Dena N. Varah

This is a costs endorsement from the Court of Appeal for Ontario.

The parties settled the issue of costs for the appeal.

The appellant, Anna Barbiero, was ordered to pay the respondent, Dr. Sheldon Victor Pollack, $10,000 in costs, inclusive of disbursements and applicable taxes.

The appellant, Anna Barbiero, sought to overturn the dismissal of a 21-year-old certified class proceeding against Dr. Sheldon Victor Pollack for unlawfully injecting Liquid Injectable Silicone.

The motion judge dismissed the action for inordinate and inexcusable delay.

The Court of Appeal upheld the dismissal, emphasizing the need for a "culture shift" in civil justice to combat delay, finding the Langenecker approach to delay out of step with the Supreme Court of Canada's Hryniak decision.

The court found the 21-year delay inordinate and inexcusable, and the appellant failed to demonstrate error in the prejudice analysis or the exercise of discretion.

The plaintiff, a minority shareholder and employee of a closely held construction management company, brought an action for wrongful dismissal and oppression after a contentious meeting where the majority shareholders claimed he resigned.

The court found the plaintiff was terminated without cause, as his emotional outburst did not constitute a clear and unequivocal resignation.

The court also found the majority shareholders engaged in oppressive conduct by unilaterally removing him as a director, withholding his shareholder loan, and failing to value his shares upon termination.

To rectify the oppression, the court valued the plaintiff's shares at the subsequent fiscal year-end, awarding $440,100 for the shares, $100,000 for pay in lieu of notice, and $75,000 in punitive damages for the defendants' high-handed conduct.

Tallman Truck Centre Limited appealed an order staying its action against K.S.P. Holdings Inc. The stay was imposed because Tallman failed to immediately disclose a settlement agreement with the co-defendant, Secure Capital Advisors Inc., which fundamentally altered Secure's adversarial position to a cooperative one with Tallman.

The Court of Appeal dismissed Tallman's appeal, affirming that such agreements, regardless of type (Mary Carter or Pierringer-type), require immediate disclosure as they change the litigation landscape.

The court reiterated that failure to immediately disclose constitutes an abuse of process, for which a stay of proceedings is the only appropriate remedy, regardless of intent or perceived prejudice.

The defendants, Dr. Yasser Khan, Dr. Yasser A. Khan Medicine Professional Corporation, and Carrot Eye Surgery Clinic, brought motions to set aside a noting in default entered by the self-represented plaintiffs, Larry Westcott and Sharon Lea Westcott.

The court applied the test for setting aside a noting in default, considering the behavior of both parties, the length and reasons for delay, the complexity and value of the claim, and the absence of prejudice to the plaintiffs.

The court found that the defendants acted promptly upon discovering the default, intended to defend the action, and that the plaintiffs' conduct (noting default without prior notice, then demanding excessive costs for consent) was not ideal.

Given the complexity of the medical negligence claim and the significant damages sought, the court emphasized the preference for resolving disputes on their merits.

The motions were granted, setting aside the noting in default, with no costs awarded to any party.

The applicant sought entitlement to stock options, arguing constructive dismissal from employment after one year when their role transitioned to a consulting position.

The respondent contended that the transition to a consulting role and subsequent departure were by mutual agreement, thus precluding option entitlement.

The court found no constructive dismissal, determining that the change in role was mutually agreed upon and contemplated by the original employment contract.

The applicant's subsequent departure after the consulting term was also deemed voluntary.

Consequently, the application for stock options was dismissed.

The defendant obstetrician, Dr. Jackiewicz, was sued for negligence by the Woods family, alleging that his breach of standard of care in managing a twin pregnancy led to Kelsey Woods incurring cerebral palsy.

During the trial, the defendant objected to the plaintiffs' closing address, which invited the jury to find causation even if the pregnancy prolongation from amnioreduction was less than the five weeks testified to by experts.

The defendant requested an instruction that the jury *must* find against the plaintiffs on causation unless a five-week prolongation was proven.

The court declined this additional instruction, finding that there was sufficient evidence for the jury to infer causation with a shorter prolongation, consistent with the principles from *Benhaim v. St-Germain* regarding the use of statistics and inferences in medical malpractice causation.

During a medical malpractice jury trial, the plaintiffs challenged the impartiality of the defendant Dr. Jackiewicz's proposed expert witness, Dr. William Mundle.

The plaintiffs argued that Dr. Mundle's prior solicitor-client relationship with defense counsel and his history of testifying in favor of Dr. Jackiewicz compromised his impartiality.

The court, applying the principles from *White Burgess Langille Inman*, found that the prior solicitor-client relationship did not preclude Dr. Mundle's testimony.

While acknowledging concerns about Dr. Mundle's history of defending Dr. Jackiewicz, the court declined to preclude his testimony, limiting his evidence to causation and prohibiting questioning that would reveal Dr. Jackiewicz's disciplinary history due to the high risk of undue prejudice to the jury.

Limited cross-examination on the duration and nature of Dr. Mundle's professional or personal acquaintance with Dr. Jackiewicz was permitted.

In a medical negligence jury trial, the plaintiffs sought to introduce demonstrative aids (illustrations and charts) through their expert witness, Dr. Cecil Hahn, to explain complex medical concepts related to brain pathology, injury evolution, and statistical relationships between gestational age and neurodevelopmental outcomes.

The defendant, Dr. Allan Jackiewicz, opposed the use of these aids, arguing they were inaccurate, incomplete, unnecessary, and prejudicial.

