Carole J. Brown

The plaintiffs, Bernard Finnigan and Ramon Suarez, brought a medical malpractice action against Dr. Edward Tat-Yee Lee, alleging failure to timely diagnose lymphoma and properly manage Mr. Finnigan's pain between November 2016 and January 2017.

The court found that Dr. Lee met the standard of care in his diagnosis, treatment, and pain management.

The decision emphasized that the doctor's clinical judgment was appropriately applied, that the "worst first" diagnostic principle is not the law in Ontario, and that the plaintiff's inconsistent reporting of symptoms contributed to the situation.

The action was dismissed.

The plaintiff brought a motion during trial for leave to withdraw an admission of fact contained in the Agreed Statement of Facts.

The admission was based on a handwritten note produced by the defendant.

Midway through the trial, the defendant produced new documentary evidence, including emails, that contradicted the handwritten note and the admission.

Applying the tripartite test under Rule 51.05 of the Rules of Civil Procedure, the court found that the new evidence raised a triable issue, provided a reasonable explanation for the withdrawal, and would not result in non-compensable prejudice to the defendant.

The motion was granted.

The plaintiff, a receptionist at an oral surgery clinic for 30 years, brought a wrongful dismissal action after her employment was terminated due to the defendants' retirement.

The court found that the conflict of interest and confidential information clauses in her employment contract violated the Employment Standards Act, rendering the termination provisions unenforceable.

The court awarded a 15-month notice period, reducing the agreed 18-month period by 3 months for a slight failure to mitigate.

The court also ruled that the plaintiff's CERB payments should not be deducted from her damages award.

The plaintiff sued a fitness instructor and gym for injuries sustained when an air-filled medicine ball bounced and hit her in the chin during a 'slam ball' exercise.

The plaintiff alleged the instructor was negligent for providing a bouncing ball without proper instruction or warning.

The court found that the instructor met the standard of care, having provided adequate verbal and visual instructions, and that using an air-filled ball was consistent with industry standards.

The action was dismissed, with the court concluding the plaintiff was the author of her own misfortune.

The applicants were wholly successful in an application regarding the control of a non-profit organization.

They sought their costs on a partial indemnity basis.

The court noted the respondents' unjustified delays, failure to respond to settlement offers, and improper conduct in locking the applicants out of corporate accounts.

The court rejected the respondent's argument of inability to pay and awarded the applicants costs fixed at $45,000 all-inclusive.

The plaintiff was wholly successful on an interim injunction motion and sought partial indemnity costs of $79,836.56.

The plaintiff argued costs should be awarded immediately as there might not be a trial, while the defendants argued costs should be reserved to the trial judge.

The court exercised its discretion to order costs in the cause, noting it is the preferable course for interlocutory injunctions, but allowed the parties to return for a costs determination if no trial is held within 18 months.

The plaintiffs, James Dick Construction Limited and Mara Limestone Aggregates Ltd., brought an action for damages arising from a fire loss involving two leased buildings.

The defendants, Courtice Auto Wreckers Limited et al., argued the claim was barred by the plaintiffs' covenant to insure.

The court found that the landlord's covenant to maintain general property insurance sufficient to cover replacement costs allocated the risk of loss, including fire, to the landlord, thereby barring the action against the tenants.

The court also found that the defendants did not breach the lease regarding sprinkler system maintenance and that their actions did not cause the damage.

Had damages been awarded, they would have been based on diminution in value, and private insurance proceeds would not have been deductible.

The applicants, co-founders of a not-for-profit organization, sought declarations and orders against the primary respondent and others for corporate governance breaches and misappropriation of corporate property.

The primary respondent unilaterally declared herself president, installed a new board, and locked the applicants out of corporate accounts, claiming the organization and its assets were part of her PhD study.

The court found the respondent breached corporate legislation, improperly removed directors, and misappropriated corporate property.

The court ordered the return of all corporate property and accounts to the organization and permanently enjoined the primary respondent from holding herself out as president, director, or member, or from using the organization for funding applications or making website changes.

The Attorney General of Ontario brought an application for a preservation order under the Civil Remedies Act, 2001, seeking to preserve $91,072 in Canadian currency and $510 in US currency seized from a suspected illegal gaming house.

The court found reasonable grounds to believe the currency constituted proceeds and/or instruments of unlawful activity, including operating a gaming house and firearm offenses.

The application was granted, and the seized funds were ordered to be preserved in an interest-bearing account until the final disposition of the application.

The plaintiff, 385277 Ontario Ltd., sought costs incurred on a contempt motion where the defendants were found to be in contempt of two previous court orders.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure, including the importance and complexity of the matter, counsel's experience, hours spent, proportionality, and the defendants' conduct.

Given the defendants' wilful defiance of court orders and their failure to make costs submissions, the court found the plaintiff's requested costs reasonable and proportionate.

Costs were awarded on a partial indemnity basis, with leave for the plaintiff to seek a top-up to substantial or full indemnity after trial.

The plaintiff bank brought a motion in writing for default judgment against the corporate borrower after it failed to deliver a statement of defence.

The borrower had defaulted on multiple credit facilities, including an operating facility, a Visa facility, and a master lease agreement.

The court reviewed the supporting affidavit and granted default judgment for the outstanding debts totaling over $2.3 million, plus costs.

