Darla A. Wilson

In a medical negligence trial arising from elective refractive eye surgery, the court found the defendant ophthalmologist failed to obtain informed consent and breached the standard of care in performing RK surgeries with an excessively small clear zone, incisions extending into the limbus, and a later astigmatic keratectomy involving intersecting incisions.

The court accepted that these negligent procedures caused progressive corneal instability, irregular astigmatism, scarring, glare, fluctuating vision, and loss of depth perception that prevented the plaintiff from continuing to practise dentistry.

A later cataract surgery was found to meet the standard of care and did not materially contribute to the disability.

The court rejected arguments on mitigation, punitive damages, and deduction of privately purchased disability benefits, and awarded substantial damages including income loss, general damages, special damages, OHIP subrogation, and a Family Law Act award.

Following the dismissal of the defendant's motion for leave to serve and rely on a late expert report, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs of over $20,000, arguing the defendant's conduct warranted a punitive scale.

The court found the defendant's position on the motion was arguable and did not constitute an intentional breach of a prior order.

Applying the factors in Rule 57, the court awarded the plaintiff partial indemnity costs fixed at $10,000 plus HST.

The plaintiffs brought a motion for court approval of a proposed $47,500 settlement in a medical negligence claim arising from the death of their father and grandfather.

The court found the motion materials deficient, as they lacked information regarding the alleged negligence, liability issues, efforts to retain experts, and the nature of the relationship between the minor plaintiffs and the deceased.

The court directed plaintiffs' counsel to file a further affidavit addressing these issues before the settlement could be evaluated for reasonableness.

The applicant sought Rule 7 approval of a proposed settlement of $6,500 for a minor's accident benefits claim arising from a motor vehicle accident.

The court refused to approve the settlement due to counsel's failure to provide accurate information regarding an outstanding rehabilitation account and the litigation guardian's failure to remit insurance funds received to the rehabilitation centre.

The court ordered the minor's father to pay the received funds to the rehabilitation centre and directed counsel to provide further information regarding the unpaid balance.

Following the resolution of insurance coverage issues and the dismissal of the action against the uninsured motorist carrier, the plaintiffs sought costs thrown away on a substantial indemnity basis.

The plaintiffs argued the tortfeasor's insurer denied coverage for tactical reasons, necessitating a separate action.

The court rejected this argument, finding the insurer's denial of coverage due to lack of cooperation from its insured was reasonable.

The court awarded the plaintiffs partial indemnity costs of $3,500 plus $500 in disbursements for the extra discovery steps required, payable in the cause.

The defendant, Pacific Mortgage Group Inc., brought a motion seeking leave to introduce a late-served expert report from Duff & Phelps in a claim on a promissory note and counterclaim alleging undisclosed liabilities.

The court had previously issued an order precluding the service of expert reports due to the defendant's "cavalier and unacceptable" approach to compliance with the Rules of Civil Procedure.

The motion was opposed by the plaintiff and other parties, who argued that admitting the report would cause prejudice and further delay.

The court applied the three-part test from Gardner v Hann, considering the reason for non-compliance, its effects, and fairness in the circumstances.

Finding no adequate explanation for the delay, significant prejudice to the opposing parties, and a disregard for court orders, the court denied leave to introduce the expert report.

The applicants sought judicial review of the Ministry's decision to provide disability funding for the applicant's daughter through a transfer payment agency rather than directly to a family-run microboard.

The Divisional Court dismissed the application, finding that the Ministry's decision was reasonable, did not fetter its discretion, and did not breach procedural fairness.

The court held that the Ministry has broad statutory discretion to determine how to allocate and administer funding, and its reliance on transfer payment agencies for oversight and accountability was a reasonable exercise of that discretion.

This endorsement outlines a case management order for five consolidated actions arising from a motor vehicle accident.

The court, acting as case management judge, set a timetable for the remaining procedural steps, including the completion of examinations for discovery, answering undertakings, conducting defence medical examinations, and scheduling a mediation.

The order also directed counsel to circulate a draft consent order for trial of the actions together and to advise on the continuation of an action against a specific insurer.

In a medical negligence action concerning the birth of triplets with severe disabilities, the defendant Dr. Benzaquen brought a Rule 21 motion to dismiss the infant plaintiffs' "wrongful life" claims.

The plaintiffs argued the motion required a full evidentiary record and should be heard at trial.

The court determined that Rule 21 motions, which address questions of law on the pleadings, should generally be heard at the earliest date, prior to trial, to potentially dispose of claims or substantially shorten the trial.

The judge directed counsel to schedule the motion for October 2019 and confirmed a new trial date for March 2021, allowing for potential appeals of the motion decision before the lengthy trial.

This is the fifth endorsement in an application for infant settlement approval under Rule 7.

The court repeatedly refused to approve the $6,500 settlement due to inadequate materials and an outstanding rehabilitation account.

Counsel for the applicant failed to provide requested documentation and address concerns over seven months, including the non-payment of a rehabilitation account despite funds allegedly being disbursed to the infant's mother.

The court expressed severe disapproval of counsel's conduct and issued further orders compelling immediate action regarding the outstanding account and status updates.

The case addresses complex estate, property, and support issues arising from a three-way joint tenancy, an erroneous probate transfer, discoverability, and unpaid child support.

