David Hamer

The Ontario Land Tribunal held a first Case Management Conference regarding an appeal of the City of Toronto's refusal of a Zoning By-law Amendment application to permit a 35-storey residential building.

The Tribunal granted Party status to three entities and Participant status to two individuals on consent.

A second Case Management Conference was scheduled to finalize the Procedural Order and Issues List.

The respondent to an application for recognition and enforcement of a foreign arbitral award moved to adjourn enforcement pending the outcome of an annulment proceeding in the originating jurisdiction.

The court considered Articles 35 and 36 of the UNCITRAL Model Law incorporated into the International Commercial Arbitration Act.

Applying the balance of convenience approach developed in Canadian jurisprudence, the court held that only an "issue to be tried" was required and that the possibility of the award being set aside justified a temporary adjournment.

However, given the low likelihood of success in the annulment proceeding and the validity of the award, the court exercised its discretion to require partial security as a condition of the adjournment.

The plaintiff was injured in a skiing accident and subsequently underwent spinal surgery performed by the defendant.

During the surgery, an instrument slipped, causing further nerve damage.

The defendant informed the plaintiff of the surgical accident the following day.

The plaintiff commenced an action against the ski resort but did not sue the defendant until nearly five years later, after receiving an expert report from the ski resort's counsel suggesting the defendant breached the standard of care.

The defendant moved for summary judgment on the basis that the action was statute-barred.

The court granted the motion, finding that the plaintiff failed to exercise due diligence in investigating the surgical accident, and the claim was discoverable well before the receipt of the expert report.

The defendants brought a motion seeking dismissal or a stay of an Ontario action arising from a landslide at a Costa Rican gold mine, arguing that Costa Rica or Colorado was the more appropriate forum under the doctrine of forum non conveniens.

The court applied the principles articulated by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda and Breeden v. Black.

While the moving defendants established certain connections between the dispute and the proposed foreign forums, they provided little evidence regarding the characteristics of those forums or how litigation there would be fairer or more efficient.

The court held that merely identifying geographical connections and residence locations was insufficient to meet the burden of demonstrating that an alternative forum was clearly more appropriate.

As the evidentiary record did not establish that either Colorado or Costa Rica was better positioned to resolve the dispute, the motion was dismissed.

The appellant, an Ontario mining company, sued American engineering consultants for negligent misrepresentation regarding studies for a Costa Rican gold mine.

The defendants successfully moved to stay the action for lack of jurisdiction.

On appeal, the Court of Appeal found that the tort of negligent misrepresentation was committed in Ontario, as the studies were received and relied upon at the appellant's Toronto head office.

This established a presumptive real and substantial connection that the defendants failed to rebut.

The appeal was allowed and the matter remitted to determine forum non conveniens.

In a medical negligence action, the court addressed how the trial should proceed where liability was to be determined by a jury but a limitations defence invoking the doctrine of special circumstances was to be decided by the judge alone.

The defendants argued that the jury must hear all evidence or that the jury notice should be struck, asserting that the evidence relating to liability and the limitation issue was intertwined.

The plaintiffs proposed limiting the jury’s exposure to evidence related to liability and having the limitation issue addressed separately.

The court held that under s. 108(3) of the Courts of Justice Act it could direct that certain issues of fact be tried without a jury.

The trial was ordered to proceed in two phases: a jury phase determining liability followed by a judge-alone phase addressing the limitation issue and related evidence.

During the early stage of a medical negligence jury trial, the defendants brought an oral motion to strike the jury notice and discharge the jury.

The motion arose after the plaintiffs proposed that evidence relating to liability be heard by the jury, while evidence relating to a limitation defence and the doctrine of special circumstances be heard only by the judge.

The court considered whether such compartmentalization of evidence would make the trial unworkable or compromise fairness.

Emphasizing the importance of the substantive right to a jury trial and the substantial onus required to strike a jury notice, the court declined to discharge the jury at that stage.

The judge adopted a “wait and see” approach, permitting the jury to be excluded for witnesses whose evidence related solely to the limitations issue while reserving the decision regarding witnesses whose evidence might overlap both issues.

The defendant physician brought a motion seeking to disqualify the plaintiffs' counsel of record and for particulars regarding the plaintiffs' response to his limitations defence.

The defendant argued that the plaintiffs' counsel would likely need to testify regarding their due diligence to establish 'special circumstances' to extend the limitation period.

The court dismissed the motion for disqualification, noting the plaintiffs undertook not to call any current or former member of their counsel's firm as a witness.

