Dorothy E. Charach

Seven spirits suppliers brought an application challenging the enforceability of section 14 of the LCBO's standard purchase order Terms and Conditions — a "most favoured customer" no-price-discrimination clause — after the LCBO assessed approximately $35.9 million in chargebacks by way of set-off for breaches of the provision.

The applicants raised multiple grounds: ultra vires, statutory illegality, restraint of trade, unenforceable penalty/unconscionable forfeiture, waiver, estoppel by convention, bad faith, and unjust enrichment.

The court rejected all grounds, holding that section 14 falls squarely within the LCBO's statutory mandate to buy and sell liquor as a wholesaler and retailer, is not prohibited by statute, does not restrain trade, is not an unenforceable penalty, was not waived, and was not the subject of a shared assumption with suppliers that it would not be enforced.

The application was dismissed.

This is a medical malpractice action arising from the death of Maria Patria Asajar on January 22, 2014, following alleged misdiagnosis and delay in treatment of an aortic dissection at North York General Hospital.

The plaintiffs brought a motion for a status hearing under Rule 48.14(6) of the Rules of Civil Procedure after the action had not been set down for trial within the prescribed timeframe.

The defendants opposed, arguing the action should be dismissed for delay.

The court found that the plaintiffs provided an acceptable explanation for the delay and that there was no non-compensable prejudice to the defendants.

The action was permitted to proceed with new mediation and trial-setting deadlines.

This ruling addresses a dispute between the plaintiffs and defendants regarding the wording of causation questions to be put to the jury in a medical negligence trial.

The plaintiffs sought "caused or contributed to" language and no particulars, arguing complexity and potential undermining of the verdict.

The defendants advocated for "but for" language and required particulars, citing clarity and the need for evidentiary foundation.

The court found that "but for" language should be used for causation questions, given the discrete nature of the alleged negligence of each defendant doctor.

Furthermore, the court ruled that the jury must provide particulars of their causation findings to ensure understanding of instructions and proper evidentiary basis, consistent with practices for standard of care particulars.

The defendants, a union and its representatives, brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action initiated by the plaintiffs, a hotel and its parent company.

The defamation claim arose from a press release issued by the defendants alleging the hotel required employees to remove union Pride pins, implying a lack of support for the LGBTQ+ community.

The court dismissed the defendants' motion, finding that the plaintiffs' defamation claim had substantial merit and no valid defences (justification, qualified privilege, fair/reasonable comment), particularly due to evidence of malice and the untruthful implication in the press release.

The court concluded that the public interest in allowing the defamation action to continue outweighed the public interest in protecting the expression, and awarded partial indemnity costs of $75,000 to the plaintiffs.

The defendants requested the dismissal of the plaintiff's action under Rule 2.1.01(6) of the Rules of Civil Procedure, citing numerous deficiencies in the plaintiff's claim, including lack of particulars, misapplication of legal principles (e.g., Charter rights, malicious prosecution), and jurisdictional issues.

The plaintiff, a self-represented LLM holder, indicated an intent to discontinue but failed to address the court's concerns regarding the claim's validity.

The court dismissed the action, finding the plaintiff's pleading vexatious and unmeritorious, and ordered that the plaintiff must obtain leave of the court before commencing any future action against these defendants, requiring a draft statement of claim for review.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claims arising from the birth of a child with spina bifida.

The defendants argued the mother's wrongful birth claim was statute-barred and the child's wrongful life claim disclosed no cause of action.

The court dismissed the motion regarding the wrongful birth claim, finding a genuine issue for trial regarding whether the limitation period was tolled due to the mother's reliance on the doctor's alleged misrepresentation that the ultrasound was clear.

The court granted the motion to dismiss the wrongful life claim, confirming settled law that a physician does not owe a duty of care to a future child for a lack of informed consent to the mother.

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The Plaintiffs sought costs after successfully certifying a class action and dismissing a stay motion.

The court awarded the Plaintiffs $700,000 in all-inclusive costs, comprising $366,149.88 in disbursements and $333,850.12 in fees.

The court emphasized the discretionary nature of costs, the importance of certification motions in class actions, and the need for unsuccessful parties to provide their own bills of costs for comparison.

A portion of the costs ($30,000) was specifically allocated to two defendants (Bristol-Myers and Otsuka) for the stay motion, which the third defendant (Lundbeck) did not participate in.

The plaintiff brought a motion seeking leave to amend her notice of action, extend the time to file a statement of claim, and extend the time to serve the amended notice of action and statement of claim in a medical malpractice case.

The court dismissed the motion, finding that the plaintiff's deliberate decision to put her case on hold for 20 months, without contact with her lawyer, demonstrated a lack of intention to pursue the claim.

The court also found that the plaintiff failed to provide a reasonable explanation for the delay and that the defendants would suffer significant prejudice due to the passage of over four years since the events, leading to memory loss among medical professionals and loss of opportunity for timely investigation by the hospital.

The defendants brought a motion seeking broad production of documents from the plaintiffs' lawyers' files, arguing that the plaintiff had waived solicitor-client privilege by putting her state of mind regarding discoverability in issue for a summary judgment motion.

