Brendan Fitzpatrick Morrison

This decision concerns a medical negligence action brought by the family and estate of Kevin John McMullan against several physicians and a hospital, following Mr. McMullan’s sudden death from an aortic dissection.

The plaintiffs alleged that Dr. Naom and Dr. El Jaoudi breached the standard of care in their treatment of Mr. McMullan and that these breaches caused or contributed to his death.

The court found that both physicians met the standard of care in all respects, including the interpretation of diagnostic tests, management of hypertension, and discharge instructions.

The court also found that, even if there had been a breach, the plaintiffs failed to prove causation: the evidence established that Mr. McMullan’s aorta was normal for his age and body size, and that he would not have been referred for surgery or prevented from suffering the fatal dissection.

The action was dismissed in its entirety.

This decision addresses an evidentiary dispute during a trial regarding the admissibility of post-assessment medical reports through a defendant fact witness, Dr. McPherson.

The defendants sought to introduce reports created after Dr. McPherson's last assessment of the plaintiff, Jeremy Veran, to demonstrate improvement in symptoms.

The plaintiffs objected, arguing Dr. McPherson had not seen these documents and was not an expert witness.

The court ruled that documents not seen or received by Dr. McPherson, and not directly relevant to his care of the plaintiff, could not be introduced through him as a fact witness, even if they were part of the joint book of documents.

The defendants brought a motion to address two issues: the admissibility of opinions in two plaintiff expert reports (Miyanji and Levin) and the admissibility of evidence from five lay witnesses.

The court ruled that portions of the Miyanji and Levin reports that did not respond to specific "Defence Expert Reports" or introduced new standard of care issues were inadmissible due to late service and lack of reasonable explanation.

The motion to exclude the lay witnesses was dismissed as premature, with the court stating that the admissibility of their evidence, particularly any opinion evidence, should be assessed at the time it is tendered at trial.

The plaintiffs brought a motion seeking several orders before trial, including dismissal of claims against certain defendants, leave to amend their statement of claim, preliminary determination of jury questions, and exclusion of expert evidence.

The court granted the dismissal of claims against the "Released Defendants" without costs, as it was previously agreed upon.

Leave was granted to file a Fresh as Amended Statement of Claim, as the proposed amendments were extensive and did not remove admissions.

The court also determined the format for jury questions, largely adopting the plaintiffs' approach for damages and requiring explanations for answers, emphasizing standard of care and "but for" causation.

The issue of expert evidence was adjourned to a later date.

The plaintiffs brought a motion to preclude the defendants from introducing evidence from fifteen expert reports served late in a medical malpractice action.

The court considered the admissibility under Rule 53.08, assessing whether there was a reasonable explanation for the late service and if granting leave would cause irreparable prejudice or undue delay.

The court allowed some reports as supplementary or responding reports, finding a general reasonable explanation for delay due to discovery issues and prior party understanding.

However, it excluded a vocational report that introduced new scenarios without prior notice and a neuropsychological report, reiterating a previous ruling that no neuropsychological impairment issue was pleaded or supported by evidence, and its introduction would cause significant prejudice and necessitate trial adjournment.

The appellants sought to appeal the dismissal of their motion to stay the action and, for one appellant, the trial judgment finding conspiracy, joint and several liability, disgorgement of profits, and punitive damages.

The trial judge had found that a former supervisory employee breached his fiduciary duty by securing construction work for his own companies, accruing over $10 million in profits, and that his common-law wife was deeply involved.

The Court of Appeal dismissed the appeals, finding no basis for appellate intervention.

The court held that the appeal of the stay motion dismissal was not properly before it due to a failure to appeal the original order within the prescribed deadline.

The court also found no error in the trial judge's factual findings regarding the conspiracy and disgorgement.

This motion concerned a request for a stay pending appeal of a judgment secured by Lithium Royalty Corporation (LRC) after a bifurcated liability hearing in a breach of contract action.

The moving parties (Orion entities) sought a full stay of the underlying action and their appeal.

The court dismissed the motion for a full stay of the underlying action but granted a partial stay against two specific respondents, Bellatrix Ltd. and Orion Mine Finance (Master) Fund I LP, preventing enforcement actions without leave, due to the apparent strength of their appeals regarding corporate separateness.

