Erin S. Chesney

This decision addresses a motion by the plaintiffs for production and directions regarding claims of privilege over thousands of documents and answers to questions refused on discovery in a complex, multi-party commercial litigation.

The court reviews the legal principles governing solicitor-client privilege, litigation privilege, and common interest privilege, and applies them to various categories of documents and questions.

The court provides detailed directions on the production of documents, the sufficiency of evidence to support privilege claims, and the process for resolving ongoing disputes about privilege.

The plaintiff, Hayley Szeto, brought a medical negligence claim against her gynecologist surgeon, Dr. Sari Kives, after suffering a bowel perforation during a reproductive organ surgery.

The plaintiff alleged the defendant fell below the standard of care by failing to detect and repair the perforation.

The court found that the bowel injury occurred during the surgery and was significant (1-2 cm), and that the defendant failed to adequately inspect the bowel, especially given additional risk factors like significant adhesions, uterine fundus perforation, obesity, and epiploica.

The court concluded that the defendant's failure to meet the standard of care caused the plaintiff's damages, leading to emergency surgery and severe complications.

The Toronto-Dominion Bank (TD) brought a motion under Rule 5.05 to sever certain allegations advanced by Tarion Warranty Corporation (Tarion) into two separate actions.

Tarion, along with Carlo and Dino Taurasi, opposed the motion.

TD argued that Tarion's negligence claim (related to a cheque kiting scheme) and its claim to set aside a settlement agreement as a fraudulent conveyance were discrete and temporally separate.

The court dismissed the motion, finding no undue complexity, delay, or prejudice, and that the claims arose from the same series of transactions with significant factual overlap, promoting the convenient administration of justice and avoiding multiplicity of proceedings.

This costs endorsement followed a decision on an appeal and cross-appeal.

Given the divided success of the parties on both the appeal and cross-appeal, the Court of Appeal ordered that each party bear its own costs.

The applicants, Melissa Taurasi and Nelda Taurasi, sought a declaration that a global charge registered by The Toronto-Dominion Bank (TD) on their properties was void, alleging duress, undue influence, lack of consideration, and absence of independent legal advice.

The TD Charge was part of a settlement agreement following a $37 million cheque kiting fraud perpetrated by StateView Homes, a company owned by the applicants' husbands.

The court dismissed the application, finding no undue influence, noting that the applicants had legal representation and received a benefit from the settlement, and that their current position contradicted their separate negligence claims against their former counsel.

The appellant, K.S., appealed a decision by the Consent and Capacity Board (CCB) that confirmed a Community Treatment Order (CTO) and her incapacity regarding the Community Treatment Plan (CTP).

The appeal argued that the respondent physician failed to obtain proper consent from K.S.'s substitute decision-maker (SDM) in accordance with the Health Care Consent Act, 1996 (HCCA), specifically concerning informed consent (s. 11(3)) and prior capable wishes (s. 21).

The court dismissed the appeal, finding that the s. 11(3) issue was not properly raised before the CCB, and that the CCB made no palpable and overriding error in concluding that consent was obtained in accordance with s. 21, distinguishing the case from G.A. v. Kantor.

James Bay Resources Limited, having been awarded damages for breach of contract and defamation in a prior decision, sought costs of $607,759.

The court awarded costs of $309,401.91 inclusive of HST against Mak Mera Limited only, making no costs award against Adewale Olorunsola due to divided success.

The court significantly reduced the requested costs, citing over-lawyering, lack of detail in the bill of costs, the applicant's conduct unnecessarily increasing litigation costs (e.g., late document production, issues with counsel retention leading to trial adjournment), and the disproportionality of the claimed costs to the damages awarded.

The court applied a 30% reduction to account for these factors and specific deductions for certain claimed expenses.

The appellant contested the denial of statutory accident benefits following a 2010 automobile accident, bringing simultaneous proceedings before the Divisional Court by way of statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law.

The courts below held that, where there is a limited statutory right of appeal, judicial review should only be exercised in exceptional or rare cases.

The Supreme Court of Canada held this was an error: a circumscribed statutory right of appeal on questions of law does not restrict the availability of judicial review on questions of fact or mixed fact and law, and the Strickland framework does not support imposing a heightened threshold for judicial review in such circumstances.

The Court further found that the LAT adjudicator's reconsideration decision was unreasonable because he failed to consider the effect of the reinstatement of income replacement benefits on the validity of the initial denial and failed to have regard to relevant tribunal jurisprudence on the point.

The appeal was allowed and the matter remitted to the LAT adjudicator for reconsideration.

This is an appeal from a medical negligence action.

The appellants, the spouse and sons of the deceased, Brian Willick, sued Dr. Willard (emergency surgeon) and Dr. Csanadi (family doctor) for alleged negligence in treating Mr. Willick after a fall, which they claimed led to his death from a ruptured splenic hematoma.

The trial judge dismissed the action, finding that the doctors met the standard of care and that there was no detectable splenic injury attributable to the initial fall.

The appellants challenged the trial judge's application of causation, sufficiency of reasons on standard of care, and credibility assessments.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the respondent doctors met their respective standards of care, deferring to the trial judge's credibility findings, and concluding that the causation analysis was not flawed given the absence of a breach of duty.

