Hilik Y. Elmaliah

The minor plaintiff suffered a severe hypoxic-ischemic brain injury at birth due to the admitted negligence of the defendant hospital's nurses in artificially rupturing the membranes.

The defendant conceded the breach of the standard of care and that it caused the plaintiff's ataxic hypotonic cerebral palsy, but argued her cognitive and behavioural issues were caused by genetically inherited ADHD.

The court rejected the genetic ADHD theory, finding the birth injury was the sole cause of all the plaintiff's physical, cognitive, and behavioural deficits.

The court awarded over $5.2 million in damages, including $250,000 for general damages, $1.88 million for future loss of income, and extensive future care costs for therapies, supported independent living, and home modifications.

This costs endorsement followed two motions heard on August 29, 2016.

The defendant solicitors were successful in their motion for disclosure of a litigation file and in opposing the plaintiffs' cross-motion to strike a limitation period defence.

The court awarded partial indemnity costs to the defendant solicitors for both motions, totaling $12,607 for their motion and $2,700.12 plus HST for the plaintiffs' cross-motion.

The decision included deductions and offsets for costs related to the cross-examination of an affiant, as per Rule 39.02(4).

The plaintiffs brought an action for solicitor negligence against their former lawyers.

Two motions were heard: the defendants' motion for a further and better affidavit of documents, and the plaintiffs' cross-motion to strike paragraphs from the statement of defence pleading a limitation period defence.

The court dismissed the plaintiffs' motion to strike, finding the limitation defence was not plain and obvious to fail.

The court granted the defendants' motion for disclosure, ordering the plaintiffs to produce the complete litigation file from their subsequent lawyers, subject to privilege claims for non-parties.

In a medical negligence action arising from an infant’s diagnosis and treatment of meningococcal meningitis, the court was asked to determine whether correspondence between counsel created a binding settlement dismissing the claim against a hospital and several nurses without costs.

The plaintiffs argued the settlement was conditional on undertakings from co-defendants not to allege negligence against the hospital parties.

The court held that the October 12, 2012 letter was implicitly contingent on that condition precedent but found that the co-defendants’ later correspondence satisfied the required undertaking.

Accordingly, a binding settlement had been reached between the plaintiffs and the hospital defendants.

Because one plaintiff was a minor, the settlement remained subject to court approval under Rule 7.08 of the Rules of Civil Procedure.

Following a jury verdict in a medical negligence action, the court had issued written reasons on costs addressing the plaintiffs’ bill of costs and disbursements.

After the release of those reasons, counsel for the plaintiffs sent correspondence directly to the court seeking a further attendance and advancing additional arguments concerning expert disbursements that had been disallowed for lack of supporting information.

The court held that the correspondence constituted improper ex parte communication and an attempt to re‑argue the costs decision after final reasons had been issued.

The judge emphasized that the burden lies on the party claiming disbursements to demonstrate that they are reasonable and necessary and criticized counsel’s failure to provide sufficient supporting detail in the original materials.

The court refused to consider the contents of the letter and reaffirmed that the earlier costs decision was final.