The plaintiff brought an action against the defendants for fraud, breach of contract, negligence, and unconscionability arising from a series of private mortgages and a construction contract.

The individual defendant, acting as a trusted friend and financial advisor, induced the plaintiff to enter into a construction contract with a fictitious company and to take out multiple mortgages at high interest rates with his own lending company.

The construction work was abandoned, poorly executed, and failed to comply with the Building Code.

The court found that the defendants committed fraudulent misrepresentation, deceit, and negligence, and that the transactions were unconscionable.

The court set aside the mortgages and the construction contract, and ordered the defendants to pay damages for the cost of repairing and completing the construction.

Following the dismissal of the moving party's motion to strike, the successful responding parties sought partial indemnity costs of $36,269.19.

The moving party argued for a maximum of $15,000.

The court considered the factors under Rule 57.01, noting the public interest nature of the litigation, the complexity of the constitutional issues, and the reasonable delegation of work among counsel.

The court found the requested amount fair and reasonable and awarded costs of $36,269.19 to the responding parties.

The respondent sought costs of $85,885.03 on a partial indemnity basis following the applicant's unsuccessful application for leave to appeal an arbitral award.

The applicant argued costs should be capped at $40,000.

The court considered the factors under Rule 57.01, noting the issues were of moderate complexity and the parties' costs outlines were similar.

After making a slight reduction for duplication of work and excessive time spent by lead counsel, the court awarded the respondent costs of $79,000 all-inclusive.

The Crown sought a dangerous offender designation for the respondent, Danny Francisco Correa, following his convictions for voyeurism, attempted sexual assault, and possession of a weapon for a dangerous purpose.

The Crown also requested a determinate sentence and a 10-year long-term supervision order.

The respondent opposed the dangerous offender designation, arguing that the facts were ambiguous and that he did not pose a substantial risk of reoffence, suggesting a provincial sentence followed by probation.

The court found the respondent to be a dangerous offender, citing his demonstrated failure to control sexual impulses, the escalation in seriousness of his offences, and his lack of insight into his mental and sexological disorders (schizophrenia and pedohebephilia).

The court imposed a determinate sentence of two years in penitentiary (in addition to 2.5 years of pre-sentence custody) and a 10-year long-term supervision order, along with ancillary orders including a DNA order, a SOIRA order for life, and a 10-year firearm prohibition.

The decision emphasized the necessity of a supervised, compulsory treatment environment in a penitentiary due to the respondent's history of non-compliance and denial of his issues, concluding that a lesser measure would not adequately protect the public.

This endorsement concerns the costs of a successful Rule 21 motion brought by the defendants.

The court applied the principles of costs awards, including the factors under Rule 57.01 of the Rules of Civil Procedure, to determine fair and reasonable partial indemnity costs.

The defendants were wholly successful on the underlying motion, and their requested costs were found to be proportionate and within the parties' expectations.

The court awarded specific partial indemnity amounts to each successful defendant, payable by the plaintiff.

The applicant sought an order declaring her retainer and contingency fee agreements with the respondent law firm unenforceable, and for disgorgement of fees, or alternatively, an assessment of fees.

The respondent consented to the unenforceability of the contingency fee agreement and referral to assessment.

The court found a solicitor-client relationship existed and that the respondent was entitled to reasonable compensation on a quantum meruit basis, despite the applicant's rejection of a reasonable settlement offer.

The court fixed the fees and disbursements payable by the applicant to the respondent.

The applicants, seven youths residing in Ontario, brought an application challenging Ontario's cancellation of the Climate Change Act and its newly-enacted greenhouse gas reduction target under the Cap and Trade Cancellation Act, 2018.

They alleged that the target violates their rights under sections 7 and 15 of the Charter.

Ontario brought a motion to strike the application under Rule 21, arguing it disclosed no reasonable cause of action, was not justiciable, was based on unprovable speculations, depended on positive obligations, and that the applicants lacked standing for future generations.

The court dismissed the motion to strike, finding that the target and plan are reviewable by the courts, the claims are capable of scientific proof, the matter is justiciable as it challenges specific government conduct, the issue of positive obligations should be decided on a full evidentiary record, and the applicants meet the test for public interest standing at this preliminary stage.

The applicant condominium corporation brought a motion for an order declaring that the respondent breached the Condominium Act and the corporation's declaration and rules by renting her unit on Airbnb.

The respondent, who is the daughter of the unit owners and the registered resident, did not respond to the application.

The court found that the respondent breached the residential use restrictions and ordered her to immediately cease all short-term rentals, remove the Airbnb listing, and pay costs of $9,491.61.

The defendant lawyers, Kubeskran Navaratnam, Marilyn Reiter-Nemetz, and Ronald Lachmansingh, brought a motion to dismiss the plaintiff's claim against them under Rule 21.01(1)(b).

The plaintiff, 9383859 Canada Ltd., alleged negligence and false statements against the lawyers who represented adverse parties in a failed real estate transaction and subsequent litigation.

The court found that lawyers generally owe no duty of care to opposing parties, especially when the opposing party is represented by their own counsel.

The court also held that statements made in pleadings are protected by absolute immunity and that the claims were statute-barred.

Consequently, the motion was granted, and the claims against the defendant lawyers were struck without leave to amend, as they were deemed radically defective, frivolous, vexatious, and an abuse of process.