Darryl A. Cruz

This costs endorsement follows the Court of Appeal’s decision allowing the appellants’ appeal in part.

The court found that the trial judge erred in requiring Mak Mera Limited to repay US$405,000 and in awarding $200,000 in defamation damages to James Bay Resources Limited.

The appellants were awarded costs of the appeal and, after submissions on trial costs, the court awarded the appellants $400,000 in trial costs, payable by James Bay, as a fair and proportionate amount in light of the appeal outcome and the parties’ relative success.

This appeal arose from a dispute between James Bay Resources Limited and Mak Mera Nigeria Limited regarding two agreements for oil and gas consulting services in Nigeria, as well as a claim for defamation.

The trial judge had ordered Mak Mera to repay US$405,000 in service fees, characterizing them as advances, and awarded James Bay $200,000 in defamation damages.

The Court of Appeal allowed the appeal, finding that the trial judge erred in her contract interpretation because the monetary payments were unconditional fees for services rendered, not repayable advances.

Additionally, the court reduced the defamation damages to a nominal award of $1,000 because the substantial award was unsupported by the evidence.

The plaintiffs brought a medical malpractice action against two pediatric neurologists for their treatment of an infant's intractable seizures in 2003.

The infant suffered from a rare condition, pyridoxine-dependent epilepsy (PDE).

The court found that the defendants breached the standard of care by setting an insufficient observation period during a pyridoxine empirical trial, improperly concluding the treatment was ineffective, and failing to reconsider pyridoxine when seizures returned.

The court also found the defendants breached their duty to obtain informed consent by failing to advise the parents of the trial and alternative treatment options.

The court concluded these breaches caused or contributed to the infant's severe intellectual and developmental delay.

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

The appellants appealed the dismissal of their medical malpractice action.

The trial judge found that the respondent breached the standard of care by discharging the appellant without reviewing an MRA, but concluded that this negligence did not cause the appellant's second, severe stroke.

The Court of Appeal upheld the trial judge's decision, finding no error in the admission of expert evidence and agreeing that the appellants failed to establish a prima facie case on causation, as the evidence did not show that treatment with Heparin would have been more effective than Aspirin in preventing the second stroke.

In a class action seeking certification against the Crown and two psychiatrists (Defendant Doctors) regarding treatment in a psychiatric hospital program, the plaintiffs moved for a partial discontinuance of the action against the Defendant Doctors.

The court granted the discontinuance, finding it to be in the best interests of the putative Class Members.

The decision was based on the lack of additional recovery from the doctors, the streamlining of the claim, the doctors' later involvement in the program, and their agreement to provide de bene esse examinations to preserve evidence.

The court confirmed that the discontinuance was not for an improper purpose and did not prejudice the class members or the co-defendant Crown, as the doctors' evidence remained available.

The plaintiffs sought costs following a successful 25-day medical malpractice trial where they "beat" a Rule 49 offer.

The defendants proposed a lower costs amount.

The court awarded the plaintiffs $3 million in costs, finding their request consistent with similar complex medical malpractice cases and justified by the defendants' conduct, which unnecessarily lengthened the proceeding and increased the plaintiffs' legal work.

The court considered factors under Rule 57.01, including the complexity of the case, the plaintiffs' complete success, and the defendants' late disclosure and attempts to introduce contradictory evidence.

The plaintiff suffered a life-altering stroke and sued the defendant physician for medical malpractice.

The defendant admitted to breaching the standard of care by failing to review a critical imaging report before discharging the plaintiff, which delayed the diagnosis of a vertebral artery dissection.

The sole issue at trial was causation: whether the delayed administration of anticoagulant therapy (Heparin) caused the plaintiff's second stroke.

After weighing competing expert medical evidence, the court found that while the defendant's negligence delayed the administration of Heparin, the plaintiffs failed to prove on a balance of probabilities that earlier treatment would have prevented the second stroke.

The action was dismissed.

The plaintiff suffered a catastrophic brain bleed and traumatic brain injury during an elective multi-step medical intervention for an asymptomatic brain AVM.

The plaintiff brought a medical negligence action against the treating physicians, alleging a failure to obtain informed consent.

The Superior Court of Justice found that the physicians failed to adequately disclose the cumulative risks of the multi-step procedure, the likelihood of requiring surgical resection, and the risks of conservative management.

The court concluded that a reasonable person in the plaintiff's position would not have proceeded with the intervention had they been properly informed, and held the physicians liable for the plaintiff's injuries.

This is an appeal in a class action concerning an infectious disease outbreak at a pain care centre.

The appellant, Dr. Stephen James, challenged the trial judge's findings of negligence, breach of fiduciary duty, and the application of the limitation period, as well as the award of punitive damages and costs.

The Court of Appeal upheld the trial judge's conclusions that Dr. James breached the standard of care by failing to consistently use aseptic technique and to report/investigate infections.

The court affirmed the use of statistical evidence to establish a rebuttable presumption of causation for the class, and found no error in the breach of fiduciary duty or the appropriateness of punitive damages.