The court also ordered a stay of the appeal itself (COA-23-CV-1029) pending the conclusion of the underlying trial to promote judicial efficiency and avoid multiplicity of proceedings.

The applicant, Lithium Royalty Corporation (LRC), brought an application to enforce an alleged contract for the purchase of an 85% interest in a lithium mining royalty from Orion Resource Partners (Orion).

The court addressed three main issues: whether LRC should be granted leave to add specific Orion entities as respondents (misnomer/amendment), whether the court had jurisdiction over these proposed respondents, and whether an enforceable contract was formed.

The court granted leave to add the Orion entities, finding they had voluntarily attorned to the court's jurisdiction.

It further found that a binding and enforceable contract for the royalty purchase was formed between LRC and Orion, and that this contract was not void under Nevada's Statute of Frauds.

This is an appeal concerning confidentiality orders in a civil action involving a minor plaintiff (P1), two minor defendants (D1, D2), and a school (XYZ School) with its employees.

The original motion judge had issued broad sealing and publication ban orders to protect the identities of the minor parties, extending to the school and its employees.

The appellants (P1 and Toronto Star) argued these orders were overbroad.

The Court of Appeal, applying the reformulated Sherman Estate test, found that while protecting the minors' identities was an important public interest, anonymizing the school and its employees was not necessary.

The court allowed the appeal, setting aside the broad sealing order and limiting the anonymity and publication bans to only the minor parties and their litigation guardians, along with specific identifying information, while allowing the school's identity to be public.

The appellant law firm appealed a Superior Court order that set aside an Associate Judge's decision to reinstate their action, which had been dismissed for delay.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly identified legal errors in the Associate Judge's application of the Reid v. Dow Corning Corp. test for reinstating actions dismissed for delay.

Specifically, the Associate Judge erred by treating periods of delay in isolation and by focusing on whether delay was "forgivable" rather than "sufficiently explained," despite evidence of egregious and unexplained delays.

The Court affirmed the motion judge's appropriate application of appellate jurisdiction and deference principles.

This is a motion to quash appeals of a non-publication and sealing order.

The Court of Appeal determined that the order was final for the media (Toronto Star) as it finally determined their constitutional rights under s. 2(b) of the Charter, allowing their appeal to proceed as of right.

For the plaintiffs, the order was interlocutory, but the court exercised its discretion under s. 6(2) of the Courts of Justice Act to hear their appeal concurrently due to the interrelation of the issues.

The motion to quash the appeals was dismissed.

The appellants, triplets born with serious disabilities, appealed the dismissal of their negligence claim against a physician who prescribed a fertility drug to their mother pre-conception.

They alleged the physician failed to provide informed consent and prescribed a contraindicated medication.

The Court of Appeal, in a majority decision, dismissed the appeal, affirming that a physician does not owe a duty of care to a future child for alleged negligence occurring pre-conception, citing policy concerns regarding conflicting duties and women's autonomy.

The dissenting judge argued that the allegation of a contraindicated drug could distinguish the case and warrant a full trial to determine if a novel duty of care exists.

This is a costs endorsement following a successful appeal by Subway against the Canadian Broadcasting Corporation (CBC) in an anti-SLAPP motion.

Subway sought partial indemnity costs of $61,291.30.

CBC requested reconsideration of the costs award based on Supreme Court of Canada anti-SLAPP decisions (Pointes and Bent) or a reduction to $17,000.

The Court of Appeal upheld its decision to award partial indemnity costs, distinguishing the case from Bent due to the availability of substantial judicial guidance on s. 137.1 of the Courts of Justice Act prior to CBC's motion, and the significant costs incurred by Subway.

The court awarded Subway $40,000 in partial indemnity costs.

The plaintiffs, Daniele Marthe Hutterli and Charles Hutterli, brought a medical negligence action against Dr. Douglas Scott, alleging he failed to meet the standard of care in assessing Mrs. Hutterli's ankle injury.

Mrs. Hutterli sustained an ankle fracture but was misdiagnosed with a sprain, leading to delayed treatment.

The plaintiffs claimed increased cartilage damage and higher risk of osteoarthritis due to the delay.

