of $300,000 to be used for specified care and accommodation needs of the infant plaintiff and directed that the payment be credited against any eventual damages award.

No costs were awarded due to the good‑faith nature of the dispute between counsel.

Following a 21‑day personal injury trial concerning municipal liability for road conditions and signage, the successful plaintiffs sought partial indemnity costs exceeding $1,045,000.

The court considered the complexity of the litigation, the extensive expert evidence, and the reasonableness of the fees and disbursements claimed.

Applying the principle that costs must be fair and reasonable for the unsuccessful party to pay rather than fully reflective of the successful party’s expenditures, the court concluded that the amounts claimed exceeded reasonable expectations.

Significant reductions were made to both fees and disbursements.

Costs were fixed at $406,000 in fees and $200,000 in disbursements, plus applicable taxes.

The plaintiffs brought a negligence action against a municipality arising from a single‑vehicle collision on a rural road curve that caused catastrophic injuries to a young driver.

The court considered whether the municipality breached its duty under s. 44 of the Municipal Act to keep the roadway in a reasonable state of repair, focusing primarily on inadequate warning signage and the absence of an advisory speed sign for a sharp curve.

Expert evidence established that proper signage, including a 40 km/h advisory speed tab and additional warning devices required by the Ontario Traffic Manual, should have been installed.

The municipality had not conducted any evaluation of the signage following amalgamation and allowed substandard signage to remain in place for years.

The court found the municipality liable for failing to maintain the road in a reasonable state of repair, but also held the driver contributorily negligent for failing to sufficiently reduce speed in snowy conditions.