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 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 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 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 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.

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 appellant appealed a decision of an Associate Judge dismissing her motion to extend the time to file a statement of claim and serve an amended notice of action in a medical negligence case.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the Associate Judge's conclusions that the appellant failed to provide a reasonable explanation for the delay and that the respondents would suffer prejudice if the extension were granted.

The court declined to decide whether intentional delay by a plaintiff is determinative, as the other findings were sufficient to dispose of the appeal.

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.

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 appellant appealed a judgment dismissing his anti-SLAPP motion and granting summary judgment of $50,000 in favour of the respondent physician for defamation.

The appellant had posted derogatory comments about the respondent on a doctor rating website after the respondent testified as an expert in a medical malpractice trial involving the death of the appellant's brother.

The Court of Appeal upheld the motions judge's findings that the anti-SLAPP motion failed and that the respondent had proven publication, authorship, and malice for the defamation claim.

The appeal was dismissed with costs.

The defendants brought motions for leave to appeal an order certifying a class action.

The Divisional Court granted leave to appeal, but limited it to two specific questions: whether the motion judge erred in applying the preferable procedure requirement under s. 5(1)(d) of the Class Proceedings Act given a parallel authorization in Quebec, and whether the judge erred in applying the abuse of process doctrine.

Costs of the motion were fixed at $5,000 and left to the discretion of the panel hearing the appeal.

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.

A case management teleconference was held to schedule three motions for leave to appeal a decision of Morgan J. The Divisional Court set a timetable for the exchange of motion materials and directed that the motions proceed in writing before a single panel.

The court also provided detailed instructions for the creation of an electronic drop box, the formatting of electronic documents, and the filing of factums and compendiums in light of the COVID-19 suspension of ordinary court operations.