Darla A. Wilson

This medical negligence action, commenced in 2011, involved allegations of negligent treatment by the plaintiff against the defendant hospital and physicians.

The action had been administratively dismissed twice and case-managed since 2018 due to the plaintiff's failure to deliver expert reports.

Despite multiple court orders and extensions, the self-represented plaintiff failed to provide expert evidence on standard of care and causation, which is required to establish negligence.

The defendants brought motions for summary judgment, which the court granted, dismissing the action due to the absence of a genuine issue for trial without expert opinions supporting the plaintiff's claims.

The plaintiffs in a long-standing medical malpractice action sought an adjournment of an 8-week jury trial, scheduled to commence April 15, 2019, due to a recent breakdown in counsel-client relationship and subsequent change of solicitors.

The defendants opposed the adjournment, emphasizing the age of the action, extensive trial preparation, and the significant delay a new trial date would entail.

The court, while expressing reluctance and noting that the change of counsel at the eleventh hour did not constitute an "exceptional circumstance" under the Toronto practice direction, ultimately granted the adjournment on terms.

This decision was influenced by the complexity of the medical negligence case and the involvement of a party under disability, necessitating new counsel sufficient time to review the file and address critical issues like Medicare and Medicaid.

The court considered motions for approval of a tentative settlement in two tort actions and an order to continue without a litigation guardian, involving a plaintiff who suffered a serious brain injury.

The court found the motion records deficient, specifically regarding the plaintiff's current capacity and the clarity of proposed legal fees and disbursements.

Settlement approval was withheld, and counsel was directed to provide further documentation, including a certified capacity assessment and a detailed affidavit addressing the reasonableness of the contingency fee agreement.

This is the third endorsement on a Rule 7 Application seeking court approval of a minor's accident benefits settlement.

The court again refused to grant full approval of the proposed settlement distribution due to inadequate documentation regarding disbursements, unsubstantiated rehabilitation costs, and concerns about a potential conflict of interest involving the litigation guardian.

The proposed legal fee structure was also questioned.

While the court approved the $6,500 settlement amount, it ordered further specific information from the rehabilitation centre and the litigation guardian before determining the final terms of the judgment.

The applicant sought court approval under Rule 7 for a minor's accident benefits settlement.

The court refused approval due to deficient materials, specifically a lack of medical prognosis, insufficient treatment records, and inadequate explanation for proposed disbursements and payments to a rehabilitation centre.

The court directed counsel to provide detailed itemized lists and invoices to justify the proposed distribution of settlement funds.

The corporate defendant brought a motion to adjourn the trial date after its counsel was removed from the record shortly before trial.

The plaintiff and defendants by counterclaim strongly opposed the adjournment, arguing the defendant's principal had delayed in retaining new counsel.

The pre-trial judge determined she had jurisdiction to hear the adjournment request under Rule 50.07.

Despite finding the defendant's principal largely responsible for the delay, the court reluctantly granted the adjournment to allow the unrepresented corporation to retain counsel, noting this was the first fixed trial date and there was no evidence of prejudice.

The adjournment was granted on peremptory terms with costs thrown away awarded to the opposing parties.

Mark Gledhill, a declared vexatious litigant, brought a motion for leave to continue or commence proceedings under section 140(3) of the Courts of Justice Act.

The motion failed to comply with the specific procedural requirements set out in previous court orders, including the necessity of an affidavit outlining the merits of the proposed proceedings.

The court found that the applicant did not comprehend the ramifications of being declared a vexatious litigant or the required process for obtaining leave.

Consequently, the motion for leave was dismissed.

This endorsement addresses the protracted litigation of three third-party actions arising from fire losses, where the defendant Venmar Ventilation Inc. (third-party plaintiff) seeks payment from Fasco Industries Inc. (third-party defendant) for alleged defects in a motor.

The case management judge expressed frustration over the slow pace and non-compliance with previous court orders.

The judge issued new orders to compel both parties to complete outstanding productions, file trial records, and deliver expert reports to advance the matters to trial.

The plaintiff sought damages for injuries sustained in an unprovoked assault at a banquet facility.

Three defendants were noted in default.

Following an assessment of damages hearing, the court awarded the plaintiff $125,000 for pain and suffering, $25,000 for future treatment, $2,296.87 for an OHIP subrogated claim, and $50,000 for loss of competitive advantage, totaling $202,296.87.

The court also awarded costs of $67,390.82 against the defaulting defendants.

The Plaintiff and other parties sought costs for an aborted continued pretrial, which was rendered unproductive due to the non-attendance of a principal of the Defendants/Plaintiff by Counterclaim and their counsel, without timely notification.

The court found the non-attendance and lack of notice discourteous and a waste of time for counsel and the court.

Citing Rule 50.12 and 57.01 of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, the court ordered the Defendants/Plaintiff by Counterclaim to pay $12,000 in costs on a substantial indemnity basis.

This motion concerned an application by the law firm Clyde & Co to be removed as counsel of record for the defendants, primarily Pacific Mortgage Group Inc., due to a breakdown in the solicitor-client relationship and the client's failure to pay accounts and provide instructions.

The client, a sophisticated litigant, opposed the motion, denying a breakdown and claiming prejudice due to the imminent trial date.

