Bryan D. Rumble

The plaintiff underwent an incisional hernia repair surgery performed by the defendant general surgeon.

Following the surgery, the plaintiff developed a bowel leak requiring emergency repair and subsequent treatment for a fistula and wound infections.

The plaintiff brought a medical malpractice action alleging the surgeon breached the standard of care by failing to order bowel preparation, failing to 'run the bowel', and improperly repairing the bowel perforation.

The court dismissed the action, preferring the evidence of the defendant's expert witness and finding that the surgeon's conduct met the standard of care in all respects.

The court also found that causation was not established.

The decision addresses three mid-trial motions in a solicitor’s negligence action.

The plaintiffs sought leave to admit late-served expert reports and to call Ms. Tara Sweeney as a participant expert.

The defendant sought to limit the plaintiffs’ claim to damages arising from an alleged improvident settlement and objected to the plaintiffs calling multiple experts on the same issue.

The court held that the plaintiffs are precluded from advancing any theory of liability beyond the improvident settlement claim, denied leave to rely on the late-served expert reports, found Ms. Sweeney is not a participant or non-party expert, and permitted the plaintiffs to call both Mr. Will and Ms. Maitland-Carter as experts on Mr. Cardill’s standard of care, but not both Mr. Will and Ms. Sweeney on Mr. Good’s standard of care.

The plaintiffs brought a mid-trial motion seeking to prevent the defendant, John Cardill, from relitigating whether their former solicitor, Donald Good, breached the standard of care in settling their personal injury actions.

The plaintiffs argued that this issue had already been determined in a prior costs assessment by Justice Hackland.

The court reviewed the doctrine of abuse of process and concluded that it did not apply in this case, as Mr. Cardill was not a party to the prior proceeding and it would be unfair to bar him from making a full defence.

The motion was dismissed.

This decision addresses whether Anne Meehan, a plaintiff in the action, is competent to testify at trial.

The court held a voir dire to determine her testimonial competence, considering her ability to understand the nature of an oath or solemn affirmation and her capacity to communicate evidence.

Despite inconsistencies and some cognitive limitations, the court found that Ms. Meehan demonstrated the necessary capacities to perceive, recollect, and communicate, and ruled that she may testify on a promise to tell the truth.

The appellants appealed a trial judgment ordering them to pay $160,171.70 in quantum meruit for cottage renovation work and $256,163.05 in substantial indemnity costs.

The appellants argued the remediation work was a fixed-price contract and that quantum meruit should not apply to customized goods left in the contractor's warehouse after the appellants terminated the project.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the contract was not fixed-price and that the contractor was entitled to reimbursement for the customized goods.

The substantial indemnity costs award was upheld due to the appellants' unproven and aggressively maintained allegations of fraud.

The appellants, an investment syndicate holding a first mortgage, appealed an order denying their priority over a second mortgagee (Greenpath) for certain disputed amounts from a power of sale.

The application judge found these amounts were not properly part of the first mortgage and constituted prohibited penalties under s. 8(1) of the Interest Act.

The Court of Appeal dismissed the appeal, affirming that the forbearance agreement was separate from the first mortgage and not enforceable against the second mortgagee, and that the disputed prepayment and default fees were unlawful penalties under the Interest Act due to lack of evidence proving they were legitimate costs.

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

The plaintiff brought an action for solicitor's negligence against his former lawyer, alleging the lawyer negligently advised him to settle his statutory accident benefits claim for an inadequate amount and failed to investigate a potential catastrophic impairment designation.

The court dismissed the action, finding that the lawyer's investigation and negotiation of the settlement met the standard of a reasonably competent lawyer given the plaintiff's need for immediate funds, poor compliance with treatment, and the risk of benefits termination.

The court also found the plaintiff failed to prove that he would have rejected the settlement or achieved a better outcome had a catastrophic impairment assessment been recommended.

The parties made a consent request to adjourn the pretrial and fixed trial dates in a solicitor's negligence action.

The request was based on a recent order allowing the defendants to amend their Statement of Defence.

The court noted that the plaintiff had failed to serve an expert report on the standard of care despite the passage of eight years and a consent timetable.

The court dismissed the request, holding that fixed trial dates in Toronto are only adjourned in exceptional circumstances and that breaching timetabling orders does not justify an adjournment.

The defendants, former legal counsel for the plaintiff, brought a motion for summary judgment to dismiss the plaintiff's professional negligence action.

The plaintiff alleged the defendants breached the standard of care during an underlying personal injury trial by failing to advise him about an updated loss of income report and abandoning his future loss of income claim without instructions.

The court granted summary judgment, finding no genuine issue for trial.

The evidence demonstrated the plaintiff was aware of the supplementary report, understood the significant risks of proceeding to trial, and insisted on proceeding despite his lawyers' advice to settle or dismiss the action without costs.

The plaintiff initiated three actions stemming from a motor vehicle accident: a tort claim, an underinsured motorist claim, and a solicitor's negligence claim against his former lawyer.

The defendants moved to consolidate the actions and for a broad waiver of solicitor-client privilege and the deemed undertaking rule.

The court ordered the actions to be tried together or one after the other, at the discretion of the trial judge.