The court dismissed the motion, emphasizing the fundamental nature of solicitor-client privilege.

It found that the plaintiff's state of mind after retaining current counsel in 2016 was not relevant to the discoverability issue for the limitation period, as the action was commenced within two years of that date.

The court distinguished the facts from cases where legal advice directly impacted the limitation period and suggested a more targeted approach through cross-examination for relevant pre-retainer discussions.

The plaintiffs in a medical malpractice action requested an urgent case management conference to seek an extension of time to deliver their expert reports on income loss and liability.

The defendants opposed the extension, arguing the plaintiffs should be barred from delivering the reports due to their breach of the existing timetable.

The court granted the extension, finding that the timetable could be varied to allow the plaintiffs more time without reducing the time afforded to the defendants to deliver their responding reports, thereby preserving the scheduled trial date.

This decision addresses whether a finding of contributory negligence against a plaintiff mother (Kimberley York) should reduce the global damages awarded to all plaintiffs, including her injured child (Cole Parliament) and husband (John Parliament), or only her personal damages.

The court held that such a reduction would only apply to the mother's personal damages, as the defendants failed to properly advance a counterclaim for contribution and indemnity against her within the applicable limitation period, as required by the Rules of Civil Procedure and the Limitations Act.

The plaintiffs brought a motion to disqualify the defendants' proposed expert medical witness, Dr. Karen Fleming, from testifying on the standard of care.

The court reviewed Dr. Fleming's two reports and her testimony during a voir dire, finding that her opinions were based on improper credibility assessments and fact-finding, rather than objective expert analysis.

Dr. Fleming's reports and cross-examination revealed a lack of impartiality and a preferential treatment of the defendants' evidence while disregarding the plaintiffs' evidence without adequate explanation.

The court concluded that Dr. Fleming lacked the necessary independence and objectivity to provide an impartial opinion, rendering her not a properly qualified expert under the Mohan framework.

Consequently, her evidence was deemed inadmissible, and the plaintiffs' motion to disqualify her was allowed.

The plaintiffs sought to exclude a December 17, 1999 note from Dr. Conley's Clinical Notes and Records, which contained hearsay regarding a past conversation about Cole Parliament's head size.

The plaintiffs argued the note was unreliable hearsay, not a proper business record, and highly prejudicial.

The defendants contended it was a business record and admissible.

The court applied the principled approach to hearsay, finding the note admissible as a business record under section 35 of the Ontario Evidence Act.

The court noted that the availability of all relevant witnesses (record keeper, informant, and parties to the original conversation) at trial would allow for cross-examination, satisfying reliability concerns and mitigating prejudice.

The motion to exclude the evidence was dismissed.

The plaintiff, Dr. Dick Eric Zoutman, brought a motion for summary judgment in a defamation action against James Graham, who had posted defamatory comments about Dr. Zoutman on online physician rating websites.

Graham brought a cross-motion for anti-SLAPP relief.

The court dismissed Graham's anti-SLAPP motion, finding it was brought too late and that Graham failed to acknowledge authorship of most impugned statements.

The court granted summary judgment to Dr. Zoutman, finding the postings defamatory, published, and made with malice.

Graham's defence of fair comment failed due to false factual premises and malice.

Dr. Zoutman was awarded $25,000 in general damages and $25,000 in aggravated damages, totaling $50,000, and a permanent injunction against Graham.

The plaintiffs brought a motion, with the defendants' consent, to certify a proposed class action for settlement purposes, approve a settlement agreement, approve the plan for disseminating notices, approve the forms of the notices, and grant a privacy and disclosure order.

The class action concerned defective implantable cardioverter or cardiac resynchronization therapy defibrillators manufactured by the defendants, which were prone to premature battery depletion.

The court found that all criteria for certification under the Class Proceedings Act, 1992, were satisfied, noting that these criteria may be applied less rigorously in a settlement context.

The motion was granted, approving the certification for settlement, the settlement agreement, and related procedural orders.

The court conducted a case management conference in a medical malpractice action initiated in 2011.

The plaintiffs' renewed request to schedule a partial summary judgment motion against one physician defendant on liability was denied due to its partial nature, previous dismissal, and the plaintiffs' breach of an order to set the action down for trial.

The court provided specific directions for the action's progression, including allowing the plaintiffs to file a motion to extend time for setting down for trial, noting the discontinuance against Nurse Defendants, and scheduling further discussions on a de bene esse examination and expert report deadlines.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

The appellant appealed his convictions for assault and possession of a weapon dangerous to the public peace, arguing that the trial judge failed to provide adequate reasons and improperly applied the self-defence provisions of the Criminal Code.

The Superior Court dismissed the appeal, finding that the trial judge's reasons, though brief, were sufficient when read in the overall context of the case and submissions, allowing for meaningful appellate review.

The court affirmed the trial judge's conclusion that while the appellant may have subjectively believed his mother was threatened, there were no objective grounds to support that belief, thereby negating the self-defence claim.