Carolyn Brandow

A medical malpractice action arising from the treatment of a young patient presenting with neurological symptoms at a rural hospital.

The physician failed to recognize the possibility of stroke, lowered the patient’s blood pressure aggressively, and delayed consultation with a tertiary neurology centre.

The court held that the physician breached the standard of care by failing to include stroke in the differential diagnosis, lowering blood pressure despite neurological signs, and delaying transfer for specialist assessment.

Applying the “but for” causation test from Clements v. Clements, the court found that the precipitous blood pressure reduction and delayed administration of heparin promoted clot formation which caused the catastrophic stroke.

The plaintiffs established causation on a balance of probabilities and were awarded damages.

During a medical malpractice trial, the defendants brought a motion under s. 12 of the Ontario Evidence Act seeking leave to call more than three expert witnesses.

The case involved allegations that an emergency room physician negligently failed to recognize stroke symptoms and delayed transfer for specialized care, allegedly resulting in quadriplegia.

The court considered factors relating to duplication, fairness between parties, necessity of additional expert evidence, and litigation cost.

Finding that the issues concerned only standard of care and causation and that three experts were sufficient to address them, the court concluded that allowing additional experts would create unnecessary duplication and disadvantage the plaintiffs.

Leave to call more than three medical experts was therefore refused.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was awarded costs of the appeal on a partial indemnity scale, fixed at $10,429.55 inclusive of disbursements and applicable taxes.

The Registrar appealed a Divisional Court decision upholding a Licence Appeal Tribunal order.

The Tribunal had revoked the registration of a real estate brokerage due to its involvement in mortgage fraud transactions, but allowed the principal broker to retain his registration subject to conditions.

The Registrar argued the Tribunal erred in its application of the test for revocation under section 10 of the Real Estate and Business Brokers Act, applied an incorrect standard of proof, and made erroneous findings of fact regarding the broker's knowledge of the fraud.

The Court of Appeal dismissed the appeal, finding the Tribunal's reasons were sufficient, it did not apply a quasi-criminal standard of proof, and it was open to the Tribunal to find the broker's past conduct did not warrant revocation despite findings of wilful blindness.

The applicant, who lives with HIV and Hepatitis C, alleged that the respondent orthopaedic surgeon discriminated against her on the basis of disability during a consultation for knee replacement surgery.

She claimed the respondent failed to physically examine her, inappropriately questioned her about her HIV status, and told her she was too young for surgery and would end up in a wheelchair.

The Tribunal found that the respondent likely did conduct a physical examination, that his questions about her HIV status were medically relevant to assessing surgical risks, and that his decision not to recommend surgery was based on her mild arthritis rather than her disability.

The application was dismissed.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal found that the respondent had not properly proved its default judgment.

Although this issue was not raised before the motion judge, the Court held it was in the interests of justice to set aside the default judgment to allow the appellant to contest the quantum of the claim and pursue a counterclaim for rental arrears.

The appeal was allowed, the default judgment was set aside, and the motion judge's costs award was varied.

The Registrar appealed a Licence Appeal Tribunal decision that declined to revoke a real estate broker's registration, instead imposing conditions.

The broker had been involved in transactions where properties were flipped at inflated prices, facilitating mortgage fraud, though the Tribunal found he lacked actual knowledge of the fraud.

The Divisional Court majority dismissed the appeal, finding the Tribunal reasonably assessed the broker's past conduct, including mitigating factors, and appropriately applied the balance of probabilities standard.

A dissenting judge would have allowed the appeal, finding the Tribunal applied the wrong standard of proof and failed to properly apply the statutory test for registration entitlement.

The infant plaintiff suffered a severe brain injury at birth in 2001.

The plaintiffs brought a timely action against several health practitioners.

In 2009, the plaintiffs' medical expert advised counsel of concerns regarding the infant's postnatal care, prompting a motion to add new defendants.

The motion judge dismissed the motion, finding the claims were not discoverable before January 1, 2004, and were therefore statute-barred under the new Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that the claims were discoverable before January 1, 2004, because a reasonable person acting as litigation guardian would have retained competent counsel to review the hospital records obtained in 2002.

Consequently, the former limitation period applied, which suspended the limitation period for minors, meaning the proposed claims were not statute-barred.

The appellant mother sued her son and daughter-in-law for repayment of a $52,000 loan, which she claimed was payable upon her turning 65 or retiring.

The respondents argued the money was a gift or, alternatively, a demand loan that was statute-barred.

The motion judge granted summary judgment dismissing the action.

On appeal, the Divisional Court found the motion judge made palpable and overriding errors by weighing evidence, evaluating credibility, and drawing adverse inferences without considering whether a trial was necessary in the interests of justice.

The appeal was allowed and the summary judgment set aside.

The Licensee brought a motion for a permanent stay of proceedings regarding a Notice of Proposal to suspend its liquor licence, arguing that the organizational structure and operational realities of the Alcohol and Gaming Commission of Ontario (AGCO) created a reasonable apprehension of bias.

The Licensee alleged a lack of administrative independence and institutional impartiality due to overlapping functions of the Chair, Board members, and the Registrar.