It denied the broad waiver of solicitor-client privilege and the deemed undertaking rule for information from the solicitor's negligence action for use in the other two actions, emphasizing the importance of privilege.

However, it dispensed with the deemed undertaking rule for information from the tort and OPCF actions for use in the solicitor's negligence action, and between the tort and OPCF actions.

The defendants in three related actions (a tort action, an OPCF underinsured motorist action, and a solicitor's negligence action) brought motions to consolidate the proceedings or have them heard together, and to dispense with the deemed undertaking rule.

The plaintiff opposed the inclusion of the solicitor's negligence action and the waiver of solicitor-client privilege.

The court ordered that the three actions be tried together or one after the other, subject to the trial judge's discretion.

However, the court held that the plaintiff's waiver of solicitor-client privilege applied only to the solicitor's negligence action and refused to dispense with the deemed undertaking rule for evidence obtained in that action, protecting the plaintiff's privilege in the tort and OPCF actions.

This endorsement addresses costs following the dismissal of two summary judgment motions: one by the City of Toronto against the plaintiffs, and another by the Toronto Terminal Railway Company in its cross-claim against the City.

The court, exercising its discretion under section 131 of the Courts of Justice Act, ordered that the costs of both motions be "in the cause." This decision was based on the principle that the merits of the action had not yet been determined, the work product from the motions would be useful at trial, and the moving parties could still be successful at trial, making an immediate costs award premature.

The plaintiffs initiated an action against the City of Toronto, Toronto Port Lands Company, and Toronto Terminal Railway Company following a bicycle accident on a path crossing railway tracks.

The City and Toronto Port Lands Company moved for summary judgment to dismiss the main action, while the Toronto Terminal Railway Company moved for summary judgment to dismiss the City's crossclaim for contribution and indemnity.

The court found that conflicting expert opinions on causation and standard of care presented genuine issues requiring a trial.

Furthermore, the court determined that granting partial summary judgment on the crossclaim would risk inconsistent findings and injustice due to the intertwined nature of the issues.

Both motions for summary judgment were dismissed, and the matter was directed to proceed to trial.

The plaintiff brought a motion to set aside the Registrar's administrative dismissal of the action for delay.

The defendant opposed, arguing prejudice due to document purging and a missing surveyor.

Applying the *Reid v. Dow Corning Corp.* test, the court found the plaintiff's explanation for delay less than compelling but accepted inadvertence for missing the deadline.

Crucially, the court determined there was no actual prejudice to the defendant's ability to defend the action, as necessary documents still existed and the surveyor's testimony was not essential.

The motion was allowed, and the plaintiff was given a new deadline to set the action down for trial.

The appellants appealed the dismissal of their negligence claims against their former lawyer, John Cardill, following a summary judgment motion.

The motion judge had determined that Cardill was retained only to assess the accounts of their previous lawyer, Donald Good, and therefore owed no duty of care regarding a potential negligence action against Good.

The Court of Appeal found that the motion judge erred by narrowly focusing on the written retainer agreement without examining all surrounding circumstances.

The court held that where a lawyer's duty of care is alleged to extend beyond the retainer, the court must meticulously examine all relevant circumstances, including the nature of instructions and client sophistication.

The appeal was allowed and the action was directed to proceed to trial.

The applicant sought judicial review of a decision by a Director's Delegate upholding an arbitration decision that denied him Loss of Earning Capacity Benefits (LECBs) under the 1994 Statutory Accident Benefits Schedule.

The applicant argued the Delegate's interpretation of s. 20.1 was unreasonable and that the provision violated s. 15 of the Charter by discriminating on the basis of age.

The Divisional Court dismissed the application, finding the Delegate's interpretation of the regulation was reasonable and that the applicant did not have a vested right to LECBs.

The Court also upheld the Delegate's finding that s. 20.1 did not create a discriminatory distinction based on age.

The appellant settled a tort claim arising from a motor vehicle accident on the advice of her former lawyer.

Years later, after retaining new counsel for her statutory accident benefits claim, she obtained a psychiatric report indicating her injuries met the catastrophic impairment threshold.

Her new counsel advised her to sue her former lawyer for recommending an improvident settlement.

The former lawyer successfully moved for summary judgment on the basis that the claim was statute-barred.

The Court of Appeal allowed the appeal, holding that the claim was not discoverable until the appellant received legal advice that the settlement was improvident, as her former lawyer had never advised her of any error.

The appellants appealed a summary judgment dismissing their legal malpractice action against the respondent lawyers.

The action alleged the respondents delayed applying for catastrophic impairment benefits and failed to advance Family Law Act claims for the injured party's brothers.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellants failed to put their best foot forward by providing evidence of damages not compensated by the underlying $1.4 million settlement.

Following the defendants' successful motion for summary judgment which dismissed the action, the parties made submissions on costs.

The parties had previously agreed that the successful party on the motion would receive $10,000 in partial indemnity costs.

The court found this agreement did not preclude the defendants from seeking additional costs for the dismissal of the action.

The court awarded the defendants an additional $15,000 in fees plus $3,873.92 in disbursements on a partial indemnity basis.