Erica Jill Baron

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.

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.

Application by a psychiatrist at McMaster Children's Hospital for an order committing a 16-year-old child with severe eating disorder and multiple mental health conditions to a secure treatment program at Syl Apps Youth Centre for 180 days.

The child opposed the application.

The court found that all six statutory criteria under section 164(1) of the Child, Youth and Family Services Act were met: the child had a mental disorder; had caused serious bodily harm to herself within 45 days preceding the application; had threatened serious bodily harm within 12 months; the secure treatment program would be effective; appropriate treatment was available; and no less restrictive method was appropriate.

The court granted the application for a 180-day commitment.

The appellants appealed a jury verdict in a medical malpractice action arising from the death of Kerry Samms from cancer.

The jury found that the defendants, including the family physician Dr. Wilraad Lottering, had not fallen below the standard of care.

The appellants challenged the trial judge's jury instructions on two grounds: (1) the standard of care instruction, arguing the jury was improperly directed to rely solely on expert evidence and could not apply common sense to determine whether standard medical practices were themselves negligent; and (2) the error of judgment instruction, arguing it was inappropriate in a case involving administrative failures rather than clinical judgment.

The Court of Appeal dismissed the appeal, finding that when read contextually, the jury instructions properly conveyed the applicable legal principles and that the jury would have understood they could apply common sense to assess whether standard practices were negligent.

This application concerned the legal definition of death and the withdrawal of life support for Shalom Ouanounou, a devout Orthodox Jew, who was declared brain dead but whose family believed he was alive under Jewish law.

The applicant sought an injunction to prevent the withdrawal of life support, rescission of the initial death certificate, and a declaration that the Consent and Capacity Board had jurisdiction over such disputes.

Following Ouanounou's natural death, the court considered whether the application was moot.

Citing a recent decision in *McKitty v. Hayani*, which addressed similar issues, the court found the application moot as there was no longer a live controversy and declined to exercise its discretion to hear the academic issues.

The applicant, though unsuccessful in the main application concerning the determination of brain death and the withdrawal of life support, sought partial indemnity costs from the respondent physician, arguing the case involved significant public interest issues.

The respondent, who was successful, did not seek costs but argued for each party to bear their own costs.

The court acknowledged the public interest dimensions of the case, particularly regarding the common law definition of death and Charter rights, but found it did not meet the "truly exceptional" standard for special costs as set out in Carter v. Canada (Attorney General).

Crucially, the court noted a lack of authority for awarding costs to an unsuccessful litigant against a private individual respondent, as opposed to a government or public authority.

Consequently, the applicant's request for costs was denied, and parties were ordered to bear their own costs.

An appeal from a motion judge's decision certifying a class action and granting partial summary judgment against an anaesthesiologist in a bacterial infection outbreak case.

The motion judge certified the class proceeding and found the defendant breached his duty of care regarding infection prevention and control practices.

The appellate court allowed the appeal on procedural fairness grounds, finding that the motion judge reformulated the certified common issue without notice to or submissions from the parties, and then decided the summary judgment motion on the basis of this new formulation.

The court held that this violated procedural fairness and entitled the defendant to a new hearing.

Dr. Stephen Rose James sought leave to appeal portions of a motion judge's order that certified a class action and defined common issues, specifically regarding the wording of the breach of standard of care common issue and the certification of punitive damages as a common issue.

The court granted leave to appeal the breach of standard of care issue, finding serious debate regarding the procedure followed when the motion judge amended the common issue post-hearing without submissions.

However, leave to appeal the punitive damages common issue was refused, as it was deemed common to the class and not an issue extending beyond the parties' interests.

The court heard urgent applications and a cross-application for the appointment of a guardian for personal care and property for an incapacitated individual.

The primary applicant sought guardianship to challenge a doctor's life support plan at the Consent and Capacity Board, while the cross-applicant (spouse) intended to consent to the plan if appointed.

The court dismissed both applications for guardianship of personal care, finding that the need for decisions could be met by a less restrictive alternative, specifically by allowing the Consent and Capacity Board to determine the appropriate substitute decision-maker.

The court emphasized that the Board is the expert body for such life-and-death decisions.

Applications for guardianship of property were adjourned.

