Harvey S. Consky

The plaintiff sued an emergency room physician for medical malpractice after losing his left testicle to torsion.

The plaintiff alleged the physician breached the standard of care by failing to perform a cremasteric reflex test, order a repeat ultrasound, and refer him to a urologist when he presented to the emergency department with testicular pain.

The court dismissed the action, finding that the physician met the standard of care by reasonably diagnosing epididymitis based on the patient's history, presentation, and a recent ultrasound showing normal blood flow.

The court also found that causation was not established, as the plaintiff did not prove he was suffering from intermittent testicular torsion at the time or that a urological consult would have saved the testicle.

This is a costs endorsement following an appeal from a trial judgment.

The Court of Appeal, having previously issued reasons on May 27, 2019, invited the parties to make submissions regarding the costs of the trial.

After reviewing the parties' written submissions, the court ordered that the appellant Buckingham Properties Inc. pay to the respondent Pita Royale Inc. o/a Aroma Taste of the Middle East its costs of the trial in the all-inclusive amount of $27,500.

Appeal from a trial judgment concerning improper termination of a commercial restaurant lease and illegal distraint of chattels.

The trial judge found the lease termination proper but the distraint illegal, awarding conversion damages of $58,190.74, punitive damages of $10,000, and costs.

The appellate court allowed the appeal in part, reducing conversion damages to $18,539.71 after careful analysis of which items were properly subject to distraint, upheld the punitive damages award, set aside personal liability of the corporate principal, and remitted the costs issue for written submissions.

The plaintiff tenant brought an action against the defendant landlord for illegal distraint and improper termination of a commercial lease for a restaurant.

The tenant fell into arrears of rent.

The landlord changed the locks, terminating the lease, but simultaneously distrained all of the tenant's newly purchased chattels and equipment, refusing to allow the tenant to remove them.

The court held that while the termination of the lease was lawful due to the arrears, the simultaneous distraint of chattels was illegal, as a landlord cannot both forfeit a lease and distrain chattels at the same time.

The court awarded the tenant damages for conversion of the chattels based on their purchase price, as well as punitive damages due to the landlord's unreasonable and high-handed conduct.

The individual landlord was held jointly and severally liable with his corporation.

The defendants moved to amend their Statement of Defence to plead a statutory bar under the Workplace Safety and Insurance Act, 1997 (WISA), asserting the plaintiff was a Schedule 1 worker.

The plaintiff opposed, arguing the amendments were untenable and statute-barred.

The court dismissed the defendants' motion, finding that the plaintiff would suffer uncompensable prejudice due to the defendants' unexplained delay (laches) and their prior conduct, which established an independent contractor relationship, giving rise to promissory estoppel.

The court emphasized the application of equitable principles in interpreting the Rules of Civil Procedure.

Steven Kark, an investment advisor, sued David Potter for breach of contract regarding the sale of Kark's "Book of Business" and a subsequent joint venture.

The parties had signed a "Revised Agreement" outlining commission payments.

Potter argued the agreement was a non-binding letter of intent or that Kark breached its terms by not becoming a partner, failing to deliver promised assets, leaving the business, or engaging in an undisclosed ATM venture.

The court found the agreement to be a binding contract, rejecting all of Potter's alleged breaches.

The court also dismissed Potter's argument that Kark failed to mitigate losses by not repurchasing the business.

Kark was awarded damages of $159,279.33 and costs.