Carole J. Brown

The decision concerns a medical malpractice action brought by Scott Graham against Dr. Sheldon Berger and others, arising from care received at Bridgepoint Health following a motorcycle accident.

The plaintiff alleged negligence in failing to diagnose and treat osteomyelitis, resulting in prolonged recovery.

The court found that Dr. Berger met the standard of care, relying on expert evidence and the contemporaneous medical records, and that the infection was likely seeded before the plaintiff came under Dr. Berger’s care.

The action was dismissed.

The plaintiff, BizTech Institute Inc., brought an action for damages against the defendant, Star Medical Equipment Ltd., concerning the purchase of two ultrasound machines.

BizTech, a private career college, alleged the equipment was defective from installation, requiring extensive servicing but never functioning properly for its sonography training programs.

This led to additional training costs for students and the eventual replacement of the equipment.

The defendant contended the equipment was not defective and that the plaintiff did not rely on their advice.

The court found in favor of the plaintiff, concluding that the equipment was defective and breached implied conditions of fitness for purpose and merchantability under the Sale of Goods Act.

Damages were awarded to the plaintiff covering the cost of the equipment, financing fees, and student retraining costs.

The Bank of Montreal (BMO) sued corporate and individual defendants for $277,827.96, representing funds mistakenly deposited into the defendants' accounts and subsequently withdrawn.

The defendants failed to participate in the lawsuit after delivering a statement of defence.

The court found the defendants liable on the grounds of restitution for money paid under mistake of fact, and alternatively, conversion and unjust enrichment, ordering repayment of the funds, costs, and interest.

The applicants sought damages for water infiltration in their condominium unit against the vendor and the condominium corporation.

They alleged the vendor knew of the leakage prior to closing and the corporation delayed necessary repairs.

The vendor brought a counter-application for the release of a $75,000 holdback.

The court found that the vendor acted reasonably and responsibly upon discovering new leakage just before closing, and that the condominium corporation also acted reasonably and expeditiously within the constraints of the Tarion New Home Warranty Program, as the water infiltration was a complex, sitewide issue.

The applicants failed to provide sufficient evidentiary basis for their claimed damages and procedurally altered their requested relief at the hearing.

The application was dismissed, and the $75,000 holdback was ordered to be returned to the vendor.

The plaintiff sought to put several questions regarding pecuniary damages (past loss of income, future loss of income, future cost of care, housekeeping/home maintenance, and loss of competitive advantage) to the jury.

The court ruled that there was insufficient "reasonable evidence" to support these questions, as the plaintiff's evidence was too speculative, lacked specificity, and did not adequately account for contingencies or causation, especially given subsequent accidents.

Consequently, the judge dismissed the plaintiff's request to put these questions to the jury.

The defendant brought a threshold motion to dismiss the plaintiff's claim for non-pecuniary damages under s. 267.5(5) of the Insurance Act, arguing her injuries did not meet the "permanent serious impairment of an important physical, mental or psychological function" threshold.

Despite a jury finding the plaintiff 60% liable and the defendant 40% liable, and awarding $40,000 in non-pecuniary damages, the court granted the defendant's motion.

The court found the plaintiff's expert medical evidence unreliable due to incomplete and inaccurate information provided by the plaintiff, and the plaintiff's own credibility was significantly undermined by inconsistencies regarding her injuries, activities, and financial situation.

Consequently, the plaintiff failed to establish that her injuries met the statutory threshold, and her claim for general damages was dismissed as statute-barred.

The defendant brought a motion for a mistrial following the plaintiff's opening address to the jury.

The court found that the plaintiff's opening address contained inflammatory remarks, appeals to emotion, personal opinions, misstatements of fact, and improper references to the defendant's eye condition and the defendant's insurer.

The court determined that the cumulative effect of these improprieties created a real danger of prejudice and a miscarriage of justice, which could not be cured by jury instructions without negatively impacting the jury's perception of counsel and the plaintiff.

Consequently, the motion for a mistrial was granted.

