Genevieve Currie

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 respondent borrower sued for the return of a $138,000 commitment fee after a commercial mortgage transaction failed to close.

The transaction failed because the borrower did not meet the required rental achievement figure due to deteriorating economic conditions.

The trial judge ordered the return of the fee, finding the borrower was not in 'default' because the failure was not its fault.

The Court of Appeal allowed the appeal and dismissed the action, holding that in a commercial contract, 'default' simply means failure to fulfill an obligation, regardless of fault.

The lender was entitled to retain the commitment fee.