Dena N. Varah

Following a trial judgment awarding the plaintiff $2.54 million in damages for wrongful dismissal, the court determined costs and pre-judgment interest.

The plaintiff sought substantial indemnity costs based on pre-trial offers to settle and an elevated pre-judgment interest rate.

The court found the plaintiff did not beat his initial offer due to a pre-trial payment by the defendant, and his amended offer was made too late to trigger Rule 49.10.

The court declined to exercise its discretion to award elevated costs, finding no reprehensible conduct by the defendant.

The court also declined to depart from the prescribed pre-judgment interest rate of 2.0%, finding no unusual circumstances to justify a higher rate.

Costs were awarded on a partial indemnity scale in the amount of $798,453.91.

The plaintiff, a 52-year-old Managing Director in investment banking with 18 years of service, was terminated without cause.

The court determined the reasonable notice period to be 21 months, considering his age, length of service, and specialized role.

The court used a comparator approach to calculate the plaintiff's lost bonuses during the notice period, rejecting the employer's averaging approach due to the highly cyclical nature of the mining market and the employer's record profits during the notice period.

After deducting mitigation earnings and severance already paid, the court awarded the plaintiff $2,540,073.95 in damages.

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 appellant, Venmar Ventilation Inc., appealed a trial judgment finding it liable for negligent design after a ventilator motor caught fire and destroyed the respondents' home.

The trial judge found Venmar liable for failing to incorporate adequate thermal protection in its ventilator design, but dismissed claims against the motor manufacturer, Fasco, finding it owed no duty of care and was contractually indemnified by Venmar.

The Court of Appeal upheld the trial judge's findings on liability, negligent design, and contractual indemnity.

However, the Court allowed Fasco's cross-appeal on costs, finding the trial judge erred by failing to consider the contractual indemnity provision when assessing the scale and quantum of costs, and remitted the costs issue back to the trial judge.

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 plaintiffs sought damages after a house fire caused by failure of a motor within a heat recovery ventilator.

The court found that the appliance manufacturer negligently designed the unit by using cycling thermal protection without adequate system-level overcurrent protection or adequate end-of-life safety measures, and awarded property and non-pecuniary damages totalling $1,133,739.00.

The motor supplier was not liable because the motor itself was not defective, the appliance manufacturer bore responsibility for integrating the component safely into the finished product, and causation was not established on any alleged failure to warn.

The court also dismissed an issue estoppel motion based on prior Québec litigation and held that, if the component supplier had been liable, the contractual indemnity terms would have required indemnification by the appliance manufacturer.

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 Court of Appeal fixed the respondents' costs of the appeal at $90,000 inclusive of disbursements and applicable taxes.

The appellant physician appealed a jury verdict finding him liable for negligent management of a twin pregnancy, which resulted in premature birth and brain damage to one of the twins.

The appellant argued the jury's verdict on causation was unreasonable due to a lack of evidence that the required treatment, amnioreduction, was available at the referral hospital in 1991.

The appellant also challenged the trial judge's jury instructions regarding adverse inferences, the characterization of expert evidence, and the failure to instruct on loss of chance.

The Court of Appeal dismissed the appeal, finding that there was an evidentiary basis for the jury's conclusion on causation and that the jury charge was fair, balanced, and legally correct.

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 appellant corporation appealed a judgment fixing the fair value of its shares at 30.4 cents per share under s. 185 of the Business Corporations Act.

The appellant argued the application judge erred by valuing the corporation on a going concern basis rather than a liquidation basis, by adjusting the cash flow forecast based on a three-month delay for alternative refinancing, and by failing to account for dilution from convertible debt.

The Divisional Court dismissed the appeal, finding that the application judge's valuation involved fact-specific judgment calls that were entitled to deference and revealed no errors of law.

The Estate Trustees of Allen Berg's estate sought court direction to determine the beneficial ownership of a cottage property.

Legal title was held by Melamel Properties Inc., whose shares were owned by the estate.

Judith Berg, the deceased's widow, claimed the entire beneficial interest or a 50% interest.

The court found that the deceased had created an express trust, holding the property for himself and Judith Berg as equal tenants in common.

The deceased's subsequent attempt to transfer the property solely to Melamel Properties Inc. for his exclusive benefit was deemed ineffective due to misstatements and breach of fiduciary duty, as Judith Berg's beneficial interest could not be unilaterally divested.

The court vested an undivided one-half interest in Judith Berg personally and an undivided one-half interest in the Estate of Allen Berg as tenants in common.

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 negligence jury trial involving the management of a twin pregnancy, the defendant obstetrician requested a jury instruction permitting an adverse inference against the plaintiffs for failing to call a treating physician from McMaster Hospital.

The court declined to give the instruction, applying the principle from Lambert v. Quinn that an adverse inference should not be drawn if the witness is equally available to both sides.

The court found the witness was compellable by the defendant and not peculiarly within the plaintiffs' power to produce.

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.