This case concerns an action for wrongful dismissal, breaches of human rights legislation, and claims for moral and punitive damages.

The plaintiff, a former superintendent, alleged harassment and assault by tenants, leading to mental health issues and subsequent termination.

The court found the employer wrongfully dismissed the plaintiff, that the termination clause was unenforceable, and that the employer's defense of frustration of contract failed.

The employer was found to have breached its statutory obligations by failing to protect the employee from third-party harassment.

Damages were awarded for wrongful dismissal, human rights violations, and moral damages for the bad faith manner of termination.

Claims for intentional infliction of mental suffering and punitive damages were dismissed.

This action concerned a Distribution Agreement between MJL Enterprises Inc. (plaintiff) and SAL Marketing Inc. (defendant) for MJL's software, iSTAR.

The plaintiff sought damages for alleged breach of contract, including failure to market the software, non-payment of invoices for development work, and copying of software features.

The defendant maintained it was a standard distribution agreement, the software was not marketable, invoices were not properly approved per the contract, and no copying occurred.

The court found no breach of the Distribution Agreement by the defendant, that the invoices were not issued in compliance with the contract, and that there was no evidence of software copying, misrepresentation, fraudulent misrepresentation, or breach of confidence.

All claims for damages were dismissed.

The plaintiff developer entered into agreements of purchase and sale with the defendant for commercial properties, which included a mutual lease condition for a leaseback arrangement.

As the condition deadline approached, the defendant assured the plaintiff it would continue negotiating the leases but secretly sought board approval to sell the properties to a third party.

The defendant then terminated the agreements.

The court found the defendant breached its duty of good faith and honest performance, and was liable for negligent misrepresentation.

Applying promissory estoppel, the court held the defendant could not rely on its strict contractual rights to terminate.

The plaintiff was awarded $15.5 million in damages for lost profits.

Following a three-day trial in which the defendant was wholly successful in defending a solicitor negligence action arising from an alleged wrongful dismissal, the defendant sought costs on a partial indemnity basis.

The plaintiff argued for a lower amount based on their own trial costs and a prior security for costs order.

The court considered the factors under Rule 57.01, noting the importance of the issues to the defendant's professional reputation and the complexity of the taxation issues involved.

The court awarded the defendant costs in the requested amount of $51,299.61 all-inclusive, finding it reasonable and proportional.

The plaintiff landlords brought a summary judgment motion for unpaid rent and an eviction order against the defendant tenants.

The landlords had initially applied to the Landlord and Tenant Board (LTB) but withdrew the application after the arrears exceeded the LTB's $35,000 monetary limit and the tenants stayed an initial eviction order.

The tenants argued the Superior Court action was barred by section 207(3) of the Residential Tenancies Act, res judicata, and abuse of process.

The court rejected these defences, finding the LTB application was properly withdrawn and no final decision existed.

Summary judgment was granted for $89,773 in arrears, ongoing occupation rent, and a writ of possession.

The plaintiff, Metropolitan Toronto Condominium Corporation No. 1049, brought a motion to strike the defendant's statement of defence for failure to retain counsel, or in the alternative, to compel them to do so, pursuant to Rule 15.01(2) of the Rules of Civil Procedure.

The defendant, a corporation, was represented by its sole officer and director, who had been disbarred.

The court found that the defendant failed to provide sufficient evidence of authorization or financial inability to retain counsel, and that the proposed representative's past professional misconduct raised concerns about protecting corporate interests.

The motion was granted, ordering the corporation to retain counsel within 30 days, failing which its statement of defence would be struck, and awarded costs to the plaintiff and third party.

Aviva Canada brought a motion for default judgment against Toshera Harry for breach of contract, seeking to recover $36,126.40 paid out under an insurance policy.

Aviva alleged that Harry made misrepresentations in her insurance applications, rendering the policy void ab initio.

Harry failed to participate in the action, leading to her statement of defence being struck and her being noted in default.

The court granted default judgment, finding that Harry's default admitted the allegations in the statement of claim.

