Erica Jill 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.

This endorsement addresses multiple motions to strike claims for contribution and indemnity brought by various Children's Aid Societies (CAS) against Dr. Gideon Koren and the Hospital for Sick Children (HSC) in the context of the "Motherisk Cases." The court partially granted the motions, striking claims for contribution and indemnity based on the Negligence Act, as the CAS was not found liable to the original plaintiffs.

However, the court dismissed the motions to strike claims for contribution and indemnity based on breach of contract, finding it was not plain and obvious that such claims, including those relying on a principled exception to privity of contract, would fail.

HSC's claim was struck as unopposed.

One of Dr. Koren's crossclaims was struck with leave to amend to properly plead a contract claim.

The court also ordered consolidation of one of Dr. Koren's actions with a related M.M. Action.

The Toronto-Dominion Bank (TD) sought court direction regarding whether Caroline Witoszkin, the Estate Trustee and sole residual beneficiary of Judith Jenkins' 2022 Will, had a fiduciary duty to notify beneficiaries named in Judith's prior 2008 Will.

TD argued for notice due to the unique circumstances, including Witoszkin's former professional relationship with Jenkins and alleged suspicious circumstances.

Witoszkin opposed, asserting no such duty.

The court dismissed TD's application, finding that the Estate Trustee of the current Will has no fiduciary obligation to beneficiaries of a prior Will, especially where the testator's intentions were clear and the solicitor confirmed no undue influence.

The applicants, beneficiaries of the Fitzhenry (1994) Family Trust, sought a declaration that the respondent trustee, Linda Stevens, had already received appropriate compensation and was not entitled to additional fees.

Ms. Stevens sought over $300,000 in additional compensation.

The court found that Ms. Stevens and co-trustees breached the trust deed by failing to obtain beneficiary consent for fees and by delegating duties without proper oversight.

Applying the "five factors" for trustee compensation, the court determined that Ms. Stevens had been adequately compensated for her services, especially given the extensive delegation of management duties to other professionals and her failure to adhere to trust terms.

The court dismissed Ms. Stevens' claim for additional compensation and ordered her to pay the applicants' costs.

This is an appeal in a class action concerning an infectious disease outbreak at a pain care centre.

The appellant, Dr. Stephen James, challenged the trial judge's findings of negligence, breach of fiduciary duty, and the application of the limitation period, as well as the award of punitive damages and costs.

The Court of Appeal upheld the trial judge's conclusions that Dr. James breached the standard of care by failing to consistently use aseptic technique and to report/investigate infections.

The court affirmed the use of statistical evidence to establish a rebuttable presumption of causation for the class, and found no error in the breach of fiduciary duty or the appropriateness of punitive damages.

The appeal on costs, including the order for Dr. James to pay the successful co-defendant nurses' costs, was also dismissed.

The appellant, Miriam Young, appealed the application judge's interpretation of the residue clause in the last will and testament of Saul Jonas, specifically the meaning of 'in equal shares per stirpes' for the 60% portion of the estate designated for grandchildren and great-grandchildren.

The appellant argued for an interpretation that would benefit the children more, while the Office of the Children's Lawyer (OCL) advocated for an equal division among the grandchildren.

The Court of Appeal applied the 'armchair rule' and upheld the application judge's decision, finding no palpable and overriding error in her assessment of the testator's intention to ensure equal distribution within the beneficiary classes.

The appeal regarding the will's interpretation was dismissed.

The appellant also sought leave to appeal a costs order, which was granted, but that appeal was also dismissed, with a portion of the costs payable personally by the appellant.

The plaintiffs brought a medical malpractice action against a pathologist for failing to diagnose appendiceal cancer from an appendectomy specimen in 2011.

The patient was later diagnosed with stage IV cancer in 2015 and died in 2016.

The court found that the pathologist breached the standard of care, as the cancer was obvious and should have been identified.

The court also found that but for the delayed diagnosis, the patient would likely have been cured with standard treatment.

The court awarded pecuniary and non-pecuniary damages to the estate and family members.

The plaintiff brought a motion on consent for an order granting leave to discontinue the proposed class action without costs and without notice to putative class members.

The certification motion had previously been dismissed and the action continued as an individual action.

The court granted the motion, finding no prejudice to former proposed class members who had sufficient opportunity to bring their own claims, which were being case-managed together.

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.

The plaintiff underwent bariatric surgery performed by the defendant.

The defendant took down a prior fundoplication without the plaintiff's informed consent, causing severe acid reflux that ultimately required the removal of the plaintiff's stomach.

The court found the defendant breached the standard of care by performing a contraindicated surgery without adequate experience and without obtaining informed consent.

The limitation period defence failed as the plaintiff only discovered the cause of her injuries later.

The court awarded general damages and Family Law Act damages to the plaintiffs.

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 appellants appealed a motion judge's decision declaring that the limitation period for putative class members remained suspended under s. 28(1) of the Class Proceedings Act following the denial of class certification.

The Court of Appeal dismissed the appeal, holding that s. 28(1) provides an exhaustive list of circumstances that resume a limitation period, and denial of certification is not among them.

Consequently, the limitation period remains suspended indefinitely following a denial of certification, a result the court noted must be addressed by the Legislature.

In a class action alleging bacterial infections from epidural injections, the defendant physician, Dr. James, moved for documentary discovery and oral examinations of class members.

The court, considering the plaintiff's novel epidemiological causation theory, granted further documentary production for relevant, non-duplicative information.

However, it denied oral examinations for most class members, ordering written interrogatories for a selected sample instead, citing concerns about litigation delay, expense, and the passive role of class members.

The representative plaintiff could be re-examined orally.

An appeal concerning a freedom of religion challenge to the medical and legal criteria for determining death.

The appellant's substitute decision-makers sought to prevent the withdrawal of life support and to rescind a death certificate based on the appellant's religious belief that death occurs only when the heart stops beating, not upon total brain death.

The Court of Appeal dismissed the appeal, upholding the application judge's conclusion that the claim could not succeed.

However, the court provided important guidance on the proper analytical approach to Charter rights and Charter values, clarifying that the appellant should have been presumed to be a Charter rights holder for purposes of the substantive analysis, and that the application judge erred in her methodology regarding freedom of religion analysis and Charter values application to the common law.

Following the dismissal of a motion to certify a class action regarding unreliable hair drug testing at the Motherisk Drug Testing Laboratory, the plaintiff brought a motion under s. 7 of the Class Proceedings Act, 1992 to continue her action and join approximately 200 co-plaintiffs.

The court held that the limitation periods for the putative class members remain suspended under s. 28 of the Act until the defendants successfully move to dismiss the proceeding without an adjudication on the merits.

The court also held that the test for joining co-plaintiffs under s. 7 is the same as the test under the Rules of Civil Procedure.

The motion to join the co-plaintiffs was dismissed without prejudice due to insufficient pleading of material facts.

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.

The plaintiff brought a medical malpractice action against two physicians following the death of her father.

The plaintiff, acting as her father's substitute decision-maker, had requested that he be treated as 'full code'.

However, the physicians determined that the patient was actively dying and that CPR would almost certainly not benefit him and would only cause harm.

They wrote a 'do not resuscitate' order without the plaintiff's prior consent.

The plaintiff claimed damages under the Family Law Act and for nervous shock.

The Superior Court of Justice dismissed the action, finding that the physicians met the standard of care, that writing a DNR order is not a 'treatment' requiring consent under the Health Care Consent Act, and that the physicians did not owe a duty of care to the plaintiff that would conflict with their paramount duty to their patient.