Bernie Romano

The applicant filed a human rights application alleging discrimination against her employer and several members of its management team.

Following a Notice of Intent to Dismiss regarding the personal respondents, the applicant consented to removing all personal respondents except one.

The Tribunal ordered the removal of the agreed-upon personal respondents and directed the parties to mediation.

The respondent claimed it was owed $245,000 by the appellants.

The parties signed Minutes of Settlement and a Consent to Judgment in July 2008 with legal advice, but subsequently signed another document in September 2008 without legal advice.

The appellants argued the later document superseded the earlier ones, while the respondent disagreed.

The Court of Appeal held that the serious factual issues between the parties could not be resolved on a paper record and required a trial.

The appeal was allowed and the judgment below was set aside.

The plaintiffs brought a medical malpractice action following the death of Frederick Fowlow, who died from a detached vascular graft four days after undergoing an axillofemoral bypass surgery performed by the defendant surgeon.

The plaintiffs alleged the surgeon was negligent for using a graft that the manufacturer expressly warned was not recommended for that specific procedure.

The court found that the surgeon breached the standard of care by failing to read the manufacturer's instructions, using the non-recommended graft, and failing to inform the patient of the manufacturer's warning.

However, the action was dismissed because the plaintiffs failed to prove causation; there was insufficient evidence to establish that the detachment of the graft was caused by the type of graft used rather than being a known inherent risk of the procedure.

The plaintiff appealed a decision upholding a Master's refusal to strike an affidavit.

During cross-examination on the affidavit, the witness's counsel adjourned the examination so the witness could consult with another lawyer.

When cross-examination resumed, the witness refused to answer questions about the consultation, claiming solicitor-client privilege.

The Divisional Court held that the Master erred by placing the onus on the plaintiff to prove interference with the witness's evidence without requiring the defendants to elect whether to waive privilege or withdraw the evidence.

The appeal was allowed, the decisions below set aside, and the matter remitted to the Master.

The moving parties sought leave to appeal an interlocutory order upholding a Master's refusal to strike an affidavit.

During cross-examination on the affidavit, the witness consulted with his lawyer, and opposing counsel subsequently claimed solicitor-client privilege over the communication.

The Master found no evidence of interference and dismissed the motion to strike.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of placing the onus on the examining party to prove interference when the communication was prima facie improper and shielded by privilege.

The court also found the issue of improper communication during cross-examination to be a matter of general public importance.

The appellant municipality appealed a declaration that the respondents had established legal non-conforming uses for outdoor storage and business operations on their agriculturally zoned lands.

The appellant argued the application judge unreasonably preferred the respondents' witness testimony over historical aerial photographs.

The Court of Appeal dismissed the appeal, finding ample evidence to support the application judge's factual findings and no palpable or overriding error.

The appellant appealed a trial judgment finding that a robotic weld cell it designed and produced for the respondent was not reasonably fit for its intended purpose.

The appellant argued the trial judge erred by failing to find an implied term in the contract requiring the respondent to provide pretacked assemblies within tolerances suitable for robotic welding.

The Court of Appeal dismissed the appeal, finding the contract documents and commercial realities placed the responsibility on the appellant, who had specialized expertise in robotic welding and knowledge of the respondent's facility.

The respondent sued the appellant lawyer and law firm for breach of trust, alleging they paid loan funds out of their trust account without her authorization.

The respondent had provided a collateral mortgage on her home as secondary security for a loan to a company owned by her children.

The trial judge found the appellants liable for breach of trust.

On appeal, the Court of Appeal reversed the decision, holding that because the respondent's mortgage was collateral and secondary, the loan funds were advanced to the primary borrower.

The law firm properly held the funds in trust for the primary borrower and paid them out on its instructions.

The appeal was allowed and the action dismissed.

The appellant appealed a trial decision regarding his entitlement to commission on a life insurance policy.

The trial judge found that the second policy was a new policy, not a replacement policy, and that the appellant was not responsible for its creation.

The trial judge also found no bad faith on the part of the respondents.

The Court of Appeal upheld the trial judge's findings, noting that the 25 percent commission received by the appellant was a realistic compromise.

The appeal was dismissed with costs.

The appellants appealed a trial judgment under the Partition Act, arguing the trial judge erred in several factual findings.

The Court of Appeal dismissed the appeal, finding that the trial judge gave cogent reasons for her factual findings based on the written agreement, approved financial statements, and accountants' evidence.

The court found no basis to interfere with the trial judge's findings.

The appellants, Axor Construction Canada Inc. and London Guarantee Insurance Company, appealed a trial judgment awarding the respondent $455,462.85 in damages under the Construction Lien Act.

The dispute arose from a construction subcontract where the appellant stopped payment on a certified cheque due to a backcharge related to a Fair Wage Policy.

The Divisional Court upheld the trial judge's finding that the appellant's actions, including stopping payment and demanding an unjustified bond, constituted a fundamental breach of contract that excused the respondent from continued performance.

The appeals were dismissed with costs.

The appellant employer appealed a trial judgment awarding the respondent employee 18 months' notice for wrongful dismissal, damages for mental distress, punitive damages, and solicitor-and-client costs.

The employee had suffered a workplace injury and was persistently harassed by the employer to return to work, causing her severe emotional distress and physical illness.

The Court of Appeal reduced the notice period to 12 months and set aside the punitive damages and costs awards.

However, the Court upheld the $15,000 award for mental distress, finding that the employer's extreme and insensitive harassment constituted the independent tort of intentional infliction of mental suffering.