Erica Baron

The appellant, a former real estate lawyer, appealed from a summary judgment dismissing his action against his bank.

He alleged that the bank committed repeated double withdrawals from his trust account in connection with certified cheques, causing failed real estate transactions, Law Society intervention, and criminal proceedings.

The motion judge found that although duplicate debits occurred, they were corrected and the appellant failed to establish that the bank's conduct caused the Law Society investigation or the losses claimed.

The Court of Appeal found no palpable and overriding error and dismissed the appeal with costs of $5,000.

Following a five-week common issues trial in a medical malpractice class action, the plaintiff was entirely successful against the main defendant doctor.

The doctor had crossclaimed against several nurse defendants, but those claims were entirely unsuccessful.

The court ordered the doctor to pay the plaintiff's agreed-upon costs within 30 days, rejecting his argument to defer payment until individual trials were completed.

The court also made a Sanderson/Bullock order, requiring the doctor to pay the costs of the successful nurse defendants on a partial indemnity scale up to the date of their offers to settle, and on a substantial indemnity scale thereafter.

The plaintiff brought a class action against an anesthesiologist, a pain clinic, and its nursing staff following an outbreak of bacterial meningitis and epidural abscesses among patients who received epidural injections.

The court found that the anesthesiologist breached the standard of care and his fiduciary duties by failing to use proper aseptic techniques, failing to report and investigate infections, and misinforming patients about the risks.

The court drew an inference of causation linking the anesthesiologist's substandard infection prevention and control practices to the patients' infections.

The claims against the nursing staff were dismissed as there was no evidence they breached the standard of care.

The court also found the anesthesiologist's conduct warranted punitive damages.

Following an appeal of a Master's order extending the time to set the action down for trial, the parties made written submissions on costs.

The court found that there was divided success on the appeal, as the appellants successfully challenged the Master's reasoning but the respondents successfully affirmed the ultimate outcome.

Balancing the factors under Rule 57.01, the court ordered that all parties bear their own costs.

A trial management conference was held to provide directions for an upcoming 10-day virtual trial.

The action was proceeding against only one defendant, the others having been dismissed.

The court provided directions regarding the use of a shared document folder, the preparation of trial materials including an Agreed Statement of Facts and Joint Document Book, and the completion of a Report to Trial Judge.

The court also scheduled a practice run for the virtual platform and provided guidance on managing exhibits and video presence during the trial.

The defendants appealed a Master's decision granting the plaintiffs an extension of time to set their medical malpractice action down for trial under Rule 48.14(7).

The Superior Court found that the Master erred in law by applying a 'contextual analysis' that relaxed the requirement to meet both parts of the conjunctive test for delay, and erred in fact by relying on evidence outside the record.

However, exercising its own discretion under s. 134 of the Courts of Justice Act, the Court determined the motion on the record and found the plaintiffs had provided an acceptable explanation for the delay and that the defendants would suffer no non-compensable prejudice.

The Court affirmed the 12-month extension but set aside the Master's costs award, ordering no costs for the motion.

The plaintiff brought a motion to amend the certification order in a class action concerning a bacterial infection outbreak among patients who received epidural steroid injections from the defendant physician.

The plaintiff sought to revise and expand the common issues to include negligence, causation based on epidemiological evidence, fiduciary duty, and limitation periods, and to add two subclasses.

The defendant physician brought a cross-motion to decertify the action, arguing that causation and standard of care required individualized assessments.

The court granted the plaintiff's motion to amend the certification order and dismissed the defendant's motion to decertify, finding that the plaintiff's novel methodology of using statistical correlation to prove causation met the 'some basis in fact' standard for certification and should be tested at a common issues trial.

A case conference was held to set a schedule for the plaintiff's upcoming motion to amend pleadings and common issues in a certified class action.

The court established a timetable for the exchange of motion materials, expert reports, cross-examinations, and factums, and scheduled the motion to be heard on July 11 and 12, 2019.

The applicant, who was declared dead by neurologic criteria (brain death), sought an order to be maintained on mechanical ventilation, arguing that her Christian belief that life continues as long as the heart beats should be accommodated under the Charter.

The Superior Court of Justice held that the common law definition of death includes brain death and that the applicant met the medical criteria for brain death despite exhibiting spinal reflex movements.

The court further held that the Charter does not apply to a deceased person or to a physician making a medical determination of death.

The common law definition of death was found to be consistent with Charter values, as the need for certainty and objectivity outweighs religious accommodation.

Finally, the court ruled that the Consent and Capacity Board lacks jurisdiction over disputes involving deceased persons, as mechanical ventilation of a corpse does not constitute 'treatment' under the Health Care Consent Act.

The application was dismissed.

The applicant sought leave to permit 72 hours of continuous videotaping of a patient who had been declared brain dead, arguing that her bodily movements were responsive to commands and indicative of brain function.

The respondent hospital and physicians opposed the motion, providing medical evidence that the movements were consistent with spinal reflexes and that ancillary tests showed no blood flow or electrical activity in the brain.

The court dismissed the motion, finding no scientific or medical support for the necessity of 72 hours of videotaping and concluding it would not assist the court in making a final determination.

The applicant sought to qualify Dr. Paul Byrne as an expert witness on the neurological determination of death (NDD) and related medical principles in an application to prevent the withdrawal of life support.

The court applied the Mohan criteria and the White Burgess gatekeeper framework to assess admissibility.

The court found that Dr. Byrne lacked the necessary training and experience with adults and the CMAJ Guidelines.

Furthermore, the court held that Dr. Byrne lacked independence and impartiality due to his demonstrated bias against the concept of brain death.

The request to qualify him as an expert was denied.

The applicant, an 80-year-old suffering from metastasized renal cancer and a broken pelvis, applied for judicial authorization for a physician-assisted death pursuant to the Carter constitutional exemption.

She was in intolerable pain with no hope of recovery and a prognosis of approximately three months to live.

The court found that she was competent, acting voluntarily, and met all the Carter criteria.

The application was granted, including a declaration that the assisting physicians were exempt from Criminal Code provisions and were not required to notify the coroner under the Coroners Act.

Following a prior judgment, the parties reached an agreement regarding costs arising from the motion and the action.

The court issued a costs endorsement confirming the parties’ consent.

The plaintiffs, acting personally and as substitute decision maker and litigation guardian for other parties, agreed to pay the defendant physicians a lump sum amount.

The order formalized the agreed costs payment resolving the outstanding costs issue between the parties.