The court also noted that the trial judge's reasons, while terse, were adequate for appellate review.

This decision addresses a motion concerning the authenticity of a photocopied letter that the defendants sought to introduce as an exhibit during cross-examination.

The plaintiff objected, arguing insufficient authentication.

The court, after a voir dire, clarified the low evidentiary threshold for admissibility, ruling that the witness's initial statement that the signature "appeared to be his" was sufficient to mark the document as an exhibit.

The ultimate determination of the letter's authenticity and weight was reserved for the trier of fact at the conclusion of the trial, emphasizing that authenticity disputes are best resolved at the case's end.

The plaintiff, James Bay Resources Limited, brought a motion for leave to introduce three previously undisclosed documents at trial, pursuant to Rule 53.08 of the Rules of Civil Procedure.

The defendants opposed the admission.

The court applied the updated discretionary Rule 53.08(1) test, which requires a reasonable explanation for the failure to disclose, no uncompensable prejudice to the opposing party, and no undue delay.

While the explanation of inadvertence was considered weak, the documents were highly relevant, and the defendants had conducted discovery on them without demonstrating actual prejudice or requesting an adjournment.

The court granted leave to admit the documents and awarded the defendants costs on a substantial indemnity basis.

The Joint Liquidators of Stanford International Bank Limited (SIB) appealed the dismissal of their negligence claim against The Toronto-Dominion Bank (TD Bank).

SIB was a vehicle for a massive Ponzi scheme.

The Liquidators claimed TD Bank was negligent in providing correspondent banking services by failing to detect and protect SIB from insider abuse.

The Court of Appeal upheld the trial judge's finding that TD Bank did not owe a novel duty of care to monitor SIB for internal fraud, as this fell outside the scope of TD Bank's undertaking as a correspondent bank.

The court also affirmed the trial judge's alternative finding that even if a duty existed, there was no breach of the standard of care, and that the trial judge's procedural rulings regarding witness recall were fair.

The appeal was dismissed.

The Respondents brought a motion seeking the recusal of the presiding judge and a declaration of mistrial, alleging a reasonable apprehension of bias.

The allegations stemmed from the judge's conduct and rulings in three prior decisions related to the ongoing application, specifically claiming predisposition towards the Applicant, disparagement of the Respondents, and insinuation into the appeal process.

The Court dismissed the motion, finding that, when viewed realistically and in full context, the judge's actions did not give rise to a reasonable apprehension of bias.

The decision emphasized that adverse rulings, even if potentially erroneous, do not equate to bias and should be addressed through the appeal process.

Costs were awarded to the Applicant.

The applicant sought to vary a previous judgment regarding contract beneficiaries and liability for knowing receipt.

The court declined to change the finding on beneficiaries (para 19) as it was an intentional commercial interpretation.

The court did remove an erroneous finding of breach of contract against CIBC Mellon, but declined to substitute it with a finding of knowing receipt, as that relief was not sought in the initial application.

The court granted the applicant's request to introduce evidence of damages related to data sharing by all custodial entities of Mellon Financial Corporation at the time of the agreement, despite the previous finding that those entities were entitled to receive the data.

The Court of Appeal heard a motion to review a single motion judge's order that dismissed requests to expedite an appeal and waive the requirement to file a formal liability order.

The panel upheld the motion judge's decision not to expedite the appeal, finding no error in principle or misapprehension of evidence.

However, the panel varied the order to relieve the moving parties from the obligation of filing a formal liability order to perfect their appeal, noting that the liability order was a final order.

The motion was otherwise dismissed, and costs were fixed to be awarded to the successful party on the appeal.

Following a successful summary judgment motion for defamation and the dismissal of the defendant's anti-SLAPP motion, the plaintiff sought costs.

The plaintiff had made multiple offers to settle for significantly less than the $50,000 damages awarded at trial.

The court considered the offers to settle, the principles of proportionality, and the statutory provisions regarding costs for anti-SLAPP motions.

The court fixed costs payable by the defendant to the plaintiff at $50,000 all-inclusive.

The defendant brought a motion for an order requiring the plaintiff, a corporation, to post security for costs pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging insufficient assets in Ontario to cover potential costs.

The court reviewed the two-part test for security for costs, which places the initial onus on the defendant to demonstrate a good reason to believe the plaintiff has insufficient assets.

The court found that the defendant failed to meet this initial onus, as their evidence was based on speculation rather than concrete indicia of financial difficulty.

The plaintiff, an operating business with ongoing investments and a subordinated major liability, provided sufficient evidence of its financial stability and ability to meet a costs order.

The motion was dismissed.

The plaintiff, Dr. Dick Eric Zoutman, brought a motion for summary judgment in a defamation action against James Graham, who had posted defamatory comments about Dr. Zoutman on online physician rating websites.

Graham brought a cross-motion for anti-SLAPP relief.

The court dismissed Graham's anti-SLAPP motion, finding it was brought too late and that Graham failed to acknowledge authorship of most impugned statements.

The court granted summary judgment to Dr. Zoutman, finding the postings defamatory, published, and made with malice.

Graham's defence of fair comment failed due to false factual premises and malice.

Dr. Zoutman was awarded $25,000 in general damages and $25,000 in aggravated damages, totaling $50,000, and a permanent injunction against Graham.