Erica Jill Baron

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.

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.

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 appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

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.

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.

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.

The plaintiff moved to certify a proposed class action arising from allegedly unreliable Motherisk hair-strand drug and alcohol testing used in child protection, family, and criminal proceedings.

The court held that while the pleading disclosed a cause of action and there was evidence of a broad group of potentially affected persons, the proposed proceeding failed on common issues, preferable procedure, and representative plaintiff criteria.

The court found the alleged systemic negligence did not materially advance the class members' real claims because compensable harm depended on highly individualized proof that a particular test result was false and adversely influenced a particular proceeding.

The litigation plan for individual hearings was found unworkable and procedurally unfair.

Certification was refused.

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.

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.

The appellant emergency room physician appealed a trial judgment finding him liable in negligence for the death of a patient from bacterial meningitis.

The trial judge found the appellant breached the standard of care by failing to consider meningitis, perform a lumbar puncture, or administer standard treatment when the patient presented with confusion, fever, and a history of decreased consciousness.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the patient's mental status, her reliance on an infectious disease specialist's standard of care evidence, or her causation analysis applying the 'but for' test.

A Sanderson costs order against the appellant was also upheld.

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.

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.

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.