The court found the relationship irretrievably broken due to the client's uncooperative behaviour and failure to pay and provide instructions.

The motion to remove counsel was granted, and the trial date was maintained, with no prejudice found to the client given his sophistication and prior knowledge of the issues.

This endorsement addresses a personal injury action where counsel failed to adhere to agreed-upon timetables for expert reports and did not proceed with a consent motion to transfer the action.

The plaintiff's solicitor also failed to disclose a subsequent accident with overlapping injuries.

The court found counsel's conduct unacceptable and struck the action from the trial list, imposing conditions for its restoration.

The applicant, Wawanesa, withdrew its application for a declaration of coverage and duty to defend, leading to a costs dispute.

The respondent, Dominion, sought costs for work incurred.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, found that costs should follow the event, as Wawanesa abandoned its application.

Despite Dominion's excessive costs claim, the court fixed costs at $10,000 plus HST and disbursements, deeming it a fair and reasonable amount for the unsuccessful applicant to pay.

The plaintiff leased a seven-year-old used vehicle from the defendant and subsequently experienced numerous mechanical issues.

The plaintiff brought an action for negligent misrepresentation and breach of contract, alleging the defendant tampered with the odometer and failed to disclose the vehicle's true condition.

The Superior Court of Justice dismissed the action, finding no credible evidence of odometer tampering or misrepresentation.

The court held that the plaintiff leased the vehicle 'as is', declined to purchase an extended service plan, and failed to prove that the mechanical issues were present at the time of the lease or caused a subsequent collision.

During a medical malpractice trial, the defendant physician moved for production of three expert reports obtained by the plaintiff's former solicitors in a related solicitor's negligence action.

The plaintiff opposed, asserting solicitor-client or litigation privilege.

The court determined the reports were subject to litigation privilege, not solicitor-client privilege, and that the plaintiff had implicitly waived this privilege by commencing the solicitor's negligence action and failing to challenge the former solicitor's defence pleading, which referenced these reports as central to denying negligence.

The motion for production was granted.

The Plaintiffs in a medical negligence action brought a motion seeking leave to admit an expert's affidavit and discovery transcripts of two family members (one deceased, one unwell) into evidence at trial.

The court dismissed the request to admit the expert's affidavit, finding it did not comply with Rule 53 requirements for expert reports and would unfairly deprive the defence of cross-examination.

However, the court granted leave to admit the discovery transcripts of the family members under Rule 31.11(6), subject to the Plaintiffs immediately quantifying their Family Law Act claims and providing the family doctor's notes for the relevant period to the defence, to ensure fairness given the inability of the family members to testify.

The defendant hospital requested that the plaintiff's action be dismissed as frivolous, vexatious, or an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The self-represented plaintiff's hand-written statement of claim alleged mistreatment and abuse by the defendants but failed to set out facts giving rise to a cause of action.

The court found the pleading to be frivolous, vexatious, and an abuse of process, and directed the Registrar to issue a notice to the plaintiff that the court is considering dismissing the action, while staying the proceeding in the interim.

This motion concerned the court's approval under Rule 7 of a structured judgment and legal fees for Jason Clive Walters, a catastrophically injured plaintiff.

The court reviewed a proposal to reduce the structured settlement funding and approve additional legal fees for appeal and guardianship applications.

The Public Guardian and Trustee (PGT) provided a report raising concerns.

The court denied the proposed reduction in structure funding, finding no justification for decreasing Walters' monthly payments.

It also significantly reduced the requested legal fees for the appeal and leave application from $205,000 to $70,000, concurring with the PGT's objection.

Furthermore, the court ordered the Pace Law Firm to return $34,363.09 that had been paid without court approval for ODSP and guardianship work.

The court emphasized the importance of a holistic approach to approvals for persons under disability and the court's role as gatekeeper.

The plaintiff law firm sued to recover outstanding legal fees and disbursements for services rendered on four different litigation matters between April and November 2016.

The defendants disputed the fairness and reasonableness of the fees, alleging substandard work and excessive hours.

The court, acting as if it were an assessment under the Solicitors Act, found the fees to be fair and reasonable, considering the complexity, urgency, importance to the client, skill demonstrated, and results achieved.

The court rejected the defendants' claims of poor advice and lack of value, noting the client's sophistication and awareness of accumulating costs.

Judgment was granted to the plaintiff for the outstanding balance plus interest.

The City of Toronto sought a declaration that Cloverdale Mall Inc. owned and was responsible for the maintenance of a bridge over the East Mall, or alternatively, if the City owned it, that it had the right to demolish it.

The bridge was built by Cloverdale's predecessor after land expropriation for Highway 427, with the province reimbursing construction costs.

The Minutes of Settlement from 1972 were silent on bridge ownership and maintenance.

Applying principles of contractual interpretation, the court found that the parties intended Cloverdale to own and maintain the bridge, as it served Cloverdale's private interests and the City's obligations were extinguished upon payment for construction.

The court also rejected the argument that the bridge was a fixture to City land, as its purpose was to enhance Cloverdale's property, not the City's.

The application was granted in favour of the City, with costs fixed against Cloverdale.