Atrisha S. Lewis

This ruling addresses requested changes to the jury charge in a medical negligence trial concerning the standard of care and the admissibility and weight of evidence regarding minority medical practice, usual practice, and the distinction between buttock numbness and saddle anaesthesia.

The court reviews the law on minority practice, the role of expert evidence, and the proper approach to weighing conflicting testimony, ultimately declining to make certain amendments requested by the defendant and clarifying the law for the jury.

The defendant, Farm Mutual Reinsurance Plan Inc. (FMRP), brought a motion for security for costs against the plaintiff, 2496300 Ontario Inc. (249), under Rule 56.01(1)(d) due to 249's insufficient assets. 249 did not dispute its lack of assets but argued against the order due to FMRP's unreasonable delay in bringing the motion, FMRP's alleged causation of 249's financial state, and 249's strong chance of success.

The court found FMRP's delay unreasonable, limiting the security to future costs.

The court also found that 249 failed to establish a "good chance of success" in overturning its independent contractor agreement.

The motion was granted in part, ordering 249 to post $50,000 for FMRP's future partial indemnity costs and to pay $15,000 in partial indemnity costs for the motion itself.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

This is an appeal from a medical negligence judgment.

The appellants, two doctors, challenged the trial judge's findings on standard of care and causation after Ms. Stevenhaagen suffered severe neurological injuries following an angioplasty procedure and subsequent aortic rupture.

The trial judge found the doctors liable for failing to consult a cardiovascular surgeon promptly and for transferring the patient to the Coronary Care Unit instead of directly to the operating room after temporary stabilization.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusions that the standard of care was breached and that this breach caused Ms. Stevenhaagen's injuries, applying the 'but for' test for causation.

The applicant, Vale Canada Limited and related entities, brought a motion before the Court of Appeal for Ontario to expedite the hearing of their appeals.

These appeals stem from a lower court decision regarding jurisdiction and forum non conveniens in a complex insurance dispute with parallel proceedings in New York.

The motion judge dismissed the request for expedition, emphasizing that judicial comity requires avoiding an "unseemly race" between jurisdictions and that the issue of forum non conveniens should be determined on its merits by the respective appeal courts, not by the speed of litigation.

The court-appointed Liquidators of Days Hong Kong sought a Norwich Order against two Ontario corporations (Days Canada Limited and Days Holdings Limited) and their director, Scott McPhail (Third Parties), to obtain information for tracing assets and investigating potential fraudulent conveyances by Mahesh Dayaram, a convicted fraudster.

The Third Parties argued the Liquidators had sufficient information and the request was a fishing expedition.

The court granted the Norwich Order in part, finding the test for such an order was met due to the suspicious timing of share redemptions and property transfers, the need for asset tracing in a large-scale fraud, and the Liquidators' broad investigative powers under a Recognition Order.

The court also addressed the scope of indemnity for the Third Parties' costs of compliance.

The plaintiff professional corporation brought an action against the Law Society of Ontario, several individuals, and a Superior Court judge, seeking damages and declarations related to a previous unsuccessful application.

The defendants requested the action be dismissed under Rule 2.1.01.

The court dismissed the action as frivolous, vexatious, and an abuse of process, finding that the judge had absolute immunity, the plaintiff corporation had no cause of action, the issues had already been decided in the previous proceeding, and the pleadings contained inflammatory and bellicose language.

The plaintiffs brought a medical malpractice action following a balloon angioplasty procedure that resulted in a ruptured thoracic aorta.

The patient survived but suffered paraplegia and cognitive deficits, eventually passing away years later.

The court found that the interventional cardiologist and vascular surgeon breached the standard of care by failing to consult with a cardiac surgeon and by transferring the patient to the coronary care unit instead of directly to the operating room after an interim endovascular repair.

The court concluded that this delay in obtaining open cardiac surgery caused the patient's neurological injuries.

Judgment was granted for the plaintiffs for an agreed-upon amount of damages.

Following a 70-day medical malpractice jury trial where the plaintiff was awarded $3.75 million in damages, the court determined the appropriate quantum of costs.

The plaintiff sought over $3.3 million in costs and disbursements, while the defendants argued for a significantly lower amount, citing proportionality and excessive hours.

The court analyzed the Rule 57 factors, noting the complexity of the case, the necessity of extensive preparation by plaintiff's counsel, and the fact that defence costs themselves exceeded $3.2 million.

The court fixed the plaintiff's costs at $2,404,765 for fees and $628,387 for disbursements, totaling $3,033,152.

The plaintiffs in a medical malpractice action sought to adduce opinion evidence from two treating cardiac surgeons as participant experts.

The defendants brought a motion to exclude portions of the proposed evidence of one of the surgeons, arguing it went beyond the scope permitted by Westerhof and that the surgeon lacked impartiality and specific expertise.

The court allowed the motion in part, excluding opinions on the standard of care prior to the surgeon's involvement and on whether earlier surgery would have changed the outcome, as these were not based on his observation or participation.

However, the court permitted the surgeon to opine on matters arising directly from his involvement, holding that concerns about his partiality should go to the weight of the evidence rather than its admissibility.

During a medical malpractice jury trial, the defendant physicians sought leave under Rule 53.08 to file a supplementary expert report and to elicit testimony from their experts on matters not explicitly stated in their reports.

The court denied leave for the supplementary report, finding it failed to comply with Rule 53.03 by omitting the reasons for its conclusions, and its admission would cause undue prejudice to the plaintiffs.

The court also ruled on several evidentiary objections, narrowly interpreting the 'latency' principle.

