Dorothy Charach

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

The plaintiffs brought a motion to certify a class action against the defendant, alleging that ethanol emissions from the defendant's whisky aging warehouses caused the growth of 'whiskey fungus' that damaged their properties.

The court dismissed the certification motion, finding that the pleadings failed to disclose a cause of action, there was no identifiable class rationally connected to the common issues, and the individual issues predominated over any common issues.

The court also excluded the plaintiffs' proposed expert evidence due to a lack of evidence regarding their qualifications, and found the proposed representative plaintiffs unsuitable as their claims appeared statute-barred.

The moving party (respondent in the main application) sought a confidentiality order to prevent the disclosure of certain commercial information in an upcoming summary trial regarding a terminated commercial lease.

The moving party relied on a confidentiality provision in the lease agreement.

The court applied the Sherman Estate test and interpreted the lease's confidentiality clause, finding that the clause explicitly exempted litigation between the parties.

Without an applicable confidentiality clause, the moving party failed to establish an important commercial interest that outweighed the public interest in open courts.

The motion was dismissed.

The plaintiffs brought a motion to certify a class action against the manufacturers of the antidepressant Celexa, alleging it is a teratogen that causes congenital malformations.

The plaintiffs proposed common issues regarding general causation (whether Celexa is or may be teratogenic) and duty to warn.

The court dismissed the certification motion, finding that the proposed common issues failed to satisfy the commonality requirement under s. 5(1)(c) of the Class Proceedings Act, as they would not advance the litigation without individual trials for each specific congenital malformation.

The court also found that a class proceeding was not the preferable procedure due to the overwhelming number of complex individual issues.

Following a 42-day medical negligence trial where damages were agreed at $12 million, the plaintiffs sought costs of over $4.5 million.

The court considered the complexity of the case, the high hourly rates of senior counsel, and the defendants' stout denial of liability.

The court awarded the plaintiffs $4,218,052.00 in partial indemnity costs and disbursements, payable two-thirds by the unsuccessful physicians and one-third by the hospital.

The court declined to make a Sanderson Order, instead ordering the plaintiffs to pay $250,000 in costs to the two successful defendant physicians.

The plaintiff suffered a cardiac arrest and anoxic brain injury during an urgent caesarean section.

The plaintiffs sued the treating obstetricians, anesthesiologist, and the hospital for medical negligence.

The court found the initial obstetrician negligent for failing to diagnose the pregnancy early, failing to discuss termination, and failing to document severe risk factors associated with the plaintiff's morbid obesity.

The anesthesiologist was found negligent for prematurely converting to a general anesthetic and failing to adequately manage the airway, directly causing the cardiac arrest.

The hospital was found vicariously liable for a triage nurse's failure to follow protocols during a telephone call.

Liability was apportioned equally among the three negligent defendants.

The defendant obstetricians brought a motion for partial summary judgment in a medical negligence action, arguing the plaintiffs' expert reports were insufficient to establish standard of care or causation.

The motion was brought shortly before a scheduled ten-week trial.

The court dismissed the motion, finding that partial summary judgment would not be proportionate, cost-effective, or timely, and risked inconsistent findings and duplication of resources.

The court also noted that the sufficiency of the complex expert evidence was better assessed in the context of a full trial.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

Following a successful summary judgment motion for defamation and the dismissal of the defendant's anti-SLAPP motion, the plaintiff sought costs.

The plaintiff had made multiple offers to settle for significantly less than the $50,000 damages awarded at trial.

The court considered the offers to settle, the principles of proportionality, and the statutory provisions regarding costs for anti-SLAPP motions.

The court fixed costs payable by the defendant to the plaintiff at $50,000 all-inclusive.

In a jury trial for medical negligence arising from hospital treatment, the parties disputed the proper wording of causation questions to be put to the jury and whether the jury should provide particulars explaining any finding of causation.

The plaintiffs argued the jury should be asked whether the defendants' breach 'caused or contributed to' the injury, relying on principles recognizing multiple causes in negligence.

The defendants argued the jury must be instructed using the Supreme Court of Canada’s 'but for' causation test articulated in Clements.

The court held the jury questions should follow the 'but for' formulation, finding the 'cause or contribute' wording risked confusion.

The court also ruled that if causation were found, the jury should be required to provide particulars of its reasoning due to the complexity of the medical evidence and multiple defendants.