Frank J. McLaughlin

The defendants sought leave to appeal an interlocutory order of the case management judge, who directed that the plaintiffs' motion for class certification be heard prior to the defendants' motion for summary judgment.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the case management judge's discretionary decision regarding the timing of procedural motions.

The appellants appealed a jury verdict finding no negligence by the respondent radiologist and ultrasound technician regarding a fetal ultrasound that failed to detect a congenital abnormality.

The appellants argued the trial judge erred by reserving on a motion to strike the jury, failing to instruct the jury on the 'wrongful life' claim, and excluding OHIP billing evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's decision to reserve on the jury motion, holding that the jury's finding of no negligence rendered the legal distinctions between wrongful birth and wrongful life moot, and agreeing that the OHIP billing evidence was irrelevant.

Following an appeal decision, the parties provided a joint submission regarding the costs of the first and second trials.

The Court of Appeal issued supplementary reasons ordering that the costs of both prior trials be reserved to the judge presiding over the third trial, in accordance with the parties' agreement.

The appellant appealed a jury verdict in a medical malpractice action, arguing the trial judge erred in his instructions on informed consent and the use of a doctor's post-surgery opinion.

The Court of Appeal dismissed the appeal, finding the trial judge correctly instructed the jury on the modified objective test for informed consent, which considers whether a reasonable person in the appellant's position would have refused the procedure.

The court also found no error in the instructions regarding the post-surgery opinion evidence.

The appeal was dismissed with costs fixed at $15,000.

The infant plaintiff suffered severe brain injuries during birth following unsuccessful attempts by the defendant obstetrician to perform a forceps delivery in the labour room.

The trial judge found the obstetrician negligent for failing to transfer the mother to a delivery room where a c-section could be performed more quickly if the forceps failed.

The Court of Appeal allowed the obstetrician's appeal and ordered a new trial, finding that the trial judge erred by basing liability on a 'risks management' theory that was not pleaded or argued by the plaintiffs, and by using hindsight to impute knowledge of severe fetal distress to the obstetrician at the critical time.

The infant plaintiff allegedly suffered damages as a result of negligent surgery and follow-up treatment in Quebec while the plaintiffs were residents of that province.

The plaintiffs subsequently moved to Ontario and commenced an action in Ontario.

The defendants brought motions to stay the action on the basis that Ontario courts had no jurisdiction or that Ontario was not a convenient forum.

The motions judge granted the motions and stayed the actions.

The Court of Appeal dismissed the appeal, finding no real and substantial connection between the claim and Ontario, and concluding that Quebec was clearly the more appropriate forum.

The plaintiff sought leave to appeal an order declaring a mistrial and awarding solicitor and client costs thrown away to the defendants, following the plaintiff's late production of documents during trial.

The court found the order was interlocutory.

The motion for leave was brought out of time, and the court declined to extend the time due to an unexplained delay of over two years and a lack of settled intention to appeal.

Furthermore, the court held that even if time were extended, leave would be denied as the costs order was discretionary and there was no conflicting decision or good reason to doubt its correctness.

The motion was dismissed with costs.

The appellants appealed the dismissal of their medical malpractice action against an obstetrician following a birth injury that resulted in the infant suffering from cerebral palsy.

The appellants argued the obstetrician breached the standard of care by failing to prepare for an immediate caesarean section before attempting a mid-forceps delivery, and by failing to deliver the baby within ten minutes of declaring a dire emergency.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the standard of care only required an operating room to be immediately available, and that the obstetrician acted as expeditiously as possible under the circumstances.