Deborah Berlach

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 plaintiffs brought materials seeking court approval of an infant settlement arising from civil litigation involving multiple defendants and a hospital.

The court invited submissions regarding the characterization of future care payments to the parents, whether settlement materials should be sealed, and whether the solicitor’s affidavit should be sealed and service waived.

The court held that the possible taxation of future care payments is a matter for the Canada Revenue Agency and not determinative for the approval motion.

Applying the open court principle and exercising parens patria jurisdiction, the court declined to grant a sealing order over the settlement documents.

However, the court permitted plaintiffs’ counsel to refile a substitute affidavit after service on opposing counsel.

In a medical negligence action arising from an infant’s diagnosis and treatment of meningococcal meningitis, the court was asked to determine whether correspondence between counsel created a binding settlement dismissing the claim against a hospital and several nurses without costs.

The plaintiffs argued the settlement was conditional on undertakings from co-defendants not to allege negligence against the hospital parties.

The court held that the October 12, 2012 letter was implicitly contingent on that condition precedent but found that the co-defendants’ later correspondence satisfied the required undertaking.

Accordingly, a binding settlement had been reached between the plaintiffs and the hospital defendants.

Because one plaintiff was a minor, the settlement remained subject to court approval under Rule 7.08 of the Rules of Civil Procedure.

In a proposed class action for alleged misconduct in the primary and secondary securities market, the defendant corporation was unresponsive to proceedings.

The insurers of the corporation's officers and directors brought a motion on behalf of the corporation to appoint a receiver to defend the claims.

The plaintiffs and other defendants did not oppose the appointment.

The court found it fair, just, and necessary to appoint a receiver and granted the order.

Following certification of a national class proceeding and dismissal of defendants’ summary judgment motions, the court determined costs arising from the certification and related motions.

The court applied Rule 57 of the Rules of Civil Procedure and principles governing costs in class proceedings, including fairness, reasonable expectations of the parties, and the access to justice objectives of the Class Proceedings Act, 1992.

The litigation involved extensive evidence, numerous defendants, and complex factual and legal issues affecting approximately 10,000 class members with alleged losses approaching $150 million.

The court rejected requests for substantial indemnity costs and declined to refer costs to formal assessment, instead fixing costs directly.

Significant partial indemnity costs and disbursements were awarded to the plaintiff, apportioned among the defendant groups.

In a medical negligence trial arising from a compromised birth, the plaintiffs alleged that labour and delivery nurses failed to meet obstetrical monitoring standards before a severe bradycardic event.

The court found that active labour had begun by at least 18:00, requiring half-hourly auscultation, and held the nursing care fell below the standard by failing to monitor appropriately, verify concerning findings, and escalate monitoring.

On causation, the court preferred expert evidence that a prolonged partial hypoxic-ischemic process likely developed before 21:00 and would probably have been detected with proper surveillance.

The court concluded earlier intervention would likely have prevented or substantially reduced the neurological injury.

The hospital was found liable, with damages previously admitted subject to approval.

The appellant municipality appealed a trial judgment finding it 40 percent liable for a bicycle accident on a public trail that rendered the respondent a quadriplegic.

The appellant argued the trial judge conflated the standard of 'reckless disregard' under section 4 of the Occupiers' Liability Act with the ordinary standard of reasonable care under section 3(1).

The Court of Appeal dismissed the appeal on the merits, finding the trial judge correctly applied section 4.

However, the Court allowed the appellant's appeal regarding costs, setting aside the trial judge's award of compound interest on expert fees.

The plaintiffs appealed a summary judgment dismissing their medical malpractice action against two paramedics and an ambulance service.

The motion judge had found that while the standard of care was a genuine issue for trial, causation was not, relying on the defendants' expert opinion that the patient's survival rate was only 2.4 percent.

The Court of Appeal allowed the appeal, finding that the motion judge erred in relying on the defendants' expert opinion because it did not address the plaintiffs' theory of the case, which posited that the patient would have survived had she been transported to the hospital immediately while she still had a heartbeat.

The Court concluded that both standard of care and causation were genuine issues requiring a trial.

The plaintiff brought a motion to certify a class action against the promoters, lawyers, and other entities involved in a charitable donation tax shelter scheme called the Donations for Canada Gift Program.

The Canada Revenue Agency had disallowed the charitable tax credits claimed by the participants, finding they lacked donative intent.

The defendants brought motions for summary judgment.

The court certified the action as a class proceeding, finding that the pleadings disclosed causes of action in negligence, negligent misrepresentation, fraud, conspiracy, breach of contract, and unjust enrichment.

The court dismissed the defendants' motions for summary judgment, concluding that a trial was required to fully appreciate the evidence and resolve the complex factual issues, including whether the contracts were vitiated by fraud.

Following settlement of a medical negligence action arising from a patient’s stroke while recovering from neurosurgery, the hospital pursued a cross‑claim for contribution under s. 2 of the Negligence Act against a nurse and her staffing agency employer.

The court found that the primary care nurse failed to properly assess neurological deterioration, failed to recognize hemiplegia, inadequately documented patient status, and failed to escalate concerns to obtain timely physician assessment.

