Eric S. Baum

The plaintiff sued her dentist for negligence and lack of informed consent following a wisdom tooth extraction that led to a severe facial space infection.

The plaintiff alleged the dentist failed to meet the standard of care by not taking updated X-rays, injecting local anesthetic near the infection, not referring her to a specialist, and not extracting an opposing tooth.

The court found that the plaintiff provided informed consent and that the dentist met the standard of care.

The court accepted expert evidence that the infection was brewing prior to the extraction and that the extraction likely mitigated its course.

The claim was dismissed.

The appellant appealed the dismissal of her dental negligence action via summary judgment.

She alleged procedural unfairness, insufficient disclosure, and conflicting expert evidence regarding the amount of anesthetic administered and resulting injuries.

The Court of Appeal found no procedural unfairness or reversible errors, affirming the motion judge's use of enhanced fact-finding powers.

The court upheld the preference for the respondent's evidence on anesthetic dosage and lack of causation, and the rejection of the appellant's expert evidence due to admissibility issues.

The appeal was dismissed with costs awarded to the respondent.

Following a successful motion by the defendant law firm for a declaration that lawyer-client privilege had been waived by co-defendants in a proposed class action, the court determined the costs of the motion.

The opposing defendants argued for no costs or a reduced amount, citing the novel circumstances and section 31 of the Class Proceedings Act.

The court rejected these arguments, finding the motion was of considerable strategic importance and not a test case justifying a departure from normal costs rules.

Costs were fixed at $16,000 all-inclusive, split equally between the two groups of opposing defendants.

In a proposed class action concerning a failed condominium development, the plaintiff alleged professional negligence against Blaney McMurtry LLP, a law firm that prepared investment instruments.

Blaney McMurtry LLP brought a motion for a declaration that solicitor-client privilege with its co-defendants had been waived.

The court found that several co-defendants, including those who had settled with the plaintiff and provided an affidavit criticizing the law firm's work, had impliedly waived privilege.

This waiver occurred because they made the quality of legal advice a material issue in the litigation, thereby making it unfair and inconsistent to maintain privilege.

The motion for a declaration of waiver was granted.

The defendant, Dr. Simon Lin, brought a motion for summary judgment in a dental malpractice action.

The plaintiff, Sharon Shyn Ang, alleged negligence in administering excessive local anesthetic and causing dental damage.

The court granted summary judgment, dismissing the action, on the grounds that the plaintiff failed to provide admissible and persuasive expert evidence to establish a breach of the standard of care or causation.

The plaintiff's expert report was inadmissible as it was not in affidavit form and the expert was not qualified to opine on the standard of care in Ontario.

The appellants appealed a summary judgment that dismissed their action as statute-barred by the 15-year ultimate limitation period under the Limitations Act, 2002.

They argued that exceptions for concealment of information and incapacity applied, and also challenged the derivative nature of claims under the Family Law Act.

The Court of Appeal dismissed the appeal, finding no evidence to support the asserted exceptions to the limitation period and affirming that Family Law Act claims are derivative and tied to the principal claim, not independent.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' medical malpractice action, which was commenced nearly 16 years after the allegedly negligent jaw surgery.

The plaintiffs argued the 15-year ultimate limitation period should be tolled under section 15(4) of the Limitations Act, 2002, claiming the mother lacked capacity to commence a proceeding and that the defendants wilfully concealed medical records.

The court found the plaintiffs failed to provide persuasive medical or psychological evidence of incapacity and failed to establish any wilful concealment by the defendants.

The motion was granted and the action was dismissed as statute-barred.

This class action concerned a health hazard at a dental practice due to improperly cleaned instruments, leading to potential exposure to Hepatitis B, C, and HIV for approximately 9,000 patients.

The court approved a proposed settlement of $1,550,000 in damages, plus costs and disbursements, resulting in a net settlement amount of $1,058,550.

The settlement fund was divided into an Infected Claims Fund (70%) and an Exposed (Uninfected) Claims Fund (30%), with provisions for the Ontario Ministry of Health's subrogated claim.

The court also approved class counsel fees of $465,000, plus HST and disbursements, based on a 30% contingency fee.

The approval was based on the settlement being fair, reasonable, and in the best interests of the class, considering litigation risks and the benefits of a streamlined claims process.

The defendants, an architectural firm and a project manager, brought a motion for summary judgment to dismiss the plaintiff's claim, arguing it was statute-barred under the Limitations Act.

The plaintiff's claim stemmed from condensation and ice issues in his luxury home, which he attributed to faulty windows and ventilation designed and installed by the defendants.

