Daniel Girlando

The plaintiffs in a medical malpractice action requested an urgent case management conference to seek an extension of time to deliver their expert reports on income loss and liability.

The defendants opposed the extension, arguing the plaintiffs should be barred from delivering the reports due to their breach of the existing timetable.

The court granted the extension, finding that the timetable could be varied to allow the plaintiffs more time without reducing the time afforded to the defendants to deliver their responding reports, thereby preserving the scheduled trial date.

The appellants appealed an order from the motion judge dismissing a certification motion for class proceedings.

The Court of Appeal found that the motion judge's order was clear and unequivocal in dismissing only the certification motion, not the underlying claims.

Under section 30 of the Class Proceedings Act, an appeal from an order refusing to certify a proceeding lies to the Divisional Court, not the Court of Appeal.

Accordingly, the appeal to the Court of Appeal was quashed without prejudice to the appellants proceeding with the appeal in the Divisional Court.

The court conducted a case management conference in a medical malpractice action initiated in 2011.

The plaintiffs' renewed request to schedule a partial summary judgment motion against one physician defendant on liability was denied due to its partial nature, previous dismissal, and the plaintiffs' breach of an order to set the action down for trial.

The court provided specific directions for the action's progression, including allowing the plaintiffs to file a motion to extend time for setting down for trial, noting the discontinuance against Nurse Defendants, and scheduling further discussions on a de bene esse examination and expert report deadlines.

Following the dismissal of two proposed class action certification motions and a Rule 21 motion regarding the unauthorized sale of hospital patient contact information to RESP sales representatives, the successful defendants sought costs totaling over $690,000.

The Law Foundation of Ontario, which had indemnified the plaintiffs, argued that no costs should be awarded due to the novelty of the legal issues and the significant public interest in the protection of health privacy.

The court agreed, finding that the case raised novel questions about commercial liability for purloined patient information and engaged important public policy issues.

Applying section 31 of the Class Proceedings Act, 1992, the court exercised its discretion to make no order as to costs.

Two proposed privacy class actions arising from hospital employees’ unauthorized extraction of patient contact information for RESP sales leads were refused certification.

The court held that, on the actual evidentiary record, the disclosure of contact information alone, without disclosure of medical records or other objectively private information, could not support the tort of intrusion on seclusion because there was intrusion but no legally sufficient seclusion and no objectively highly offensive invasion.

Although certain claims, including a PHIPA s. 65 claim and some negligence theories against the hospitals and rogue employees, were arguable at the pleadings stage, there were no viable common issues and a class proceeding was not the preferable procedure.

Small Claims Court proceedings or PHIPA-related processes were found more proportionate for any remaining individualized claims.

The plaintiffs brought a Rule 21 motion seeking a declaration that Rouge Valley Health System was estopped from denying liability for various statutory and common law causes of action, based on an Order from the Information and Privacy Commissioner (PHIPA Order HO-013).

The court dismissed the motion, exercising its discretion under the doctrines of issue estoppel and abuse of process.

It found that applying issue estoppel would be procedurally and substantively unfair given the magnitude of the class action ($400 million) against a public institution, and the informal, discretionary nature of the administrative tribunal's proceedings, which focused on its privacy law mandate rather than complex civil law.

The court also noted that such an application would be inimical to the due administration of justice by discouraging settlements with the Commissioner.

The applicant filed a human rights application alleging discrimination based on creed.

He subsequently requested to amend his application to add the ground of disability, while the respondent requested a summary hearing to dismiss the application for having no reasonable prospect of success.

The Tribunal granted the applicant's request to amend, finding no significant prejudice to the respondent.

The Tribunal also granted the respondent's request for a summary hearing, directing that a teleconference be scheduled to determine if the application should be dismissed.

The appellants commenced a medical negligence action in 2015 against the respondents, which was dismissed on summary judgment as res judicata because it duplicated a 2011 action that had been struck as statute-barred.

The appellants appealed the summary judgment dismissal.

The Divisional Court issued a notice under Rule 2.1.01 considering dismissal of the appeal as frivolous, vexatious, or an abuse of process.

Receiving no submissions from the appellants, the court dismissed the appeal, finding it was a clear attempt to relitigate claims, including fraudulent concealment, that were finally disposed of in the prior proceeding.

The appellant employee appealed the dismissal of his motion for partial summary judgment in a wrongful dismissal action.

He argued the motion judge mistranslated a French termination clause in his employment contract and erred in finding it did not contract out of the Employment Standards Act.

The Court of Appeal acknowledged the translation error but found it immaterial, as the motion judge correctly understood the clause referred to minimum notice and intended to respect the Act.

Applying deference to the motion judge's contractual interpretation, the appeal was dismissed.

Following dismissal of a plaintiff’s summary judgment motion in a wrongful dismissal action, the court determined costs.

The defendant had made a written settlement offer that was more favourable to the plaintiff than the ultimate outcome and would have avoided further litigation.

The court held that although the strict cost consequences of Rule 49.10 did not apply to a successful defendant, the offer remained a relevant factor under Rules 49.13 and 57.01 in exercising discretion on costs.

The court also considered the plaintiff’s failure to proceed under the simplified procedure in Rule 76 despite the claim falling within its monetary threshold.

Partial indemnity costs were awarded up to the date of the offer and substantial indemnity costs thereafter.

The defendants moved for summary judgment dismissing a medical negligence action on the basis that it was res judicata and statute-barred under s. 38(3) of the Trustee Act.