The primary applicant was ordered to pay partial indemnity costs to the spouse and a statutory fee to the Public Guardian and Trustee, partly due to the inappropriate conduct of counsel and the lack of admissible evidence.

Thelma Rycroft died of septic shock after a gastroscopy performed by Dr. Dean Chen.

Her spouse and son brought an action for negligence, alleging inadequate pre-operative preparation and negligent continuation of the procedure despite retained food in her stomach, leading to aspiration pneumonia.

The court found Dr. Chen liable for breaching the standard of care by failing to instruct Mrs. Rycroft on an extended clear liquid diet and by proceeding with the gastroscopy after encountering food and liquid in her stomach.

The court concluded that Dr. Chen's negligence caused Mrs. Rycroft's death and awarded damages to her spouse and son under the Family Law Act, along with OHIP's subrogated claim.

O.P., suffering from end-stage glioblastoma, applied for a declaration that his planned physician-assisted death was permitted by law under the criteria established in Carter v. Canada (Attorney General), 2015 SCC 5.

The applicant argued that court authorization was not legally required but sought a declaratory order for practical reasons due to healthcare providers' concerns about civil, criminal, or disciplinary liability, and issues with the Coroners Act.

The court rejected the premise that physician-assisted death was permissible without court order pending federal legislation, asserting that judicial authorization remained a constitutional remedy under s. 24(1) of the Constitution Act, 1982 to ensure the rule of law and safeguard vulnerable persons.

The court ultimately granted an authorization order for physician-assisted death, finding that O.P. met all the Carter criteria, and provided ancillary relief regarding the Coroners Act and Family Law Act.

M.N., suffering from terminal cancer with a prognosis of less than six months, sought a court order declaring that she met the criteria for a physician-assisted death under the constitutional exemption granted in Carter v. Canada (Attorney General), 2016 SCC 4.

She also sought a declaration that her physician-assisted death would not require physicians to notify the coroner under the Coroners Act.

The court found M.N. to be a competent adult with a grievous and irremediable medical condition causing enduring and intolerable suffering, and that she clearly consented to the termination of her life.

The application was granted, allowing M.N. to proceed with physician-assisted death and exempting involved healthcare providers from certain Criminal Code provisions and coroner notification requirements.

Bryan Motz, a 24-year-old with severe cerebral palsy, was the plaintiff in a medical malpractice action.

His mother, Leslie Motz, acting as litigation guardian (LG), sought to settle the action by dismissal without costs due to concerns about potential adverse cost awards.

Justice Daley rejected this settlement, found Leslie Motz in a conflict of interest, removed her as LG, and appointed the Public Guardian and Trustee (PGT).

The PGT subsequently moved to vary Justice Daley's order, arguing lack of notice to both the PGT and Leslie Motz, and insufficient grounds for the PGT's appointment.

The court found that both the PGT and Leslie Motz were entitled to notice and that the PGT's appointment as LG of last resort should only occur if no other proper person is willing and able.

The court varied Justice Daley's endorsement, reinstating Leslie Motz as LG and ordering the PGT to provide a report with objections or recommendations regarding the proposed settlement to Justice Daley.

Physicians sought to withdraw life support from an incapable patient while the substitute decision-maker refused consent.

The Court held, by majority, that withdrawal of life support in the circumstances constituted treatment under Ontario’s Health Care Consent Act, 1996 and therefore required consent under the statutory regime.

The majority concluded that disputes over refusal of consent must be addressed before the Consent and Capacity Board, which may substitute its decision if statutory best-interests criteria are not met.

Dissenting reasons would have resolved the dispute under the common law rather than the statutory board process.

The appeal was dismissed, with dissent.

A not‑for‑profit organization sought an interlocutory injunction preventing a bank from terminating its banking relationship pending trial or the outcome of related Federal Court of Appeal proceedings.

The bank had provided approximately four months’ notice of termination after the organization’s charitable status had been revoked by the Canada Revenue Agency.

The court held that banks may terminate banking relationships without cause provided reasonable notice is given and that reasonableness should be assessed in ordinary circumstances rather than based on the plaintiff’s regulatory difficulties.

Applying the RJR‑MacDonald test, the court found the plaintiff failed to establish a strong prima facie case, failed to prove irreparable harm, and did not satisfy the balance of convenience.

The request for mandatory injunctive relief was therefore refused.