Darryl A. Cruz

Dr. Stephen Rose James sought leave to appeal portions of a motion judge's order that certified a class action and defined common issues, specifically regarding the wording of the breach of standard of care common issue and the certification of punitive damages as a common issue.

The court granted leave to appeal the breach of standard of care issue, finding serious debate regarding the procedure followed when the motion judge amended the common issue post-hearing without submissions.

However, leave to appeal the punitive damages common issue was refused, as it was deemed common to the class and not an issue extending beyond the parties' interests.

The plaintiff was diagnosed with breast cancer that metastasized to her bones.

She brought a medical malpractice action against her radiologist and general surgeon, alleging their negligence caused a nine-month delay in diagnosis.

The court found both doctors breached their respective standards of care: the radiologist failed to order further imaging for suspicious microcalcifications, and the surgeon failed to properly investigate discordant biopsy results or follow up on the original lump.

The court concluded that but for the delay, the plaintiff's cancer would have been diagnosed at Stage I and cured.

The plaintiff was awarded damages for pain and suffering, income loss, and Family Law Act claims.

The plaintiff sought certification of a class action and partial summary judgment against an anesthesiologist and a pain clinic following an outbreak of staphylococcus aureus infections among patients who received epidural injections.

The court certified the action as a class proceeding, finding the criteria under the Class Proceedings Act were met.

The court also granted partial summary judgment, finding that the physician breached his duty of care regarding infection prevention and control practices, which established general causation for the class and specific causation for patients whose infections were genetically linked to the physician.

The applicant, an almost 90-year-old man suffering from multiple severe, non-terminal medical conditions causing intolerable pain and suffering, sought judicial authorization for a physician-assisted death under the *Carter* constitutional exemption.

The court considered whether a medical condition must be terminal to qualify for such an exemption.

The Attorneys General took no position, while the respondent physicians supported the application.

The court granted the application, clarifying that a terminal illness is not a necessary precondition for a constitutional exemption for physician-assisted death, and that the death would not require coroner notification.

The plaintiff, Gregory Lennox, sued Dr. Andrew Burns for medical negligence following a colostomy reversal surgery that resulted in permanent disability, including femoral nerve damage and bowel dysfunction.

Lennox alleged failure to obtain informed consent, negligent surgical technique (including blunt dissection and failure to abandon the procedure), and negligent post-operative care for C-difficile infections.

The court found that Dr. Burns obtained informed consent, as the risks of not completing the procedure or femoral nerve damage were not material or foreseeable.

The court also found that Dr. Burns met the standard of care in his surgical technique and post-operative management, despite expert disagreement on some points.

While acknowledging the plaintiff's unfortunate outcome and the potential for femoral nerve damage to have been avoided if the surgery was terminated earlier, the court concluded that the plaintiff failed to prove negligence or causation for the majority of the claimed damages.

The action was dismissed.

The appellants brought motions to stay the construction of two wind turbine projects pending their appeals of the Environmental Review Tribunal's decisions upholding the Renewable Energy Approvals.

The court found it lacked jurisdiction under the Rules of Civil Procedure or the Environmental Protection Act to stay the Director's approvals directly, treating the motions as requests for interlocutory injunctions.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the appellants would not suffer irreparable harm prior to the appeal hearing, as the turbines would not be operational by then.

The motions were dismissed.

The appellants appealed the dismissal of their medical malpractice claim against a family physician for alleged negligence in prenatal care that resulted in the infant appellant being born with cerebral palsy.

The appellants argued the trial judge erred in rejecting their theories that the mother suffered from pre-eclampsia or elevated blood pressure, and that the physician was negligent in failing to induce labour or refer her to an obstetrician.

The Court of Appeal found no palpable and overriding error in the trial judge's findings that the physician met the standard of care and that the appellants failed to prove causation.

The appeal was dismissed.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld the College of Physicians and Surgeons' decision to take no action on her complaint against a physician.

The applicant alleged the tribunal failed to address all her allegations.

The Divisional Court dismissed the application, finding that the tribunal was not required to address every allegation and that its decision was reasonable based on the evidence.

The moving party, Prince Edward County Field Naturalists, sought to stay an order of the Divisional Court that reinstated a renewable energy approval for a wind energy project.

The project overlapped with the habitat of the endangered Blanding's turtle.

The Court of Appeal applied the RJR-MacDonald test and found that the proposed appeal raised serious issues of first impression in environmental law.

The Court also found that the moving party would suffer irreparable harm if the habitat was destroyed before the appeal could be heard, and that the balance of convenience favoured granting the stay.

The motion for a stay was granted.

The plaintiffs brought a medical malpractice action alleging that the defendant family physician's negligence during the mother's pregnancy and delivery caused the infant plaintiff to be born with cerebral palsy.