The plaintiffs had previously commenced an essentially identical action arising from the same death, which had been dismissed as out of time and unsuccessfully appealed through the Divisional Court, the Court of Appeal, and the Supreme Court of Canada.

In the present action, the plaintiffs again alleged negligence, lack of informed consent, and fraudulent concealment.

The court held that the allegations had already been fully considered in the prior proceedings and raised no triable issue.

Allowing the claim to proceed would constitute an abuse of process and the limitation period under the Trustee Act applied.

The plaintiff brought a motion for summary judgment seeking a declaration that the termination provisions in his employment agreement were unenforceable and that he was entitled to common law reasonable notice.

The agreement limited termination notice to the minimum required by the Employment Standards Act, 2000 (ESA).

The court rejected arguments that the employer had repudiated the agreement or that the termination clause was void for contracting out of ESA minimum standards or for ambiguity.

Applying contractual interpretation principles and the agreement’s severability clause, the court held the termination provision valid and enforceable.

The motion was dismissed and the ESA-based termination provision governed the notice entitlement.

In a wrongful dismissal action, the plaintiff previously succeeded on a Rule 21 motion declaring a termination clause in the employment contract void for non‑compliance with the Employment Standards Act, 2000.

The court addressed the quantum of costs arising from that motion.

Applying Rule 57.01 of the Rules of Civil Procedure and the indemnity principle, the court held that partial indemnity costs were appropriate because any settlement offer relating to the broader litigation could not yet be considered.

While most hours and rates claimed were reasonable given the complexity and importance of the issue, some adjustments were warranted.

The court fixed the plaintiff’s costs of the motion and determined a conditional additional amount should substantial indemnity later be awarded by the trial judge.

This costs endorsement followed a Rule 21 motion in which the plaintiff had objected that disputed facts made the motion inappropriate.

The court accepted that the defendant's motion forced the plaintiff to address the enforceability of the termination provision to the extent permitted under Rule 21.

Applying the Rules and the Boucher costs framework, the court found it just and reasonable to award immediate costs rather than costs in the cause.

Partial indemnity costs of $4,714, inclusive of disbursements and applicable taxes, were awarded to the plaintiff.

The plaintiff brought a proposed class action for the common law tort of intrusion upon seclusion after hospital staff improperly accessed patient records.

The defendants moved to strike the claim, arguing that the Personal Health Information Protection Act (PHIPA) constitutes an exhaustive code that ousts the Superior Court's jurisdiction.

The Court of Appeal dismissed the appeal, holding that PHIPA does not create an exhaustive code.

The Act's language, its highly discretionary review procedure tailored for systemic issues, and its explicit contemplation of other proceedings indicate that the legislature did not intend to preclude common law claims for breach of privacy.

The appellant appealed a summary judgment dismissing his medical malpractice action.

The motion judge dismissed the action because the appellant failed to provide an expert report establishing causation or a breach of the standard of care, despite court-ordered timetables.

The Court of Appeal upheld the decision, finding no denial of procedural fairness and confirming that the appellant failed to meet his obligation to put his best foot forward by providing evidence on the essential elements of his claim.

The appeal was dismissed with costs.

The moving parties (plaintiffs in a proposed class proceeding for privacy breach) brought a motion to quash the defendant hospital's appeal to the Court of Appeal.

They argued the motion judge's order refusing to strike their claim for lack of jurisdiction under the Personal Health Information Protection Act was interlocutory, meaning the appeal should go to the Divisional Court.

The Court of Appeal dismissed the motion to quash, holding that an order refusing to dismiss or stay an action based on lack of jurisdiction over the subject matter is a final order, as it precludes the defendant from continuing to dispute jurisdiction.

Therefore, the appeal was properly before the Court of Appeal.

The plaintiff employee brought a motion to determine two questions of law following his dismissal without cause.

First, he argued that the termination clause in his employment contract was void because it excluded the continuation of group insurance benefits during the statutory notice period, contrary to the Employment Standards Act, 2000.

Second, he argued he was entitled to statutory severance pay because the employer's global payroll exceeded $2.5 million, even though its Ontario payroll did not.

The court agreed on both issues, finding the termination clause null and void for violating the Act's minimum standards, and ruling that the calculation of an employer's payroll under section 64 is not restricted to wages paid in Ontario.

A motion raised a question of law concerning the enforceability of a termination clause in an employment contract under the Employment Standards Act, 2000.

The clause limited termination compensation to base salary and excluded commissions and the continuation of benefits.

The court held the clause violated statutory minimum standards because it attempted to exclude the employer’s obligation to maintain benefit contributions during the statutory notice period under ss. 60 and 61 of the Act.

The court further interpreted s. 64 of the Act and held that an employer’s payroll for severance eligibility includes the wages of all employees, not only those in Ontario.

The termination clause was declared void and the employer remained liable to pay statutory severance.

This decision addresses costs following earlier rulings in related applications concerning a commercial lease dispute.

The court found that the responding party had taken an erroneous legal position regarding a mediated settlement and attempted to re‑litigate claims that had already been released.

The conduct led to withheld rent payments and triggered the opposing party’s applications to secure rent payment.

Given the unreasonable litigation position and unsupported allegations of fraud-like misconduct, the court held that costs on a substantial indemnity scale were appropriate.

Costs of $130,000 inclusive were awarded to the successful party.