The court held that experts cannot use conclusory statements in their reports to ambush opposing parties with new reasons or theories at trial, though exceptions were made where testimony directly responded to new developments during the trial.

Prior to a medical malpractice jury trial, the court ruled on several procedural and evidentiary motions.

The plaintiffs had entered into a Pierringer Agreement with the defendant hospital and nurses, leaving only the physicians as defendants.

The court ruled that both the plaintiffs and the physicians could cross-examine the settling nurses at trial.

The court also determined the sequencing and phrasing of jury questions, ruling that standard of care must be determined before causation, and permitting 'caused or contributed' language due to the presence of multiple tortfeasors.

Finally, the court allowed the plaintiffs to use photographs of the amputations in their opening address but restricted the experts' use of lengthy PowerPoint presentations.

This ruling addresses the admissibility of expert medical evidence from Dr. Harmeet Gill, an ophthalmologist, in a medical malpractice trial.

The plaintiffs sought to have Dr. Gill testify on the standard of care for ophthalmologists, diagnosis and treatment of orbital cellulitis, the general standard of care for physicians dealing with orbital cellulitis (including emergency room and infectious disease specialists), and causation.

The defendants objected to Dr. Gill testifying outside his specialization and on causation.

The court admitted Dr. Gill's evidence regarding the standard of care for ophthalmologists, general physician knowledge (e.g., sepsis identification), and multidisciplinary team communication and record-keeping, finding it relevant and necessary to the plaintiffs' theory of the case.

However, the court excluded Dr. Gill's opinions on causation, as he admitted lacking expertise on the ultimate outcome of septic patients.

The plaintiff, Solea International BVBA, was the successful party on a motion for summary judgment and sought costs on a substantial indemnity basis.

The defendant, Bassett & Walker International Inc., opposed the substantial indemnity claim, arguing that Solea's offer to settle for the full claim amount was not a true "offer of compromise." The court found that Solea was entitled to rely on its offers and awarded costs on a substantial indemnity basis from the date of its offer.

The court also determined the calculation method for substantial indemnity costs for the second hearing.

This decision addresses a scheduling dispute in a proposed class action concerning the Bell Canada Pension Plan.

The defendants sought to have their motion to stay the class action, arguing that the Office of the Superintendent of Financial Institutions (OSFI) was the preferable forum, heard before the certification motion.

The plaintiff opposed this, requesting both motions be heard concurrently.

The court, applying the Cannon factors and principles against litigation by installments, denied the defendants' request, directing that the stay motion be heard together with the certification motion, emphasizing that the preferability of jurisdiction is an issue best determined within the certification context.

The appellant appealed a summary judgment holding it liable for the full unpaid purchase price of frozen shrimp ($228,604.50 US) plus prejudgment interest.

The dispute arose from a contract between a Toronto-based company and a Belgian seafood trader for the purchase of shrimp from an Ecuadorian supplier.

The motion judge determined liability under Ontario common law without addressing whether the United Nations Convention on Contracts for the International Sale of Goods applied.

The Court of Appeal found that the proper law of the contract was a threshold issue that should have been addressed, as the Convention applies to international sales of goods between parties in different contracting states.

The court set aside the summary judgment and remitted the matter for a new hearing.

The appellant sought leave to appeal from the dismissal of his appeal to the Superior Court from his conviction in the Ontario Court of Justice for uttering threats to cause death.

The Court of Appeal dismissed the application for leave to appeal, finding that the appellant failed to satisfy the test on both branches: there was no question of law with arguable merit and significance to the administration of justice, and there was no clear error in the decision below.

The court rejected the appellant's arguments regarding solicitor-client privilege, finding that such privilege did not apply to the communications in question and that the summary conviction appeal judge was not required to address the issue in his reasons.

Solea International BVBA (Solea) brought a motion for summary judgment against Bassett & Walker International Inc. (BWI) for payment of a shrimp shipment.

BWI disputed liability, claiming Solea failed to provide proper import documents (a valid health certificate) for Mexican customs.

Solea countered that BWI's own actions prevented importation and that BWI had acknowledged payment responsibility.

The court applied the Hryniak v. Mauldin framework for summary judgment, finding no genuine issue requiring a trial.

The court determined there was no evidence of a deficient health certificate from Solea or that such a deficiency caused BWI's inability to import.

Instead, evidence suggested BWI failed to pay port fees.

The motion for summary judgment was granted in favour of Solea for $228,604.50 (U.S.), plus pre and post-judgment interest.

The appellant appealed his conviction for conveying a threat to cause death to a judge via email.

He argued the trial judge erred in relying on the contents of the email to establish his identity as the sender and in finding the words constituted a threat.

The Superior Court of Justice dismissed the appeal, finding no error in the trial judge's use of circumstantial evidence and self-identification to prove identity, nor in the objective conclusion that the email's contents constituted a threat to cause death.

In CCAA liquidation proceedings, the secured creditor and investment advisor sought a declaration that it was entitled to a contractual additional fee arising from the sale of one of the debtor’s portfolio investments.

The creditor argued that the debtor breached a settlement agreement by failing to repay outstanding advisor debt before the asset sale closed, which would have triggered the fee.

The court held that the agreement required payment only when reasonably practicable based on the debtor’s commercially reasonable estimate of liquidity and expenditures.

Given the uncertainty of the closing and the debtor’s limited cash resources during CCAA proceedings, the decision to wait until proceeds were actually received was commercially reasonable.

The motion for a declaration and payment of the additional fee was dismissed.