The court found that Dr. Scott met the standard of care in applying the Ottawa Ankle Rules, despite the misdiagnosis, concluding it was an error in judgment, not negligence.

Furthermore, the court found the plaintiffs failed to prove causation or damages, as there was no evidence that the alleged harm (increased cartilage damage, osteoarthritis risk) was caused by the delay, rather than the original fracture, or that a better outcome would have resulted.

The action was dismissed.

The appellants, Subway, appealed the dismissal of their $210 million defamation action against the Canadian Broadcasting Corporation (CBC) under an anti-Strategic Litigation Against Public Participation (SLAPP) motion (s. 137.1 of the Courts of Justice Act).

The action arose from a CBC Marketplace report alleging Subway's chicken products contained only 50% chicken DNA.

The Court of Appeal found that the motion judge erred in applying a higher standard for the "no valid defence" test and in weighing the public interest.

The Court determined that Subway had established grounds to believe CBC had no valid defence of responsible communication and that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression, given the significant reputational and financial harm alleged and the lack of urgency in disseminating unverified information.

The appeal was allowed, and the defamation action against CBC was permitted to continue.

This appeal addressed the application of Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to a negligence claim.

Subway sued Trent University for negligence and defamation after Trent's testing of Subway's chicken products was featured on a CBC "Marketplace" broadcast.

The motion judge dismissed Trent's anti-SLAPP motion, finding the negligence claim did not arise from an expression.

The Court of Appeal allowed Trent's appeal, holding that the negligence claim did arise from an expression related to a matter of public interest.

Furthermore, the Court found that Subway's negligence claim lacked substantial merit because no duty of care existed between Trent and Subway, as there was no undertaking of responsibility by Trent in favour of Subway, nor any reliance by Subway on Trent's services or statements.

The motion judge's order was set aside, and Subway's negligence claim was dismissed.

The Toronto Islands Community Trust Corporation sought declaratory relief, an injunction, and fines against Peter McLaughlin and Steven Whitfield regarding the transfer of an Island home.

McLaughlin, aged 90, adopted Whitfield, aged 58, and then purported to transfer a half-interest in his home to Whitfield, relying on an exception in the Toronto Islands Residential Community Stewardship Act, 1993, which permits transfers to a "child" (including adopted child).

The Trust argued this circumvented the Act's purpose of restricting transfers.

The court, applying a purposive approach to statutory interpretation, found that given the genuine, long-standing familial relationship between McLaughlin and Whitfield, the transfer did not violate the spirit or purpose of the Act.

The court dismissed the Trust's application for declaratory relief, injunction, and fines, but awarded costs to the Trust for a previous motion and full indemnity costs to the respondents for the main application.

This decision addresses the issue of costs following a professional liability claim where the plaintiffs sought over $16 million in damages but were ultimately awarded only $2,000 in nominal damages for breaches of fiduciary duty by the defendants.

The court determined that the defendants were the successful parties, having largely resisted the substantial monetary claim.

Despite findings of serious fiduciary duty breaches against the defendants (a law firm and a former in-house counsel), the court awarded costs to the defendants, but reduced the quantum by over 25% to $925,000 to reflect the seriousness of their misconduct.

An appeal from a summary judgment motion dismissing a claim for breach of confidence.

The appellant, a pharmaceutical company, alleged that the respondent misused confidential information regarding a potential equipment manufacturer (HED International) that was disclosed during a due diligence period for a failed asset purchase agreement.

The motion judge dismissed the claim, finding no detriment to the appellant.

The appellate court upheld the dismissal, finding that although the motion judge's approach to detriment was overly narrow, the appellant suffered no detriment as a matter of fact because it was not ready to manufacture its products and could not have benefited from direct access to the equipment manufacturer.

The parties disagreed on whether the judge should sign an order dismissing the plaintiff's prior certification and leave motions, or wait for the plaintiff's "motion for reconsideration." The plaintiff argued that signing the order might render the court functus officio, potentially precluding the reconsideration motion.

The defendant argued that the pronouncement of judgment was final and the order should be issued without delay.

The court decided to sign the order, issuing a fiat for its issuance and entry, clarifying that this decision did not determine the functus officio or abuse of process issues, which would be addressed in the context of the plaintiff's omnibus reconsideration motion.