Brooke MacKenzie

International medical graduates appealed the dismissal of their breach of contract action against the Royal College of Physicians and Surgeons of Canada.

The appellants sought a declaration that they had passed the Royal College's 2020 qualifying psychiatry exam and were entitled to certification for independent practice.

The trial judge dismissed the action, finding that the Royal College's 6.5% downward adjustment of exam scores was psychometrically justified.

The Court of Appeal found the trial judge's reasons were insufficient because she failed to meaningfully engage with contradictory expert evidence, did not address the breach of contract claim, and did not analyze whether the parties had entered into an enforceable contract or whether the Royal College breached its duty of good faith performance.

The appeal was granted and a new trial was ordered.

The appellants, a family, sued a hospital and medical professionals for medical malpractice after their son suffered a severe brain injury at birth.

The trial judge discharged the jury mid-trial and then dismissed the action.

On appeal, the Court of Appeal for Ontario found that the trial judge failed to provide adequate reasons for discharging the jury, which is a fundamental right.

The reasons were conclusory, did not explain which comments were prejudicial, or why corrective instructions would be insufficient.

The appellate court could not meaningfully review the decision.

Consequently, the appeal was allowed, and a new trial was ordered.

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The respondent's husband died during a follow-up angiogram as part of a clinical trial.

The respondent sued the principal investigator, Dr. Strauss, for negligence and breach of fiduciary duty.

The jury found breach of standard of care but no causation in negligence.

The trial judge found breach of an ad hoc fiduciary duty and awarded damages, stating causation was removed from the analysis in the fiduciary context.

The Court of Appeal allowed the appeal, holding that the trial judge erred by not examining causation in the fiduciary context.

The Court found no causal link between the alleged fiduciary breach and the loss, relying on the jury's finding on causation in the negligence claim, as the claims were based on substantially the same conduct.

The action was dismissed.

The appellants appealed a partial summary judgment order finding them liable for breach of contractual warranty and/or negligent representation arising from an inaccurate tree inventory attached to an Asset Purchase Agreement for the sale of tree farm assets.

The respondents claimed a shortfall of 83,106 saleable trees from the represented inventory of 236,341 trees.

The Court of Appeal allowed the appeal and set aside the liability finding, holding that the tree inventory was not a contractual representation or warranty but rather a description of purchased assets.

The court found that the respondents had expressly agreed through due diligence inspection provisions that they had satisfied themselves as to the quantity and quality of plant material, precluding subsequent claims of misrepresentation.

Dina Barrese brought a motion to disqualify Niman Gelgoot & Associates (NGA) from acting as counsel for Dominic Barrese, her former husband.

Dina had contacted NGA twice (in 2016 and 2019) with the intention of retaining them, disclosing sensitive personal and confidential information.

NGA subsequently accepted Dominic as a client.

The court applied the MacDonald Estate v. Martin test, finding that a previous solicitor-client relationship existed between Dina and NGA, leading to an inference that confidential information was imparted.

NGA failed to discharge the difficult burden of proving no relevant information was imparted.

The court emphasized the appearance of impropriety, especially in family law disputes, and granted the disqualification order.

The applicant sought a stay of execution of the Court of Appeal's order pending disposition of its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal had reinstated an arbitrator's multi-million-dollar damages award against the applicant for breach of a purchasing and management agreement relating to solar energy projects.

The applicant argued that the arbitrator exceeded his jurisdiction by awarding damages for lost profits.

The motion judge dismissed the stay application, finding that while the applicant met the threshold for a serious issue to be tried, the balance of convenience strongly favoured denial of the stay given the respondent's severe liquidity problems and existential risks if the stay was granted, as opposed to the applicant's substantial financial resources.

The appellant appealed an application judge's decision setting aside an arbitrator's award of $12.3 million in damages for lost profits.

The arbitrator had found that the respondent unlawfully terminated a purchase and management agreement by delivering a "Defunct Project Notice" in bad faith, thereby depriving the appellant of the value of awarded contracts.

The application judge had set aside the award, finding the arbitrator exceeded jurisdiction by awarding damages for lost profits, which were allegedly precluded by the contract's indemnity provisions.

The Court of Appeal allowed the appeal, holding that the arbitrator acted within jurisdiction by interpreting and applying the substantive provisions of the contract, and that section 46(1)3 of the Arbitration Act permits only limited review for jurisdictional error, not review of the merits of the arbitrator's decision.