The court, applying established legal principles for demonstrative aids, found them admissible with one minor excision to prevent misleading information, concluding that they would assist the jury in understanding complex expert evidence without being unduly prejudicial or constituting improper advocacy.

The Plaintiffs in a medical negligence action moved for leave to call four expert witnesses at trial, arguing that section 12 of the Ontario Evidence Act allowed for three experts per issue.

The court rejected this interpretation, holding that leave is required for more than three experts on all issues combined.

The motion for leave was denied, restricting the Plaintiffs to a total of three expert witnesses, citing factors such as the Defendant's objection, sufficiency of three experts for the core issues (standard of care and causation), the Defendant also calling three experts, lack of custom for more than three liability experts in medical malpractice, potential prejudice, and substantial duplication among the proposed experts.

The respondent was sexually assaulted by a priest when he was 11 years old.

The priest fondled and performed oral sex on the respondent on one occasion.

The respondent sued the Diocese for damages on the basis of vicarious liability.

After years of denying liability, the Diocese admitted liability on the first day of trial.

The only issue was damages.

The jury awarded general and aggravated damages of $250,000, loss of income of $280,000, treatment expenses of $5,000, and punitive damages of $15,000.

The Diocese appealed on multiple grounds.

The Court of Appeal upheld the damages awards but split on the punitive damages issue, with the majority upholding the award and the dissent setting it aside.

The court addressed costs and interest following a prior judgment on share valuation.

Due to mixed results and the inherent unpredictability of share valuation, the court ordered each party to bear their own costs, including expert fees.

On the issue of interest, the court determined that the discretion to award interest to dissenting shareholders under the Ontario Business Corporations Act (OBCA) was not curtailed by the corporation's ability to pay.

Prejudgment interest was awarded at the prescribed rate of 0.8% from the date of the statutory offer (May 11, 2017) to the date of the judgment, with postjudgment interest thereafter, on the determined share values for the dissenting shareholders.

The applicant company sought to fix the fair market value of common shares held by dissenting shareholders who opposed amendments to create convertible preferred shares.

The court rejected the applicant's liquidation approach to valuation, instead valuing the company as an ongoing concern using the discounted cash flow (DCF) method.

The court determined that a three-month time delay in the commencement of projected cash flows was appropriate, balancing the company's straightened financial circumstances with its ongoing viability.

The "en bloc" fair market value was fixed at $12,300,000, resulting in a per share value of $0.304.

The plaintiffs sought summary judgment against Stewart Title Guaranty Company for $223,555.74, alleging coverage under their title insurance policy due to structural defects in their home that violated the Ontario Building Code and rendered the property unmarketable.

The court found that while the property's title was unmarketable under Covered Title Risk (CTR) clause 19, coverage was excluded by exclusion clause 7, which pertained to structures not built in accordance with applicable building codes.

The court also found no coverage under CTR clause 20, as there was no evidence of a governmental authority forcing remedial work.

Consequently, the plaintiffs' motion for summary judgment against Stewart Title was dismissed.

The appellant appealed a motion judge's decision dismissing his second motion to change child and spousal support and granting the respondent's cross-motion.

The appellant had failed to produce required financial disclosure, including income tax returns, despite multiple court orders over two years.

The motion judge dismissed the motion based on this failure to disclose.

The appellant sought to introduce his 2015 and 2016 tax returns as fresh evidence on appeal.

The Court of Appeal declined to admit the fresh evidence and upheld the motion judge's decision, finding the appellant had not met the test for introducing fresh evidence and had failed in his fundamental duty to disclose financial information.

The court rejected the appellant's procedural fairness arguments, noting he had benefitted from judicial indulgences rather than suffered unfairness.

The applicant, Tibbett & Britten Group Canada Inc., sought costs on a full indemnity basis after being successful in a prior application.

The court determined that the original agreement providing for full indemnity costs was spent and a new agreement, lacking such a provision, governed.

Consequently, the applicant was awarded costs on a partial indemnity basis.

The court also denied the applicant's claim for costs related to an FSCO investigation, characterizing them as potential damages rather than costs of the proceeding.

Additionally, certain disbursements for file review and irrelevant legal research were disallowed.

The respondent's request for costs for having to respond to the applicant's costs submissions was denied as there were legitimate issues to be determined.

The plaintiffs brought a medical negligence action alleging that a hospitalist physician negligently prescribed excessive doses of hydromorphone (Dilaudid) to a patient who had previously received morphine and was allegedly opioid‑naive.

The patient died several hours after receiving multiple doses of Dilaudid, and the coroner’s report listed the cause of death as acute mixed hydromorphone and morphine intoxication.

The court heard competing expert evidence regarding opioid equivalency ratios, titration practices, and whether the physician’s 5 mg dosing fell below the standard of care for a hospitalist managing severe uncontrolled pain.

The court preferred the defence experts’ evidence that the dosing decision was a reasonable clinical judgment given the patient’s persistent severe pain and lack of response to morphine, and that reliance on experienced nurses for monitoring was appropriate.

The court also found the clinical course inconsistent with opioid toxicity and concluded the plaintiffs had not proven causation on a balance of probabilities.

The negligence claim was dismissed.

Following reasons on the underlying application, the court determined the appropriate costs award.

Applying s. 131(1) of the Courts of Justice Act and the discretionary factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the proceeding, the reasonableness of the steps taken, and proportionality.

Although the respondent argued that the applicants’ legal fees were high relative to his own expenses, the court found the applicants’ partial indemnity bill of costs and disbursements generally reasonable.

Exercising its discretion, the court fixed partial indemnity legal fees at $65,000 plus HST and disbursements.

The respondent was ordered to pay total costs of $84,092.17.