Duncan Embury

The moving parties, comprising various social media companies including Meta, Snap, and TikTok entities, brought motions for leave to appeal the substantive and costs orders of Leiper J. The Divisional Court granted the motions for leave to appeal without costs and directed the parties to provide an agreed schedule for the exchange of appeal materials.

The plaintiff, Toronto District School Board, brought an action in negligence and public nuisance against several major social media corporations, alleging that their products were intentionally designed to be addictive to children and caused widespread mental health and behavioral issues among students.

The Board claimed it suffered direct economic damages in responding to these student harms, including increased costs for mental health services, security, and staff training.

The defendant corporations brought a motion to strike the statement of claim under Rule 21.01(1)(b) of the Rules of Civil Procedure, arguing that the claims had no reasonable prospect of success.

The Ontario Superior Court of Justice dismissed the motion, allowing the Board's novel claims in negligence and public nuisance to proceed.

The plaintiffs brought a medical malpractice action against three obstetricians and a hospital regarding the birth of the infant plaintiff.

The mother alleged that she did not consent to the use of a vacuum or forceps during delivery, claiming medical battery and lack of informed consent.

She also alleged that the doctors breached the standard of care in their antenatal record keeping, failure to recommend a Caesarean section earlier, and the decision to attempt a vacuum and forceps-assisted delivery.

The court dismissed the action, finding that the mother had provided informed consent to the use of the instruments in the face of an urgent obstetrical situation involving fetal distress.

The court also found that the doctors met the standard of care in all respects and that the plaintiffs failed to prove that the neonatal injuries caused the infant plaintiff's subsequent neurodevelopmental limitations.

This is an appeal from a medical malpractice judgment where the trial judge found the appellant physician negligent in treating a stroke victim, leading to permanent injuries.

The core issue on appeal was causation: whether the trial judge erred in finding that the physician's negligence caused the injuries, specifically by not requiring the plaintiff to establish precisely which treatment option would have prevented the unfavourable outcome.

The Court of Appeal dismissed the appeal, affirming the trial judge's robust and pragmatic application of the "but for" causation test, particularly in the context of an evidentiary gap created by the defendant's negligence.

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 appellants, Tyson Rogerson and his adoptive parents, appealed the dismissal of their medical malpractice action against two physicians, Dr. Elyse Savaria and Dr. Nkiruka Nwebube.

The appellants argued that the physicians breached their duty of care by failing to report a suspected risk of harm to Tyson to the Children's Aid Society (CAS) under s. 72 of the Child and Family Services Act, which they contended would have prevented Tyson's catastrophic brain injury.

The Court of Appeal upheld the trial judge's findings that the physicians did not breach the standard of care in failing to report, and even if there was a breach, the appellants failed to prove causation, as the CAS would not have intervened in a way that would have prevented the injury.

The appeal was dismissed.

The plaintiff suffered a cardiac arrest and profound brain damage following a Caesarean section delivery.

She brought a medical malpractice action against the obstetrical and anaesthesiology teams.

The court found that the obstetrical team met the standard of care.

While the staff anaesthesiologist breached the standard of care in three respects, the court concluded that these breaches did not cause the plaintiff's injuries.

The court accepted expert evidence that the cardiac arrest was caused by an unpredictable and unpreventable amniotic fluid embolism, rather than hemorrhagic shock.

The court also ruled that the claim against the anaesthesiologists was not statute-barred due to the discoverability doctrine.

The action was dismissed.

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.

In a medical malpractice action arising from catastrophic injuries inflicted on a newborn by his biological mother, the plaintiffs alleged that a family physician and a pediatrician negligently failed to report child protection concerns under s. 72 of the Child and Family Services Act.

The court found that the family physician conducted adequate mental health and coping assessments, and that neither physician had reasonable grounds to suspect the infant was a child in need of protection.

Although the family physician breached the standard of care by not providing the pediatrician with a fuller mental health history, that breach had no causal consequence.

The court further held that, even if a report had been made, the Children's Aid Society would likely have treated the matter as low risk and would not have intervened in time to prevent the assault.

The action was dismissed, with damages nonetheless fixed by agreement at $13,250,000 under Rule 7.08.

The plaintiff attended the emergency department with symptoms of dizziness, nausea, and facial weakness, and a referral note from his family doctor requesting to rule out a stroke.

The defendant emergency physician diagnosed peripheral vertigo and Bell's Palsy, and discharged the plaintiff without conducting a gait assessment or consulting a neurologist.

The plaintiff returned the next day with a severe basilar artery occlusion, resulting in catastrophic long-term disabilities.