The respondents appealed an order from the Superior Court of Justice directing a new trial on the basis that the jury's answers on causation were fatally flawed.

The moving parties brought a motion to quash the appeal, arguing that the order was interlocutory and therefore only appealable to the Divisional Court with leave.

The Court of Appeal held that an order directing a new trial is interlocutory in nature, as it does not finally determine the substantive rights of the parties but rather requires another trial for that purpose.

The appeal was quashed and transferred to the Divisional Court.

The defendants, Dr. L., Dr. S., and Hospital A, brought motions to strike portions of the plaintiffs' statement of claim, for partial summary judgment, and to bifurcate the trial in a medical malpractice action.

The plaintiffs alleged negligence and breach of fiduciary duty by Dr. L. for treating J.O. despite knowing or ought to have known of her incompetence, and for failing to disclose past medical errors and complaints.

The court partially granted the motion to strike, removing allegations of failing to disclose general information and past medical errors/complaints to the College of Physicians and Surgeons, but allowed claims of negligence and breach of fiduciary duty based on Dr. L.'s knowledge of her own deficiencies to proceed.

The motions for partial summary judgment and bifurcation were dismissed.

The court also ordered J.O. to provide consent for police records related to a Family Law Act claim.

Appeal from a trial judgment finding that a nurse and hospital were liable for negligence in the care of a newborn who developed kernicterus due to untreated hyperbilirubinemia.

The trial judge found the nurse breached the standard of care by failing to report jaundice to the resident physician and that but for this negligence, phototherapy would have been commenced earlier, preventing the development of kernicterus.

The appellants challenged the causation findings.

The Court of Appeal upheld the trial judgment, finding that the trial judge properly inferred causation based on expert evidence and the factual progression of the infant's condition, and that the appellants could not escape liability by pointing to hypothetical negligence of other physicians.

Alectra Utilities Corporation sought to set aside an arbitration award of $12.3 million in favour of Solar Power Network Inc. (SPN), while SPN sought to enforce it.

The arbitration arose from a dispute over the termination of a Fee-In Tariff Programme agreement (PAMA) by Alectra's predecessor, PowerStream, which the arbitrator found to be in bad faith.

The court upheld the arbitrator's jurisdiction to consider bad faith in the exercise of a contractual right, finding that the PAMA's "sole discretion" and "not subject to dispute" clauses did not insulate bad faith termination.

However, the court found the arbitrator exceeded his jurisdiction by awarding damages for loss of profits, as the PAMA explicitly excluded such damages for breaches of covenant, and SPN's claim was deemed a breach of an implied covenant of good faith.

Alectra's application to set aside the award regarding damages for loss of profits was granted, and SPN's application to enforce the award was denied.

Appeal from a trial judgment awarding damages for birth injuries caused by hospital negligence.

The trial judge found that hospital nurses negligently ruptured the membranes during delivery, causing the plaintiff to suffer hypotonic cerebral palsy with serious and permanent impairments.

The appellants admitted falling below the standard of care but contested causation and damages.

The trial judge awarded $5,568,393 in total damages, including $1,881,846 for future loss of income, and costs of $2,201,259.

The appellants appealed the damages award and costs decision.

The Court of Appeal upheld the trial judge's findings and dismissed the appeal.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

The appellant appealed a Divisional Court decision that reversed a Small Claims Court judgment finding wrongful termination.

The respondent employer terminated the appellant, a probationary employee, before completion of six months of employment without just cause.

The trial judge had disregarded the probationary clause in the employment contract, finding it was not properly communicated.

The Court of Appeal upheld the Divisional Court's reversal, holding that the probationary term was valid and unambiguous, and that probationary employees may be terminated without notice during the probationary period if the employer makes a good faith determination of unsuitability, provided the employee was given a fair and reasonable opportunity to demonstrate suitability.

The appellant received statutory notice as required by the Employment Standards Act, 2000.

An appeal concerning the disqualification of counsel due to an alleged conflict of interest arising from a lawyer's transfer between law firms.

The lawyer, who had worked extensively on an insurance coverage dispute for the plaintiff, transferred to the defendant's law firm where he would work closely with opposing counsel.

The court addressed whether an ethical screen could adequately protect the former client's confidential information given the intense working relationship between the two lawyers.

The appeal court upheld the disqualification, finding that while the firm had achieved technical compliance with professional guidelines, the spirit of those guidelines was absent and the presumption of inadvertent disclosure could not be rebutted by clear and convincing evidence.