The plaintiff, Sui Sun Wong, abandoned his family and failed to pay child support, while the defendant, Mee Fong Wong, maintained the property.

The court found Sui's oral promise to transfer his property interest unenforceable but determined that Sui's transfer of his interest to his mother in trust severed his joint tenancy, leaving Mee and the mother as joint tenants.

Consequently, Mee inherited the mother's share upon her death.

The court also ruled that Mee's claims were not statute-barred due to fraudulent concealment and her vulnerability.

Mee was awarded unpaid child support arrears with compound interest, to be set off against Sui's share of the property sale proceeds, not exceeding his interest.

Stephanie Becker, a 14-year-old, was severely injured by shattering glass at a community centre.

She sued the City of Toronto for negligence under the Occupiers’ Liability Act, alleging the glass in an office door was annealed glass, not the required tempered safety glass.

The court found the City breached its duty of care by installing annealed glass, which did not meet minimum building code standards.

The injury was found to be caused by this breach and was reasonably foreseeable given the public nature of the centre and minimal supervision.

Damages were settled, and the case proceeded on liability.

The applicant brought a Rule 7 motion for approval of a $1,350,000 settlement of accident benefits claims for a party under disability.

The court approved the quantum but required further information regarding the proposed use of the settlement funds, directing the applicant to provide an affidavit addressing concerns raised by the Public Guardian and Trustee.

The court fixed nominal costs against the self-represented plaintiff following successful summary judgment motions by the defendants in a medical negligence action.

Despite the plaintiff's serious health issues and lack of means, the court found that the plaintiff's failure to secure expert reports and refusal to follow former counsel's advice necessitated the summary judgment motions, entitling the defendants to costs.

However, considering the plaintiff's inability to pay and the non-frivolous nature of the initial lawsuit, a nominal award was deemed appropriate.

This endorsement addresses case management issues in a long-standing action arising from a farm visit in 2005, particularly concerning the minor plaintiff Samuel Simpson who suffered significant cognitive and physical issues.

The court convened a case conference to establish a timetable for the delivery of expert reports, emphasizing the unacceptable delays in the case.

The judge ordered expedited efforts to obtain an MRI for the minor plaintiff and set specific deadlines for the service of expert reports on damages and liability for all plaintiffs and the defence.

The court also raised concerns about the minor plaintiff's representation after he turns 18 and directed counsel to make inquiries regarding a future litigation guardian.

The applicant's motion to oppose the confirmation of an Assessment Officer's Certificate of Assessment was deemed abandoned due to repeated non-compliance with court orders and failure to file materials.

The court declined a further adjournment request from the self-represented applicant and awarded costs of $10,000 plus disbursements of $880.48 to the respondent law firm on a partial indemnity basis.

The court heard multiple motions to strike claims against Her Majesty the Queen in Right of Ontario (HMQ), various Children's Aid Societies (CAS), and an expert witness (Julia Klein).

These claims arose from the use of unreliable hair follicle drug testing by the Motherisk Drug Testing Laboratory in child welfare investigations and proceedings, leading to children's apprehension and, in some cases, Crown wardship.

The plaintiffs alleged negligence, breach of Charter rights, bad faith, and other torts against the defendants.

The court granted all motions to strike, finding that HMQ and the CAS did not owe a private law duty of care to the parents or children in their supervisory or investigative roles, as their paramount duty was to the child's best interests.

Many claims were also deemed impermissible collateral attacks on existing court orders.

The claim against the expert witness, Julia Klein, was struck due to witness immunity and a lack of causal connection between her testimony and the alleged damages.

The plaintiff, a Starbucks franchisee, sought an urgent interlocutory injunction to prevent the defendants (landlords) from interfering with its use of a "Disputed Space" essential for its operations at Hotel X. The defendants sought to terminate the tenancy, asserting the plaintiff was trespassing on the Disputed Space, which was not explicitly included in the lease but was built out and paid for by the plaintiff.

The court applied the R.J.R. MacDonald test, finding a prima facie case, irreparable harm to the plaintiff, and that the balance of convenience favored granting the injunction, subject to terms regarding rent and sharing of the space.

The judge convened a case conference regarding a proposed partial summary judgment motion by Defendants Gill and Freeway Auto Service to dismiss the action against them, which was opposed by Defendants Lorenzo and Martinez.

Citing Court of Appeal jurisprudence, the judge found the proposed partial summary judgment motion inappropriate due to the risk of duplicative proceedings and inconsistent findings of fact.

The judge suggested that a full summary judgment motion on liability for all defendants might be a more appropriate and efficient use of court resources.

The Plaintiffs brought a motion to exclude the report and viva voce evidence of the defence expert, Dr. Revie, or alternatively, to limit his evidence to the four corners of his report.

The Plaintiffs argued that Dr. Revie's report constituted oath helping, was merely a critique, failed to comply with Rule 53.03(2.1), and did not meet the common law test for expert evidence admissibility.

The court dismissed the motion, finding that the report, despite some unfortunate wording, did not amount to oath helping in this context, went beyond mere critique, and met the common law admissibility requirements under *Mohan* and *White Burgess*.

The request to limit Dr. Revie's evidence was declined for a pre-trial ruling.