The court found the defendant breached the standard of care and that, but for this breach, the plaintiff would have received timely recanalization treatment with a successful outcome.

The defendant's request for a 25% discount on the agreed damages was dismissed.

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.

This decision addresses a request by the respondent (defendant in the original action) to limit the scope of a new trial on liability and damages, which had been ordered by the Court of Appeal in a prior decision.

The court dismissed the request, emphasizing that the evidence and issues were complex, interrelated, and interdependent.

Limiting the trial to specific issues would risk artificial credibility assessments and unreliable fact-finding.

The appellants appealed the dismissal of their medical malpractice action against an obstetrician following a catastrophic birth injury.

The infant suffered acute near-total oxygen deprivation prior to birth, resulting in severe permanent brain damage.

At trial, the judge dismissed the action, finding no breach of the standard of care and no causation.

On appeal, the Court of Appeal found the trial judge's reasons were legally inadequate regarding causation and one of the standard of care issues (the failure to complete the delivery with Kielland forceps).

The reasons failed to explain critical findings, preventing meaningful appellate review.

The appeal was allowed and a new trial ordered on all issues of liability and damages.

The appellants, triplets born with serious disabilities, appealed the dismissal of their negligence claim against a physician who prescribed a fertility drug to their mother pre-conception.

They alleged the physician failed to provide informed consent and prescribed a contraindicated medication.

The Court of Appeal, in a majority decision, dismissed the appeal, affirming that a physician does not owe a duty of care to a future child for alleged negligence occurring pre-conception, citing policy concerns regarding conflicting duties and women's autonomy.

The dissenting judge argued that the allegation of a contraindicated drug could distinguish the case and warrant a full trial to determine if a novel duty of care exists.

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 in a complex medical malpractice action served a neuroradiology expert report late, breaching a case management order and necessitating a second adjournment of the trial.

The defendant doctors sought $30,000 in costs thrown away for wasted trial preparation time.

The court emphasized the importance of complying with case management orders and the court's inherent jurisdiction to award costs for abuse of process.

Taking into account the lack of detailed dockets, the court's knowledge of the file, the need for deterrence, and the plaintiff's physical limitations, the court ordered the plaintiffs to pay $20,000 in costs thrown away to the defendant doctors in any event of the cause.

This decision addresses a challenge to the admissibility of an expert witness, Dr. David Gladstone, during a medical malpractice trial.

Counsel for the defendants argued that Dr. Gladstone was not impartial or objective and was in a conflict of interest due to a prior treating relationship with the plaintiff.

The court found that Dr. Gladstone had disclosed the prior relationship to the plaintiffs' counsel, believed it irrelevant to his expert opinion, and was confident in his objectivity.

The court also clarified that treating physicians can act as medical experts, with their duty solely to the adjudicative body, not to advocate for former patients.

The judge qualified Dr. Gladstone as an expert and permitted him to testify, criticizing the defendants' counsel for raising the challenge for the first time at trial as a 'trial by ambush'.

The court addressed a dispute in a medical malpractice jury trial regarding the wording of causation questions and whether the jury should provide reasons for their findings.

The plaintiffs proposed "caused or contributed to" language, while the defendants advocated for "but for" and requested reasons.

The court accepted the plaintiffs' "caused or contributed to" language, finding no compelling reason not to translate the "but for" test into everyday language, and rejected the request for the jury to provide reasons, citing the risk of confusion and violation of jury secrecy.

The defendant physician brought a Rule 21 motion to strike the claims of the infant plaintiffs (triplets) for "wrongful life." The claims arose from the physician's alleged negligence in prescribing a fertility drug to the mother, leading to multiple births and premature delivery, resulting in the triplets' serious disabilities.

The court, applying established Ontario jurisprudence, found no duty of care owed by the physician to unconceived children, as the alleged negligence occurred prior to conception.

The motion was granted, and the infant plaintiffs' claims were dismissed without leave to amend.

In a medical negligence action concerning the birth of triplets with severe disabilities, the defendant Dr. Benzaquen brought a Rule 21 motion to dismiss the infant plaintiffs' "wrongful life" claims.

The plaintiffs argued the motion required a full evidentiary record and should be heard at trial.

The court determined that Rule 21 motions, which address questions of law on the pleadings, should generally be heard at the earliest date, prior to trial, to potentially dispose of claims or substantially shorten the trial.

The judge directed counsel to schedule the motion for October 2019 and confirmed a new trial date for March 2021, allowing for potential appeals of the motion decision before the lengthy trial.