The Estate of Helen Martindale brought a medical malpractice action against two emergency room physicians, Dr. Lee and Dr. Chiu, alleging negligence in their diagnosis and treatment of Helen Martindale's perianal pain, which was later diagnosed as anal cancer requiring an ileostomy.

The plaintiff contended that the doctors breached the standard of care by failing to properly diagnose, investigate, and provide adequate follow-up.

The court found that both Dr. Lee and Dr. Chiu met the applicable standard of care, concluding that their assessments and treatment plans were reasonable given the patient's presentation and the circumstances at a community hospital.

The court also found the plaintiff's evidence unreliable regarding follow-up instructions and determined that no imaging was medically necessary at the time of the initial emergency room visits.

As no breach of the standard of care was found, the issue of causation was not determined, but the court noted that the plaintiff failed to prove that any alleged breach caused the need for an ileostomy.

The action was dismissed.

The plaintiff, a CPA, sued his former lawyer for breach of contract and solicitor negligence, alleging improper advice regarding tax liability on a forgiven employment loan.

The plaintiff claimed the lawyer failed to advise him that he would be responsible for taxes on a $125,000 loan forgiveness from his former employer, Gemstar, and that Gemstar had agreed to pay these taxes.

The defendant lawyer asserted he advised the plaintiff that the documents did not obligate Gemstar to pay taxes and that the plaintiff, as a CPA, was aware of the tax implications of loan forgiveness.

The court found the plaintiff's evidence unreliable and preferred the defendant's, concluding that Gemstar never agreed to pay the taxes and that the lawyer provided correct advice regarding the loan forgiveness extinguishing the debt.

The court dismissed the action, finding no breach of the standard of care or compensable damages, and no loss of a real chance to sue Gemstar or negotiate a better deal.

The respondent law firm moved to set aside an assessment order obtained by the applicants, arguing it was statute-barred, and sought payment of outstanding legal fees.

The applicants cross-moved for an assessment of all 32 accounts rendered over a four-and-a-half-year retainer.

The central issue was whether the accounts were "interim" or "final" for the purpose of limitation periods under the Solicitors Act.

The court found that the accounts were final, based on the parties' intention, regular payment without complaint, and the nature of the billing.

The court concluded that the assessment order was statute-barred and ordered the applicants to pay the outstanding legal fees.

The plaintiff, KEB Hana Bank Canada, sued the defendant, Gil Shcoylar, for breach of agreements of purchase and sale (APS) after the defendant repudiated an unconditional offer to purchase three properties and failed to pay a $100,000 deposit.

The defendant argued the agreements were not binding due to alleged lack of signature and that no damages were sustained as the properties were later sold.

The court found the APSs valid and binding, accepting the real estate broker's testimony over the defendant's contradictory denials of signature.

The court ruled that an unpaid, unconditional deposit can be forfeited, awarding the plaintiff the $100,000 deposit.

The applicant, Derek Van Doorn, brought a motion under section 10 of the Arbitration Act, 1991, seeking the court's appointment of an arbitrator to resolve an underlying law firm partnership dispute with the respondent, Loopstra Nixon LLP.

The partnership agreement mandated arbitration but lacked a procedure for arbitrator appointment.

The court considered three candidates proposed by the parties and ultimately appointed The Honourable Frank J.C. Newbould, K.C., finding him to be the best candidate given his extensive adjudicative and arbitral experience, particularly in law firm partnership disputes.

The plaintiff brought an action for specific performance of an agreement of purchase and sale for a commercial property.

The parties had negotiated the terms over several months and signed the agreement, along with a side letter allowing the defendant's lawyer 48 hours to review the legal wording.

The defendant subsequently attempted to renegotiate the business terms and ultimately repudiated the agreement when the property's value increased.

The court found that a binding agreement had been reached and that the side letter did not permit renegotiation of business terms.

Because the property was uniquely suited to the plaintiff's business needs and damages would be inadequate, the court ordered specific performance.