Daniel J. Balena

The defendant, Dr. Allan Wojciech Jackiewicz, brought a motion for summary judgment to dismiss the plaintiffs' medical malpractice action, arguing it was statute-barred under the Limitations Act, 2002.

The plaintiffs alleged negligence during a surgery in January 2010, claiming they only discovered malpractice after a 2019 news article.

The court found that the plaintiffs had sufficient material facts by December 2010, and certainly by 2012-2013, to infer a plausible claim of liability, including knowledge of surgical complications, a non-consented procedure, and a 2010 news article about the defendant's professional misconduct.

The court ruled that the 2019 article provided no new material facts relevant to their specific claim and that the plaintiffs failed to act with reasonable diligence.

The motion for summary judgment was granted, and the action was dismissed as statute-barred.

The plaintiffs sought leave to amend their statement of claim to substitute "John Doe" and "ABC Corporation" with specific names (Michael George Alexander Mills and 564242 Ontario Limited) on the basis of misnomer, and also sought leave to bring this motion after the action was set down for trial.

The court dismissed the motion, finding that the plaintiffs had not provided a reasonable explanation for the extraordinary delay in identifying the correct defendants and bringing the motion, and that the proposed defendants would suffer non-compensable prejudice due to the lengthy delay.

The defendant brought a motion under Rule 21.01 to determine whether the plaintiff was barred from bringing a tort action under s. 267.6(1) of the Insurance Act for operating an uninsured dirt bike at the time of the collision.

The collision occurred on private property.

The court held that the plaintiff was not barred from suing, as the prohibition under the Compulsory Automobile Insurance Act only applies to uninsured vehicles operated on a highway at the time of the incident.

The motion was dismissed.

The defendant insurer, Unifund, brought a motion for summary judgment to dismiss the plaintiffs' claims against it.

The central issue was whether the plaintiff daughter resided with her mother at the time of a motor vehicle accident, which would entitle her to coverage under the mother's OPCF 44R Family Protection Endorsement.

The court reviewed evidence from examinations under oath and concluded that the daughter maintained her own separate residence and did not reside with her mother, despite frequently staying over to provide care.

The court found no genuine issue for trial regarding residency and granted summary judgment dismissing the action against Unifund.

The defendant brought a motion to transfer the action from the Durham Region (Oshawa) to the Toronto Region, arguing the motor vehicle collision occurred in Toronto.

The plaintiffs opposed, asserting that Oshawa was a more convenient venue, particularly due to one plaintiff's limited mobility and proximity to Oshawa.

The court applied Rule 13.1.02 of the Rules of Civil Procedure, emphasizing the plaintiff's prima facie right to choose venue and the moving party's burden to demonstrate that the proposed venue is "significantly better." The motion was dismissed as the defendant failed to satisfy this burden, especially considering the potential hardship to the plaintiff.

An appeal from a motion judge's order approving a $12.5 million settlement for a minor who suffered a severe brain injury in a high school rugby match.

The motion judge approved the overall settlement but reallocated funds to ensure adequate provision for the plaintiff's future care costs and reduced the solicitor's contingency fees from 30% to 20%, disallowing an additional $339,000.

The appellants challenged both the reallocation of funds and the fee reduction.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decisions regarding the allocation of funds for future care or the reduction of solicitor's fees.

This is a further endorsement on a motion for approval of the settlements of tort and accident benefit claims for a minor who sustained catastrophic injuries.

The court expressed concerns regarding proposed payments from the minor's settlement funds to her father for debts and home improvements, citing insufficient evidence and potential conflict of interest.

The court also reviewed the requested legal fees, reducing the contingency fee for the accident benefits claim from 30% to 15% to ensure fairness and reasonableness.

The proposed settlement was not approved as submitted, but the court outlined specific terms under which a revised settlement would be approved, prioritizing the minor's best interests.

The court addressed two applications: a motion for court approval of an accident benefits settlement for a minor, Stephan Markus, and a guardianship application by his mother, Natalie Nicholas.

The court approved the accident benefits settlement amount of $650,000 but reduced the legal contingency fee from 25% to 15% and disallowed a disbursement for clerk's time.

The court rejected the proposed management plan for the settlement funds and Natalie Nicholas's application to be appointed guardian of property, citing concerns about the plan's realism and internal inconsistencies in affidavits.

All settlement funds were ordered to be placed into a structured settlement and paid into court until an authorized guardian of property is appointed, with a new management plan required.

The defendants Mosstek Landscaping Inc. and Casey John Moss brought a motion for summary judgment to dismiss the plaintiff's personal injury claim, arguing that the limitation period had expired before they were added to the action.

The plaintiff contended that the discoverability rule applied, as she was unaware of their involvement in snow and ice removal until after the initial limitation period.

The court found that there was a genuine issue requiring a trial regarding whether the plaintiff exercised due diligence in discovering the landscaping defendants' identity.

The motion for summary judgment was dismissed, and costs were awarded to the plaintiff.

The moving party sought court approval of a proposed $650,000 accident benefits settlement arising from a motor vehicle accident that caused catastrophic brain injury to the plaintiff as a child.

The court reviewed the medical evidence, future care needs, and the proposed allocation of settlement funds, including structured settlement arrangements and funds to be managed by the plaintiff’s mother.

The judge identified significant concerns regarding the adequacy of the settlement relative to future care needs, missing medical and economic reports, unclear accounting for certain funds, and the proposed guardianship and care arrangements.

The court concluded that the evidentiary record was insufficient to determine whether the settlement was in the plaintiff’s best interests.

The proposed settlement was therefore not approved and the matter was ordered to return with further evidence.

The plaintiff, a seven-year-old student, suffered a catastrophic brain bleed after being punched in the head by another student during recess.

The plaintiff sued the school board and its staff for negligent supervision.

The court found that while the punch caused the brain bleed due to the plaintiff's pre-existing undiagnosed arteriovenous malformation, the school board and staff were not negligent.

The general supervision of the schoolyard met the standard of a careful and prudent parent, and the offending student's prior minor misbehaviour did not warrant closer supervision.

The action was dismissed.

During a trial regarding a schoolyard assault that allegedly caused the rupture of an arteriovenous malformation (AVM) in the plaintiff's brain, the plaintiffs moved to exclude an addendum to the defendants' neurosurgical expert report.

The plaintiffs argued the addendum, which contained statistics on the annual risk of an AVM bleeding, constituted a new 'crumbling skull' defence related to damages that was not properly pleaded or disclosed.

The court dismissed the motion, finding that the risk statistic was already patent in the expert's original report and had been accepted by the plaintiffs' own expert.

The court held that a medical fact relevant to causation for liability is equally relevant to the assessment of damages, and its use did not open a new medical field.