The Panel dismissed the motion, finding that the statutory framework, including the prohibition against prior consideration under s. 10(3) of the Alcohol and Gaming Regulation and Public Protection Act, 1996, and the operational realities of the AGCO maintained a clear separation between the adjudicative and investigative/prosecutorial functions.

The Panel concluded that a reasonable and informed person would not find a reasonable apprehension of bias.

The applicant requested reconsideration of a Tribunal decision that dismissed her human rights application.

She had failed to attend the original hearing because she was found unconscious and hospitalized due to a serious medical condition.

The Tribunal found that, in these exceptional circumstances, the interest in ensuring access to justice outweighed the public interest in the finality of Tribunal decisions.

The request for reconsideration was granted and a new hearing was ordered.

The Licensee brought a motion seeking further disclosure of records and an adjournment of the hearing into a proposal to suspend its liquor licence.

The Licensee argued that an adjournment was necessary pending a Freedom of Information appeal and due to counsel's unavailability.

The Board ordered disclosure only for substantive matters and denied the request for disclosure related to a pending bias motion.

The Board dismissed the adjournment request, citing the public interest in proceeding expeditiously and noting that the hearing dates had been agreed to unconditionally months prior.

The applicant alleged that the respondent, an orthopaedic surgeon, discriminated against her on the basis of disability (HIV and Hepatitis C) by refusing to perform knee replacement surgery and failing to conduct a proper physical examination.

The respondent requested the application be dismissed under s. 45.1 of the Human Rights Code, arguing the matter was already dealt with by the College of Physicians and Surgeons of Ontario (CPSO).

The Tribunal denied the request to dismiss, finding the CPSO did not appropriately deal with the human rights issues.

On the merits, the Tribunal found no evidence of discrimination, accepting the respondent's evidence that the applicant was not a candidate for surgery due to her knee condition, not her HIV or Hepatitis C status.

The application was dismissed.

The appellant applied to amend a municipal by-law schedule to permit a second adult entertainment parlour location.

The City refused the application because the proposed location abutted a residential property, contrary to the by-law.

The appellant appealed, alleging bad faith, misinterpretation of 'residence', and procedural unfairness.

The Court of Appeal dismissed the appeal, finding no bad faith, agreeing the abutting property was a residence despite being unoccupied during renovations, and concluding a full hearing would not have changed the outcome.

The applicant, a 9-1-1 Communications Operator, alleged discrimination on the basis of disability (depression) and marital status, claiming she was subjected to a poisoned work environment that forced her resignation.

She had requested a transfer to straight day shifts to accommodate her depression and to align with her spouse's new shift schedule.

The Tribunal dismissed the application, finding no medical evidence that her depression required accommodation or prevented her from performing her duties.

The Tribunal also found no differential treatment based on marital status and concluded her resignation was a personal choice rather than the result of a poisoned work environment.

The appellant tenant appealed from two orders: one dismissing her application to direct arbitration under a commercial lease, and another granting the respondent landlord a writ of possession.

The Court of Appeal dismissed the first appeal, finding that the arbitration clause did not apply to the dispute over a future lease after the original lease and extension agreement had expired.

The second appeal was quashed for want of jurisdiction under s. 78(1) of the Commercial Tenancies Act.

The defendant in a motor vehicle accident claim moved for the production of correspondence relating to the settlement of the plaintiff's other motor vehicle accident claims, arguing it was necessary to prevent double recovery for economic loss.

The court dismissed the motion, holding that the settlement negotiations were protected by settlement privilege and were irrelevant.

The court noted that the plaintiff's damages would be determined through a global assessment based on medical evidence, ensuring the defendant would only pay for the damages they caused.

The insured retained a public adjuster on a contingency fee basis to assist with a fire insurance claim.

The insured applied for a declaration that the adjuster's fees were a 'loss' under statutory condition 11 of the Insurance Act, and therefore subject to the appraisal process under s. 128.

The application judge agreed.

The insurer appealed, arguing that 'amount of loss' should be restricted to property damage.

The Divisional Court dismissed the appeal, finding that economic losses were covered by the policy and the enhancer endorsement, and that any ambiguity should be resolved in favour of the insured.

The appellant insurance company appealed an order refusing to bifurcate the trial of the plaintiffs' action on an insurance contract and for bad faith punitive damages.

The appellant argued bifurcation was necessary to protect it from disclosing privileged communications in the bad faith claim that could prejudice the contract claim.

The Court of Appeal dismissed the appeal, agreeing with the Divisional Court that there was no evidence the appellant would actually suffer the alleged prejudice, but left open the possibility of a further motion on appropriate evidence.

The appellants appealed a trial judgment awarding the respondent damages for the cost of repairing her coach house, which was damaged by vibrations from the appellants' construction project.

The Court of Appeal upheld the trial judge's findings on liability, concluding that the evidence supported a change in construction methods and causation.

However, the Court reduced the damage award by 10 per cent to account for savings if the appellants had performed the repairs themselves and for pre-existing defects.

The Court also disallowed pre-judgment interest on the damages to prevent over-compensating the respondent, as the damages were assessed based on the cost of repairs at the date of trial.