The plaintiffs argued the doctor failed to properly monitor the mother's hypertension, failed to refer her to an obstetrician, and negligently prescribed enalapril, an ACE inhibitor, shortly before birth.

The Superior Court of Justice dismissed the action, finding that the doctor met the standard of care of a family physician in the circumstances and that his clinical judgments were reasonable.

Furthermore, the court concluded that the plaintiffs failed to prove on a balance of probabilities that the enalapril or the mother's hypertension caused the infant's injuries, which were likely the result of an acute intrauterine event such as cord compression.

The appellant surgeon appealed a trial judgment finding him negligent in his care and treatment of the respondent patient.

The patient suffered severe complications, including nerve and artery damage, during surgery for Thoracic Outlet Syndrome.

The trial judge found that the surgeon failed to adequately disclose the risks of the surgery and that a reasonable person in the patient's position would not have consented had proper disclosure been made.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding informed consent.

The respondent doctor prescribed Accutane, a teratogenic drug, to the mother of the appellant child, relying on the father's 4.5-year-old vasectomy as birth control.

The vasectomy failed, the mother became pregnant, and the child was born with severe disabilities.

The child sued the doctor for negligence.

The Court of Appeal held that a doctor does not owe a duty of care to a future, unconceived child of a female patient when prescribing medication, as recognizing such a duty would create an impossible conflict of interest between the best interests of the future child and the best interests of the patient.

The appeal was dismissed.

The appellants appealed the dismissal of their medical malpractice action against the respondent gynaecologist.

During a laparoscopic bilateral oophorectomy, the appellant's colon was burned by a cautery instrument.

The trial judge found that the respondent caused the burn but concluded there was insufficient evidence to find he fell below the standard of care, as the appellants' expert did not address the specific location where the respondent testified he applied the cautery.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to decline to draw an inference of negligence given the gap in the expert evidence.

The appellant appealed the dismissal of her medical malpractice action against her family physician.

She alleged a lack of informed consent when the physician prescribed birth control pills without adequately discussing the risk of blood clots, after which she developed deep vein thrombosis.

The trial judge found a lack of informed consent but concluded that a reasonable person in the appellant's position would have taken the pill anyway, meaning the lack of disclosure did not cause her injury.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the objective test for informed consent.

The appellants suffered losses in their margin accounts with a securities dealer and sued the dealer.

They later sought to amend their claim to add the Investment Dealers Association of Canada (IDA) as a defendant, alleging negligence in its regulatory oversight.

The motions judge dismissed the motion, finding no reasonable cause of action.

The Court of Appeal dismissed the appeal, holding that the IDA, as a voluntary regulator, owes its duty to the public at large rather than to individual investors, and that policy considerations such as indeterminate liability negate any prima facie duty of care.

The appellants appealed an order declaring their construction lien invalid and vacating its registration.

The motion judge had invalidated the lien because the Affidavit of Verification lacked a completed jurat, despite subsequent evidence confirming it was properly sworn before a commissioner.

The Divisional Court allowed the appeal, distinguishing between the affidavit itself and the jurat, which merely provides evidentiary proof.

The Court held that subsequent proof of the proper completion of the affidavit is acceptable, and the lien remains valid.

The appellant employer challenged a wrongful dismissal award limited to quantum, arguing the trial judge erred on reasonable notice, stock option damages, and mitigation.

The majority held the trial judge effectively fixed a nine-and-one-half-month notice period, properly interpreted the stock option plan as contemplating lawful termination, and did not err by excluding mining claims staked during the notice period from the mitigation calculation.

The court found no basis to interfere with the damages assessment for lost stock option value.

A dissent would have allowed the appeal and dismissed the action.

The appellant employer appealed liability only from a wrongful dismissal judgment, arguing the trial judge applied the wrong legal test for constructive dismissal.

The court held that constructive dismissal is not confined to unilateral changes to a specific fundamental contractual term and may also arise where the employer's conduct objectively repudiates the entire employment relationship.

On the factual findings, a series of unjustified criticisms, warning letters, and probation made continued employment intolerable.

The appeal was dismissed with costs.

The appeal and cross-appeal were dismissed on consent.

The court made no costs order.

The endorsement contains no substantive analysis.

The respondent investment dealer entered into a fidelity insurance contract with the appellant.

After discovering employee fraud, the respondent filed a proof of loss.

The appellant rescinded the bond, alleging misrepresentation in the application, and later brought a motion for summary judgment arguing the respondent failed to commence legal proceedings within the 24-month contractual limitation period.

The Supreme Court of Canada restored the motions judge's summary judgment in favour of the appellant, holding that there was no genuine issue for trial regarding the discovery of the loss, and that the contractual limitation period survived the appellant's wrongful rescission of the contract.