Harry Underwood

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 Court of Appeal issued a costs endorsement following an appeal.

The court made no order as to the costs of the motion before the motion judge, as no submissions were made and the issue was not raised at the Divisional Court.

The Divisional Court's costs order was maintained.

The court fixed the costs of the appeal at $10,000 each for the MFP respondents and the Bondy Riley respondents, inclusive of disbursements and GST.

The appellants commissioned an investigative report in preparation for a fraud action.

A senior official mistakenly believed a former lawyer for the appellants was still part of their legal team and sent him a copy of the report to review as a potential witness.

The appellants later added the lawyer's former firm as a defendant in the action without first retrieving the report.

When the appellants demanded the return of the report claiming litigation privilege, the lawyer refused.

The Court of Appeal held that while the initial disclosure did not waive privilege against the adversaries, the appellants lost the right to assert privilege over the document in the lawyer's hands once they sued his firm without first demanding its return.

The appellants appealed an order granting a sending order under the Mutual Legal Assistance in Criminal Matters Act and dismissing their applications to set aside search warrants and evidence-gathering orders.

The investigation related to alleged price-fixing and output restriction in the sulfuric acid industry contrary to the United States Sherman Act.

The Court of Appeal held that the warrants and orders were valid, the informations provided sufficient grounds, and the Sherman Act offences qualified as offences under the Act and Treaty.

The court also found that section 8(1) of the Act does not contain a reciprocal offence requirement and upheld the refusal to continue a sealing order.

Leave to appeal was granted but the appeal was dismissed.

A ratepayers' association applied for judicial review of a school board's decision to lease a closed school site to a private developer for a seniors' complex.

The ratepayers argued the board breached a duty of fairness by failing to consult the public before approving the lease, relying on a voluntary board policy.

The Divisional Court dismissed the application, finding that the board owed no general duty of fairness to local residents regarding the disposition of surplus property.

Furthermore, the board's internal policy did not create a legitimate expectation of public consultation because it was not published or relied upon by the community.

The appellants appealed a judgment declaring that the sale of Hydro One shares by the Crown contravened s. 48(1) of the Electricity Act.

Before the appeal was heard, the government withdrew the public offering and enacted new legislation repealing s. 48(1) and expressly authorizing the sale of the shares.

The Court of Appeal dismissed the appeal as moot, finding that the legal and factual foundation of the dispute had disappeared and that the circumstances did not justify an exception to the general rule against hearing moot appeals.

The appellants appealed the dismissal of their medical malpractice action against the respondent doctors.

The appellants alleged negligence in the administration of an epidural anaesthetic during childbirth, claiming it caused a dural tear and nerve damage resulting in ongoing pain.

The trial judge dismissed the action, finding no dural tear or nerve damage, and that the claim was barred by the limitation period.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of fact were supported by the evidence and not tainted by palpable and overriding error.

The appellant corporation appealed its capital tax assessments, arguing that management fees paid to independent contractors in Alberta should be deemed salary under s. 302(7) of Reg. 183 of the Corporations Tax Act, thereby allocating more capital to Alberta (which does not levy capital tax).

The Court of Appeal dismissed the appeal, applying the plain meaning rule and the 'modus operandi' test.

The Court held that because the appellant's normal practice in Alberta was to use contractors rather than employees, the services were not 'normally performed by employees of the corporation' within the meaning of the regulation.

The College of Physicians and Surgeons appealed a Divisional Court decision that set aside a Discipline Committee's finding of professional misconduct against a physician for sexual impropriety.

The Court of Appeal agreed with the Divisional Court that the Committee misapprehended crucial evidence regarding the complainants' credibility and potential collusion.

However, the Court of Appeal allowed the appeal in part to order a rehearing, noting the record contained evidence capable of supporting a misconduct finding, and to strike the Divisional Court's order that the College pay the costs of the initial Committee hearing.

The plaintiffs sought damages for economic loss and property damage after a fire broke out on an oil drilling rig.

The fire was caused by arcing in a heat trace system that ignited inflammable Thermaclad wrap.

The Supreme Court of Canada held that the manufacturer, Raychem, breached its duty to warn the rig owner of the product's inflammability and could not rely on the learned intermediary defence.

However, the builder, SJSL, was shielded from liability by an exclusion clause in its contract with the owner.

The Court declined to allow the rig's lessees to recover contractual relational economic loss due to policy concerns over indeterminate liability.

Finally, the Court abolished the common law maritime rule that contributory negligence acts as a complete bar to recovery, allowing the rig owner to recover 40% of its damages despite being 60% at fault.

The appellant brought an action for libel and slander against the respondent.

At trial, the jury found for the respondent on the defence of qualified privilege.

The Court of Appeal for Ontario dismissed the appeal.

The Supreme Court of Canada dismissed the further appeal, holding that despite questions regarding the alleged perversity of the jury verdict, the jury was properly instructed and the Court was not prepared to interfere with the verdict.