The court dismissed the defendants' motion, finding that the plaintiff's claim was not discovered more than two years before the action was issued.

The court emphasized the plaintiff's reasonable reliance on the defendants' superior expertise and their ongoing efforts to resolve the problem, concluding that he lacked sufficient information to believe he had an actionable claim until July 2016.

The plaintiff sought to certify a class action alleging negligence against a dental office for improperly sterilized equipment leading to infectious disease exposure.

The defendants had issued a third-party claim against dental hygienists.

The parties reached an agreement on the terms of the Certification Order.

The court found an identifiable class with four sub-classes and agreed-upon common issues related to negligence.

The plaintiff was deemed an appropriate representative, and a litigation plan was accepted.

The action met the criteria under the Class Proceedings Act, 1992, and was certified as a class proceeding.

No costs were awarded.

The plaintiff/defendant by counterclaim, Lorne Rose Architect Inc., brought a motion for summary dismissal of the defendants'/plaintiffs' by counterclaim's counterclaim.

The counterclaim alleged breach of contract and negligence regarding architectural services, specifically failure to deliver timely drawings and inadequate coordination with engineers.

The court declined to grant summary judgment, citing the risk of duplicative proceedings and inconsistent findings of fact with the main action, where the same issues were raised in defence.

The motion was dismissed, and costs were awarded to the responding parties.

The defendant, Marker Volkl (International) GmbH, brought a motion under Rule 21.01 to strike the plaintiff's (Tucows.com Co.) claim for declaratory relief.

The plaintiff sought declarations regarding its ownership of a domain name after an adverse decision under the Uniform Domain Name Dispute Resolution Policy (UDRP), which ordered the transfer of the domain name to the defendant.

The defendant argued that the declarations sought were not justiciable and lacked utility as they related exclusively to the UDRP test, which Canadian courts have no jurisdiction to apply or enforce.

The court dismissed the motion to strike, finding that the jurisprudence on the interplay between UDRP decisions and domestic court jurisdiction for declaratory relief was unsettled and should not be resolved on a Rule 21.01 motion.

The plaintiffs sought leave to amend their Statement of Claim in a dental malpractice action, proposing new particulars of alleged negligence related to the defendant's surgical procedures and post-operative care.

The defendant argued these amendments constituted new causes of action outside the limitation period.

Applying a factually-oriented approach to "cause of action" under Rule 26.01, the court found that most proposed amendments arose from the same factual matrix as the original claim and did not constitute new causes of action.

Leave was granted for these amendments, as no non-compensable prejudice was found.

However, an amendment that pleaded evidence, contrary to Rule 25.06(1), was denied.

The defendant moved for summary judgment to dismiss the plaintiff's dental malpractice claim.

The court found genuine issues for trial regarding the standard of care and causation, citing conflicting expert opinions and factual disputes, particularly concerning the defendant's discovery evidence.

The motion for summary judgment was dismissed, and costs were awarded to the plaintiff.

Following an earlier ruling denying the defendants’ request to amend a litigation timetable and seek a summary judgment date, the court addressed the issue of costs for the related proceeding.

The plaintiff sought over $10,000 in partial indemnity costs, asserting that the defendants’ failure to properly file motion materials and respond to correspondence caused unnecessary steps and expense.

The defendants argued that costs should be reserved pending a forthcoming motion for leave to bring summary judgment and, if awarded, should be minimal.

The court found that the defendants’ failure to properly advance their motion and respond to requests caused unnecessary work for the plaintiff.

However, broader costs relating to the proposed summary judgment proceedings were deferred, and the plaintiff was awarded a reduced amount for specific unnecessary steps.

The defendants sought to adjourn their summary judgment motion and amend the litigation timetable to allow for the examination of their expert witness.

The plaintiff opposed the request, citing the defendants' failure to diligently pursue the motion and comply with the timetable.

The court found that the defendants caused the delay and failed to properly file their motion materials in accordance with Rule 37.08(1).

The court held there was nothing to adjourn and ordered that the defendants must obtain leave to bring any future summary judgment motion or motion to amend the timetable.

The plaintiffs purchased a property for development but later discovered erosion issues.

They sought legal advice from the moving defendants on whether they could terminate the transaction.

The moving defendants advised them to close the transaction and sue the real estate agents later.

The plaintiffs followed this advice, suffered a loss on resale, and sued multiple parties, including the moving defendants for professional negligence.

The moving defendants brought a motion for summary judgment.

The court dismissed the motion, finding that factual conflicts regarding the advice given and the absence of affidavit evidence from a second lawyer present at the meeting created genuine issues requiring a trial.