The appeal on costs, including the order for Dr. James to pay the successful co-defendant nurses' costs, was also dismissed.

Following a 42-day medical negligence trial where damages were agreed at $12 million, the plaintiffs sought costs of over $4.5 million.

The court considered the complexity of the case, the high hourly rates of senior counsel, and the defendants' stout denial of liability.

The court awarded the plaintiffs $4,218,052.00 in partial indemnity costs and disbursements, payable two-thirds by the unsuccessful physicians and one-third by the hospital.

The court declined to make a Sanderson Order, instead ordering the plaintiffs to pay $250,000 in costs to the two successful defendant physicians.

This is an appeal from a medical negligence judgment.

The appellants, two doctors, challenged the trial judge's findings on standard of care and causation after Ms. Stevenhaagen suffered severe neurological injuries following an angioplasty procedure and subsequent aortic rupture.

The trial judge found the doctors liable for failing to consult a cardiovascular surgeon promptly and for transferring the patient to the Coronary Care Unit instead of directly to the operating room after temporary stabilization.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusions that the standard of care was breached and that this breach caused Ms. Stevenhaagen's injuries, applying the 'but for' test for causation.

The plaintiffs in a medical malpractice action brought a motion to exclude the defendants' expert witness, a vascular neurosurgeon and interventional neuroradiologist, on the basis of bias.

The court conducted a voir dire and reviewed the expert's reports, past testimony, and relationship with the defendant physicians.

The court found that the expert was not impartial, acted as an advocate, failed to disclose his professional and personal relationship with one of the defendants, and assumed the defendants' evidence was credible while ignoring the plaintiffs' evidence.

The court concluded that the expert was unable and unwilling to comply with his duty to the court and excluded his evidence in its entirety.

The plaintiff suffered a cardiac arrest and anoxic brain injury during an urgent caesarean section.

The plaintiffs sued the treating obstetricians, anesthesiologist, and the hospital for medical negligence.

The court found the initial obstetrician negligent for failing to diagnose the pregnancy early, failing to discuss termination, and failing to document severe risk factors associated with the plaintiff's morbid obesity.

The anesthesiologist was found negligent for prematurely converting to a general anesthetic and failing to adequately manage the airway, directly causing the cardiac arrest.

The hospital was found vicariously liable for a triage nurse's failure to follow protocols during a telephone call.

Liability was apportioned equally among the three negligent defendants.

This is an appeal from a Divisional Court decision that upheld a trial judge's refusal to enter judgment in accordance with a jury verdict in a medical malpractice case.

The jury found the defendant physicians negligent and that their negligence caused the plaintiff's severe disabilities.

The trial judge ordered a new trial, finding the jury's answers on causation insufficient.

The Court of Appeal allowed the appeal, holding that the trial judge erred in refusing to enter judgment.

The court emphasized the high standard for setting aside jury verdicts and the presumption that juries understand and apply judicial instructions, even if their answers are conclusory.

The judgment of $14.9 million in damages was reinstated.

The plaintiff brought a motion on consent for an order granting leave to discontinue the proposed class action without costs and without notice to putative class members.

The certification motion had previously been dismissed and the action continued as an individual action.

The court granted the motion, finding no prejudice to former proposed class members who had sufficient opportunity to bring their own claims, which were being case-managed together.

Following a five-week common issues trial in a medical malpractice class action, the plaintiff was entirely successful against the main defendant doctor.

The doctor had crossclaimed against several nurse defendants, but those claims were entirely unsuccessful.

The court ordered the doctor to pay the plaintiff's agreed-upon costs within 30 days, rejecting his argument to defer payment until individual trials were completed.

The court also made a Sanderson/Bullock order, requiring the doctor to pay the costs of the successful nurse defendants on a partial indemnity scale up to the date of their offers to settle, and on a substantial indemnity scale thereafter.

The plaintiff brought a class action against an anesthesiologist, a pain clinic, and its nursing staff following an outbreak of bacterial meningitis and epidural abscesses among patients who received epidural injections.

The court found that the anesthesiologist breached the standard of care and his fiduciary duties by failing to use proper aseptic techniques, failing to report and investigate infections, and misinforming patients about the risks.

The court drew an inference of causation linking the anesthesiologist's substandard infection prevention and control practices to the patients' infections.

The claims against the nursing staff were dismissed as there was no evidence they breached the standard of care.

The court also found the anesthesiologist's conduct warranted punitive damages.

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The appellant obstetrician appealed a jury's finding of negligence and causation in a birth injury case, arguing the jury misapplied the "but for" test and that the verdict was unreasonable due to lack of evidence on timely delivery.

The appellant also claimed the trial judge improperly questioned witnesses.

The Court of Appeal dismissed the appeal, affirming the jury's application of the "but for" test, finding the verdict reasonable based on expert evidence, and concluding the trial judge's questions were proper clarifications within established judicial protocol.