Christine Windsor

The appellant City of Hamilton appealed a trial judgment finding it and ArcelorMittal Dofasco Inc. (AMD) jointly and severally liable for damages arising from periodic flooding of the respondent National Steel Car Limited's industrial property caused by wastewater discharge into a clogged drainage channel.

The trial judge awarded compensatory damages of approximately $5.3 million (apportioned equally between the defendants), punitive damages of $400,000 against the City and $500,000 against AMD, and granted a mandatory injunction requiring remediation and maintenance of the channel.

The City appealed on four grounds: (1) the equal apportionment of liability; (2) failure to find mitigation by National; (3) the punitive damages award; and (4) the terms of the injunction.

The Court of Appeal dismissed the appeal except for a clarification to the injunction language.

The applicant developer brought a motion under Rule 49.09 to enforce a purported settlement agreement regarding a land dispute that was blocking a subdivision development.

The applicant argued that the parties had agreed on the essential terms of a land sale in exchange for the withdrawal of the respondents' objection.

The court dismissed the motion, finding that there was no mutual intention to be bound because several terms proposed by the respondents in a counteroffer, including the closing date, right of assignment, and registration of the agreement, were never accepted by the applicant.

The appellants appealed a trial judge's decision to reduce prejudgment interest on non-pecuniary damages from the presumptive 5% to 1.3%.

The Court of Appeal found the trial judge erred by misinterpreting the statutory scheme under the Courts of Justice Act and Rules of Civil Procedure, failing to consider all mandatory factors under s. 130(2), and misinterpreting "changes in market interest rates." The Court clarified that the 5% rate is presumptive and can only be deviated from in unusual or special circumstances, with the onus on the party seeking deviation.

The appeal was allowed, and the 5% rate was reinstated.

This is an appeal in a medical malpractice case where the appellant, Dr. Marshall Zaitlen, challenged a jury's verdict finding him liable for damages to Sean Henry due to a delayed diagnosis of a spinal dural arteriovenous (SDAV) fistula.

The appellant argued that the jury's finding on the standard of care was unreasonable, their explanations for conclusions revealed non-judicial conduct, and the future income loss award was improper.

The Court of Appeal dismissed the appeal, affirming the jury's verdict.

The court held that the jury's conclusions on breach of standard of care and causation were reasonable and supported by expert evidence, emphasizing the high deference accorded to civil jury verdicts and their explanations when read holistically.

The court also found the damages award for future income loss to be reasonable and consistent with the evidence, allowing for a finding of early retirement due to the injuries.

The Ontario Trial Lawyers Association (OTLA) brought a motion for leave to intervene as a friend of the court in an appeal concerning the appropriate prejudgment interest (PJI) rate for non-pecuniary damages in a medical malpractice case.

The plaintiffs consented, while the defendant, Dr. Zaitlen, opposed.

The court granted OTLA leave to intervene on the issue of the analytical framework and evidentiary threshold for departing from the statutory PJI rate, but denied leave to make submissions on adequate notice, as it would improperly expand the scope of the appeal.

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

The defendant, Farm Mutual Reinsurance Plan Inc. (FMRP), brought a motion for security for costs against the plaintiff, 2496300 Ontario Inc. (249), under Rule 56.01(1)(d) due to 249's insufficient assets. 249 did not dispute its lack of assets but argued against the order due to FMRP's unreasonable delay in bringing the motion, FMRP's alleged causation of 249's financial state, and 249's strong chance of success.

The court found FMRP's delay unreasonable, limiting the security to future costs.

The court also found that 249 failed to establish a "good chance of success" in overturning its independent contractor agreement.

The motion was granted in part, ordering 249 to post $50,000 for FMRP's future partial indemnity costs and to pay $15,000 in partial indemnity costs for the motion itself.

The parties sought to settle the judgment following a jury trial in a personal injury action.

They disagreed on the wording of a consent reduction for a past loss of housekeeping award and the applicable prejudgment interest rate for non-pecuniary damages.

The court determined the wording of the order to reflect that the reduction was made pursuant to Rule 52.08 on consent.

Applying MacLeod v. Marshall, the court exercised its discretion under s. 130 of the Courts of Justice Act to reduce the prejudgment interest rate on non-pecuniary damages from the presumptive 5% under Rule 53.10 to 1.3%, finding that 5% would overcompensate the plaintiffs given historical market rates.

Following a 25-day medical malpractice jury trial, the plaintiffs were awarded damages of $1,918,491.96.

The defendant had made a pre-trial offer to settle the issue of damages for $2,150,000, which the plaintiffs rejected.

The defendant argued for a distributive costs award, seeking costs for the portion of the trial dedicated to damages.

The court held that an offer to settle only damages does not trigger the strict cost consequences of Rule 49.10(2) and declined to make a distributive costs award.

However, applying Rule 49.13 and Rule 57.01, the court reduced the plaintiffs' costs by 30% to reflect their divided success and the unnecessary lengthening of the trial on the damages issue, awarding the plaintiffs $800,000 in partial indemnity costs.

This post-verdict motion concerned the deductibility of long-term disability (LTD) and pension contribution benefits from a jury's award for past income loss in a medical malpractice action.

The defendant sought to deduct these benefits to prevent double recovery by the plaintiff.

The court dismissed the motion, finding that while the LTD benefits were an indemnity and the plaintiff did not prove direct contribution, the City's contractual right to reimbursement for any overcompensation negated the concern of double recovery.

The pension contributions were also found not to be an indemnity and thus not deductible.

In a medical malpractice trial against a single defendant neurologist for delayed diagnosis, the parties disagreed on the formulation of jury questions regarding causation and damages.

The trial judge ruled that the causation question must use the 'but for' test rather than 'caused or contributed', as the latter could confuse the jury in a single-defendant case.

The judge also ordered the jury to provide reasons for its finding on causation to ensure a rational analysis.

On damages, the judge ruled that mitigation and collateral benefits should be addressed in jury instructions rather than separate questions.

Finally, the judge removed the Estate's claim for past value of care from the jury due to insufficient evidence, but allowed the claim for past value of loss of housekeeping to proceed.

This decision provides reasons for rulings made during a medical malpractice jury trial concerning the admissibility of expert testimony under Rule 53 of the Rules of Civil Procedure.

The court addresses objections from both the plaintiffs and the defendant regarding whether expert opinions proffered in testimony exceeded the substance of their expert reports.

The rulings clarify the application of the 'latency' principle, which permits experts to explain and amplify opinions 'latent in' or 'touched on' by their reports, but not to introduce new fields of opinion without leave, especially where it would cause prejudicial surprise or undue delay.