Courtney Madison

The defendant moved for a stay of proceedings or an indefinite adjournment of the trial pending a Workplace Safety and Insurance Appeals Tribunal (WSIAT) Right to Sue Application.

The defendant argued that the plaintiff's claim might be barred under the Workplace Safety and Insurance Act.

The court dismissed the motion, finding that the defendant had delayed raising the defence for years, had previously represented that the WSIAT application would not delay the trial, and that an adjournment would cause significant prejudice to the plaintiff who was ready for trial.

Plaintiff's counsel, Naimark Law Firm, brought a motion to be removed from the record and for a charging order in two related actions.

The plaintiff, Syed Hussaini, resisted the motion and sought an adjournment to file affidavit evidence.

The court found that the solicitor-client relationship had broken down and that the plaintiff had ample opportunity to file responding materials, noting a history of delay tactics.

The motion for removal and a charging order was granted, and costs were awarded to Naimark Law Firm.

The appellant, Patricia Ann Smith, appealed the dismissal of her medical malpractice action against Dr. Brenda Kane.

The trial judge found no breach of the standard of care by Dr. Kane in her treatment of the appellant's foot complaints.

The appeal raised three main issues: misapprehension of expert evidence, failure to apply the "ordinary knowledge and common sense" exception to expert evidence, and error in failing to find a breach of the duty to diagnose.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of expert evidence, rejecting the application of the "common sense" exception as it was not raised at trial and the issues were complex, and clarifying that there was no freestanding duty to diagnose in this context given the specific concessions and causation findings.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

The plaintiff, a diabetic patient, brought a medical malpractice action against her family physician after requiring a below-knee amputation due to an undiagnosed neuropathic fracture (Charcot foot).

The plaintiff alleged the physician breached the standard of care by failing to order timely imaging or refer her to an orthopedic specialist.

The court found that the physician's treatment did not fall below the standard of care, noting that the condition was rare and not detected by other specialists who examined the plaintiff during the same period.

Although the court concluded that timely imaging would likely have saved the leg, the action was dismissed because the standard of care was not breached.

The plaintiff, catastrophically injured in a motor vehicle accident, sought statutory accident benefits in the form of retrospective attendant care benefits for a period between 2001 and 2006.

The motion asked the court to determine the date from which interest should accrue if those benefits were ultimately found to be payable.

The insurer argued interest could only begin after it received a Form 1 assessment of attendant care needs, relying on appellate authority interpreting the Statutory Accident Benefits Schedule.

The court held that under the applicable 2001 version of the Schedule, interest begins when the insurer had sufficient information to assess entitlement to the benefit, even absent a formal Form 1.

On the facts, the insurer had early knowledge of the claimant’s catastrophic impairments and attendant care needs.