Duncan Embury

In a medical negligence action arising from alleged delayed diagnosis of a postoperative complication leading to catastrophic injuries, the defendant physicians brought a motion seeking permission for one defendant physician to testify at trial by videoconference.

The physician was on maternity leave in another province and argued that attending in person would cause expense and inconvenience.

The court considered Rule 1.08 of the Rules of Civil Procedure and the efficiency principles articulated in Hryniak v. Mauldin.

The court held that the request was inappropriate because the proposed witness was a party defendant whose credibility and conduct were in issue, and the plaintiff had a fundamental right to have the parties attend court for trial.

The inconvenience to the defendant did not constitute sufficient hardship to override due process considerations.

The plaintiffs brought a medical malpractice action following the sudden death of Emilio Spirito at Trillium Health Centre.

The plaintiffs alleged that the defendants' negligence, specifically the failure to insert a nasogastric tube, caused the deceased to aspirate fluids and die.

The court found that the defendant doctors and nurses met the standard of care in their treatment and monitoring of the deceased.

Furthermore, the court accepted expert pathology evidence that the deceased died from bilateral lobar pneumonia acquired from air-borne bacteria, meaning there was no causal connection between the alleged negligence and the death.

The action was dismissed.

The appellants appealed a jury verdict in favour of the respondent emergency room physician in a medical malpractice case following the death of Dave Palmer from cardiac arrest secondary to a bowel obstruction.

The appellants argued the trial judge failed to provide an adequate jury instruction by not reviewing the evidence or identifying factual issues.

The Court of Appeal dismissed the appeal, finding that while a trial judge should ordinarily outline the evidence, the failure to do so here did not result in a miscarriage of justice because the factual issues were straightforward and thoroughly canvassed by counsel in closing addresses.

The appellant appealed a decision of the Ontario Court of Appeal which upheld the dismissal of a third party claim on the basis of abuse of process.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting reasons of Goudge J.A. at the Court of Appeal that it was not an abuse of process to allow the appellant to bring the claim or require the realtors to defend it.

The motion for summary judgment was dismissed.

The appellants, a corporation and its undisclosed principal, breached an agreement to purchase land after the real estate market collapsed.

The trial judge assessed damages at the date of closing and held a third-party corporation and its principals liable on an undertaking as to damages given during an interlocutory injunction.

On appeal, the Court of Appeal upheld the damages assessment against the appellants, finding the sealed contract rule inapplicable.

However, the Court allowed the third parties' appeal, concluding that the injunction did not cause the appellants' damages, which resulted instead from the market collapse and their deliberate refusal to close.

The respondent financial advisory firm was engaged by the appellant trust company to raise debt or equity financing.

The agreement permitted the appellant to sell its assets without obligation to the respondent.

After the respondent obtained a letter of interest from a bank, the appellant terminated the engagement, paid the contractual fees, and later sold its assets to the bank.

The trial judge awarded the respondent $420,000 for unjust enrichment.

The Court of Appeal allowed the appeal and dismissed the action, finding that the respondent failed to establish an enrichment, a corresponding deprivation, or the absence of a juristic reason, as the services were not freely accepted for an asset sale and the respondent had no reasonable expectation of compensation beyond the contract.

The appellant doctor appealed an interlocutory order striking portions of his statement of defence and counterclaim, as well as portions of an affidavit.

The underlying action was brought by the respondent patient to enforce a settlement agreement.

The appellant alleged the settlement was obtained by fraud, relying on a sworn statement by the respondent recanting her allegations of sexual assault made to the College of Physicians and Surgeons of Ontario (CPSO).

The Divisional Court dismissed the appeal, holding that section 36(3) of the Regulated Health Professions Act creates an absolute bar to the admissibility of documents prepared for CPSO proceedings in civil actions, even where fraud is alleged.