The charge nurse also breached the standard of care by failing to properly assess the patient and failing to ensure that physicians were promptly paged and attended.

Applying the “but for” test with a robust and pragmatic approach to causation, the court inferred that earlier diagnosis and treatment of vasospasm would likely have reduced the extent of neurological injury.

Because the respective degrees of fault between the two nurses could not be determined, liability was apportioned equally under the Negligence Act.

Following a jury verdict in a medical negligence action, the court had issued written reasons on costs addressing the plaintiffs’ bill of costs and disbursements.

After the release of those reasons, counsel for the plaintiffs sent correspondence directly to the court seeking a further attendance and advancing additional arguments concerning expert disbursements that had been disallowed for lack of supporting information.

The court held that the correspondence constituted improper ex parte communication and an attempt to re‑argue the costs decision after final reasons had been issued.

The judge emphasized that the burden lies on the party claiming disbursements to demonstrate that they are reasonable and necessary and criticized counsel’s failure to provide sufficient supporting detail in the original materials.

The court refused to consider the contents of the letter and reaffirmed that the earlier costs decision was final.

The plaintiff suffered a cracked sacrum after a bed collapsed at the defendant hospital.

She later developed fibromyalgia, which the trial judge found was caused by the hospital fall despite an intervening car accident.

The trial judge awarded over $3 million in damages, including approximately $1.7 million for future care costs based on expert reports.

On appeal, the defendants challenged the liability finding and the future care costs.

The Court of Appeal upheld the liability finding, noting the trial judge properly applied foreseeability and the thin-skull rule.

However, the Court allowed the appeal in part regarding damages, reducing the future care costs award by $374,640.65 because several home maintenance items lacked evidentiary support.

The infant plaintiff suffered a severe brain injury at birth in 2001.

The plaintiffs brought a timely action against several health practitioners.

In 2009, the plaintiffs' medical expert advised counsel of concerns regarding the infant's postnatal care, prompting a motion to add new defendants.

The motion judge dismissed the motion, finding the claims were not discoverable before January 1, 2004, and were therefore statute-barred under the new Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that the claims were discoverable before January 1, 2004, because a reasonable person acting as litigation guardian would have retained competent counsel to review the hospital records obtained in 2002.

Consequently, the former limitation period applied, which suspended the limitation period for minors, meaning the proposed claims were not statute-barred.

The appellants appealed the dismissal of their medical malpractice action against a hospital, nurses, and doctors following the birth of a child who suffered severe brain damage due to oxygen deprivation prior to an emergency Caesarean section.

The trial judge dismissed the action, finding that while there were shortfalls in care, the cause of the oxygen deprivation was unknown and therefore not caused by the defendants' negligence.

The Court of Appeal allowed the appeal and ordered a new trial on liability, holding that the trial judge erred in law by deciding the issue of factual causation before determining whether the standard of care was breached, and that the trial judge's reasons were insufficient to explain why the plaintiffs' theory of liability was rejected.

The plaintiffs in two medical malpractice actions against a hospital and nurses retained an expert witness who had previously been employed by the hospital and had received confidential solicitor-client information regarding the defence of the actions.

The hospital successfully moved to have the plaintiffs' counsel removed from the record.

The plaintiffs appealed.

The Court of Appeal dismissed the appeal, holding that the presumption that confidential information was imparted to the plaintiffs' counsel had not been rebutted, and that removal of counsel was the only appropriate remedy to protect the integrity of the administration of justice.

The appellant appealed an order regarding the interpretation of an insurance policy endorsement.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly resolved the ambiguity in Endorsement II to achieve commercial reality and reflect the reasonable expectations of the parties, rather than applying a strict rule of giving the same words the same meaning which would have rewritten the policy.

The appellant appealed a trial judge's ruling that he was entitled to only 90 days' notice upon the non-renewal of a contract.

The Court of Appeal dismissed the appeal, finding that because the contract allowed for termination during its term on 90 days' notice, the notice of non-renewal could not exceed 90 days.

The court also upheld the trial judge's finding that the appellant's records were too unreliable to establish anything more than nominal damages for the shortfall in notice.

The appellants appealed an order regarding a solicitor conflict of interest.

Leave to appeal was granted on a narrow issue regarding remedy.

The appellants conceded that if the appeal was limited to this single issue—specifically, whether precautionary measures could be put in place after the fact, without arguing that the presumption of receipt of privileged information did not apply—the appeal could not succeed.

The Divisional Court held that the appeal was limited to the narrow ground on which leave was granted and dismissed the appeal, awarding costs to the respondents.

The plaintiffs in two related medical malpractice actions sought leave to appeal an order removing their counsel of record.

The removal was ordered because plaintiffs' counsel retained an expert witness, a former hospital employee, who had previously been involved in the hospital's defence and possessed confidential, privileged information.

The Divisional Court granted leave to appeal on a single narrow issue: whether the plaintiffs should be afforded an opportunity to propose precautionary steps to mitigate prejudice before the drastic remedy of removing counsel is imposed.