The court also dismissed the request for further particulars, finding the draft amended statement of claim and the extensive summary judgment record provided sufficient detail.

The appellant appealed a trial judgment granting declaratory relief that limited the respondent's obligation to indemnify the appellant for royalties payable under a net smelter return royalty agreement.

The trial judge found the indemnification obligation was limited to a flat rate of 0.013% NSR, as indicated in the schedules to the purchase agreements, rather than the sliding scale royalty actually required by the underlying agreement.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusion that the specific references to the 0.013% NSR rate reflected the parties' intention and overrode general references to assuming all obligations.

The appellants appealed the dismissal of their medical malpractice action following the death of their infant son from a bowel obstruction shortly after being discharged from the emergency room.

The trial judge had made adverse credibility findings against the appellants, accepted the respondent physician's evidence, and relied on the respondent's expert opinion that the standard of care was met.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his assessment of the expert evidence regarding the standard of care.

The plaintiffs' medical malpractice action was dismissed at trial, but the trial judge assessed damages totalling $35,000 across multiple plaintiffs.

The plaintiffs appealed to the Divisional Court, which transferred the appeal to the Court of Appeal due to the total assessed amount exceeding its $25,000 monetary jurisdiction.

The plaintiffs moved to quash the appeal and transfer it back to the Divisional Court, arguing that each plaintiff's individual claim was under $25,000.

The Court of Appeal dismissed the motion, holding that all dismissed claims must be added together to determine the total assessed amount for the purpose of appellate jurisdiction under section 19 of the Courts of Justice Act.

The respondent purchased timber from the Crown and harvested it pursuant to a licence under the Crown Forest Sustainability Act, 1994.

The price included a Residual Value Charge (RVC).

The respondent successfully applied for a declaration that the RVC was an unlawful tax.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the application judge erred in applying the test for distinguishing regulatory charges from taxes.

The RVC is a proprietary charge and a legitimate component of the price of timber set by the Crown as owner of the resource, not a tax.

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

The trial judge found the surgeon negligent for failing to obtain informed consent by not disclosing alternatives to surgery, but dismissed the action on causation, finding a reasonable person in the patient's circumstances would have proceeded with the surgery anyway.

The Court of Appeal upheld the trial judge's causation analysis, noting the surgeon had no legal obligation to make a specific recommendation for or against elective surgery, and the evidence supported the finding that the patient was 'surgery ready' and would have accepted the procedure.

The appellant surgeon appealed a trial judgment finding him negligent in the performance of a mediastinoscopy, during which he unintentionally biopsied the respondent's oesophagus.

The trial judge had rejected the negligence theories advanced by the respondent's expert but found negligence on two unpleaded grounds: failure to take a smaller biopsy and failure to differentiate the oesophagus from the lymph node.

The Court of Appeal allowed the appeal, finding that the trial judge's conclusions were based on a manifestly incorrect finding of fact regarding biopsy size and inferences unsupported by the expert evidence.

The action was dismissed.

The appellant obstetrician appealed a trial judgment finding him liable for negligence in the delivery of the respondent's child.

The trial judge found that the appellant fell below the standard of care by improperly using forceps, which caused injuries to the respondent's uterus, and by negligently suturing the injuries, which occluded her ureter.

The Court of Appeal dismissed the appeal, holding that the trial judge made no palpable and overriding errors in his factual findings and properly relied on the evidence of the respondents' expert.

The respondent, a diabetic, developed a foot sore and consulted the appellant physician, who failed to examine the foot or arrange follow-up care.

The sore became infected, leading to a below-the-knee amputation.

The trial judge found the physician negligent and held that the negligence denied the respondent a 'window of opportunity' to save her leg.

On appeal, the Court of Appeal reversed the decision, finding that the respondent failed to prove causation on a balance of probabilities.

The medical evidence established only a loss of a chance to save the leg, which is not compensable in medical malpractice cases.

The CRTC appealed a Federal Court of Appeal decision that set aside its renewal of CTV's broadcasting licence.

The CRTC had imposed a condition requiring CTV to broadcast a specified number of hours of original new Canadian drama.

The Federal Court of Appeal held that the CRTC had jurisdiction to impose the condition but breached natural justice by not giving adequate notice of the specific condition.

The Supreme Court of Canada allowed the CRTC's appeal, holding that the CRTC had the jurisdiction to impose the condition under s. 17(1) of the Broadcasting Act and that there was no breach of natural justice, as CTV had sufficient notice that Canadian drama offerings would be discussed.

The Court also dismissed CTV's cross-appeal regarding the composition of the hearing panel.