Darryl R. Ferguson

The infant plaintiff suffered hypoxic-ischemic encephalopathy during childbirth, resulting in cerebral palsy.

The plaintiffs sued the hospital, physicians, and nurses for negligence during delivery.

The defendants refused to admit they owed a duty of care to the infant plaintiff, arguing that recent case law precluded such a duty.

The motion judge granted a declaration that a duty of care was owed.

The Court of Appeal dismissed the defendants' appeal, affirming the well-established principle that an infant, once born alive, may sue for damages sustained as a result of negligence during labour and delivery.

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

The respondents purchased shares in a company from Mader and subsequently sued Mader and the company's accountants, Peat Marwick Thorne, for misrepresentation and breach of fiduciary duty regarding the company's financial status.

The trial judge awarded damages against all defendants.

The accountants appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in finding a fiduciary relationship and that the purchasers did not rely on the accountants' financial statements, having preferred to rely on Mader's assurances.