Greg A. Carr

Following an obstetrical malpractice trial where the jury found the defendant obstetrician 32% liable for the infant plaintiff's severe cerebral palsy, the defendant brought a motion under Rule 52.08 to dismiss the action or order a retrial.

The defendant argued the jury gave conflicting answers on causation and that there was no evidence to support their findings on the standard of care and delay in delivery.

The court dismissed the motion, finding the jury's use of the word 'contributed' did not conflict with the 'but for' causation test, and that there was ample expert evidence supporting the jury's conclusion that the defendant's failure to promptly prepare for an emergency c-section caused the infant's brain damage.

Judgment was ordered to be entered in accordance with the jury's verdict.

During an ongoing medical negligence trial involving a minor plaintiff who suffered severe brain damage at birth, the parties disputed the phrasing of the jury question on causation.

The plaintiffs argued for the phrase 'caused or contributed to', relying on recent jurisprudence involving multiple tortfeasors.

The defendant argued for the conventional 'but for' standard.

The court held that the factual matrix was not so confusing as to preclude the conventional 'but for' test, and ordered the jury questions to be phrased using the 'but for' standard.

The applicants sought an order under s. 140 of the Courts of Justice Act declaring the respondent a vexatious litigant.

The respondent had engaged in a decade-long pattern of re-litigating issues related to a real estate transaction, despite numerous unsuccessful actions and appeals.

The court found that the respondent met the characteristics of a vexatious litigant, as he persistently brought proceedings to determine issues already decided and rolled forward grounds into subsequent actions.

The application was granted against the primary respondent, but dismissed against his daughter, who had not initiated the vexatious proceedings.

The plaintiff commenced an action relating to a 2006 real estate transaction, which was the third proceeding initiated regarding the same transaction.

The defendant lawyer moved to strike the claim against him for disclosing no reasonable cause of action, while the other defendants moved to dismiss the action as frivolous, vexatious, and an abuse of process.

The court granted both motions, finding the claim against the lawyer incomprehensible and incapable of amendment, and the claim against the other defendants a clear attempt to re-litigate issues already decided in prior proceedings.

The appellants appealed the dismissal of their motions for summary judgment regarding claims of nuisance, trespass, and negligence arising from the application of biosolids on their farm.

The Divisional Court allowed the appeal, finding that the motion judge erred in law by failing to apply the proper summary judgment principles from Hryniak v. Mauldin.

The plaintiffs had failed to provide expert evidence or sufficient factual evidence to establish the elements of their claims, and the motion judge improperly speculated on what evidence might be available at trial.

The action against the appellants was dismissed.

The respondents brought a motion to quash an appeal from a trial judge's order declaring a mistrial and discharging the jury.

The appellant argued the order was final because it went to the jurisdiction of the court.

The Court of Appeal held that the trial court did not lose jurisdiction but expressly retained it, making the mistrial declaration an interlocutory order.

The motion to quash the appeal was granted.

The appellant appealed a jury verdict awarding her $2,500 in general damages (netting $0 after the statutory deductible) and a costs award of $140,000 following a motor vehicle accident trial where liability was admitted.

The appellant argued the trial judge erred by failing to charge the jury on the 'Thin Skull Rule' and by making comments that raised a reasonable apprehension of bias.

The Divisional Court dismissed the appeal, finding the jury verdict was reasonable and the trial judge's comments did not show bias.

The court also granted leave to appeal the costs order but dismissed the appeal, finding the trial judge properly considered the Rule 57.01 factors despite not providing written reasons.