Jaan E. Lilles

The defendants successfully sought costs after obtaining summary judgment dismissing a medical malpractice claim.

The court, while acknowledging the plaintiffs' difficult experience and self-representation, awarded discounted costs to the defendants, emphasizing the principle of indemnity for the successful party tempered by the expectation of the unsuccessful party.

The appellants (defendant doctors) appealed a trial judgment finding them liable for failing to obtain informed consent for a multi-step medical treatment plan that resulted in catastrophic brain injury to the plaintiff.

The appeal addressed the nature and extent of a physician's duty to obtain informed consent, on which physicians this duty rests, sufficiency of reasons, evidentiary issues (including expert witness exclusion), and costs.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that all three appellant doctors failed to provide adequate disclosure regarding the cumulative risks of the treatment plan, and that the plaintiff would not have proceeded had he been properly informed.

Leave to appeal costs was refused.

This decision concerns a request for reconsideration of a prior order granting leave to the plaintiffs to amend their statement of claim.

The defendant argued that an inadvertent error in the draft amendments quoted in the previous reasons was material, suggesting an attempt to introduce a negligent misrepresentation claim after the limitation period.

The court clarified that the actual proposed amendments were less problematic than the version inadvertently quoted.

The court affirmed its previous decision to grant leave to amend, finding the actual proposed amendments were more benign and did not warrant a different outcome.

No costs were awarded for the reconsideration request.

The plaintiffs brought an action against several physicians involved in the treatment of their son, alleging a failure to diagnose Fragile X Syndrome, which led to the birth of a second child with the same genetic disorder.

The plaintiffs moved to amend their statement of claim to provide greater particularity, while the defendant physician moved to strike the claim, arguing he owed no duty of care to the parents of his patient.

The Superior Court of Justice granted the motion to amend, finding it did not introduce a new, statute-barred cause of action.

The court dismissed the motion to strike, holding that it was not plain and obvious that a novel duty of care could not be recognized between a physician and the parents of a patient in the context of genetic testing and family planning.

In a medical malpractice action, the defendant brought a motion to disqualify the plaintiffs' expert epidemiologist, Dr. Michael Freeman.

The court granted the motion, finding that Dr. Freeman lacked specialized knowledge in the specific medical areas (metabolics and neurology) relevant to the causation question.

His "comparative risk" methodology was deemed outside the mainstream study of epidemiology for specific causation, and his reports indicated a lack of objectivity by primarily critiquing other experts rather than offering independent analysis within his own expertise.

The court also noted that his proposed evidence was not necessary, as the plaintiffs' other expert covered the same points.

The defendant brought a motion to determine the admissibility of documents created during fitness to practice proceedings by the College of Nurses of Ontario concerning the plaintiff.

The defendant argued that s. 36(3) of the Regulated Health Professions Act renders these documents inadmissible in civil actions.

The plaintiff contended this was re-litigation and that capacity investigations should be treated differently from discipline processes.

The court concluded that s. 36(3) applies broadly to fitness to practice proceedings, affirming the policy objective of separating college and civil proceedings to encourage expert participation without fear of civil action.

The motion was granted, and all documents created for the College's proceedings related to the plaintiff were declared inadmissible.

The plaintiff underwent a nephrectomy performed by the defendant urologist after being diagnosed with suspected renal cell carcinoma.

Post-surgery pathology revealed the mass was a benign renal abscess.

The plaintiff sued for medical malpractice, alleging breach of the standard of care, lack of informed consent, and that the unnecessary removal of her kidney accelerated her end-stage renal failure.

The Superior Court of Justice dismissed the action, finding that the defendant met the standard of care as the clinical presentation and imaging strongly indicated malignancy and a biopsy was not the standard of care.

The court also found that informed consent was obtained and that the plaintiff failed to prove causation, as her pre-existing poorly controlled diabetes would have necessitated a kidney transplant regardless of the nephrectomy.

A lawyer appealed a professional misconduct finding based on in-court incivility during a securities prosecution.

The majority held that reasonableness review applied and accepted the disciplinary framework, but found its application unreasonable on the record.

The Court concluded the allegations were made in good faith with sufficient factual foundation in context.

The appeal was allowed and the complaints were dismissed.

An appeal from a trial judge's decision regarding the interpretation of an agreement.

The appellants challenged the trial judge's interpretation of key contractual language.

The Court of Appeal upheld the trial judge's decision, finding that the trial judge correctly applied relevant legal principles, did not find the language ambiguous, and gave it its plain meaning with proper consideration of the surrounding provisions and circumstances.

The appeal was dismissed with costs awarded to the respondent.

David W. Fickel sought leave to appeal from a motion judge's order that stayed the execution of a summary judgment for payment on a promissory note, pending the final resolution of the main action.

The motion judge had granted summary judgment to Fickel on the promissory note but stayed its execution due to the interconnectedness of the claims arising from the same share purchase agreement.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's discretionary decision to grant a stay under Rule 20.08, and that the proposed appeal did not involve matters of general or public importance beyond the immediate parties.

Following dismissal of a motion by a law firm seeking leave to withdraw from representation mid‑trial due to unpaid legal fees, the court determined the appropriate costs award.

The successful clients sought full indemnity costs while the law firm argued that no costs should be awarded or that any award should be partial indemnity with a set‑off against outstanding legal accounts.

The court held that the circumstances did not justify elevated costs and fixed costs on a partial indemnity basis.

However, applying equitable principles of set‑off, the court allowed the law firm to deduct the costs award from its unpaid legal account.

The moving party law firm sought permission to withdraw as counsel of record for the plaintiffs mid-trial due to non-payment of legal fees and an alleged breakdown of the solicitor-client relationship.

The clients opposed the motion, arguing that withdrawal would cause significant prejudice.

The court dismissed the motion, finding that despite a prior consent agreement, the court retained discretion to refuse withdrawal.

The court held that the clients would suffer serious prejudice as it was not feasible for them to self-represent in complex commercial litigation, they had already paid substantial fees, and the law firm held security on the clients' properties.

The defendants sought to dismiss the plaintiffs' medical malpractice action for delay at a status hearing under Rule 48.14.

The action was commenced in 2007, but the plaintiffs failed to advance the litigation, missing deadlines for documentary discovery and examinations for discovery.

The court found a complete lack of communication between the plaintiffs and their counsel, and no acceptable explanation for the delay.

The court also found that the defendants would suffer prejudice due to the passage of time, as the events occurred in 2005.

The action was dismissed for delay.

Following a prior decision striking the plaintiff’s Statement of Claim in its entirety without leave to amend, several successful defendants sought costs.

The court considered the governing principles for costs awards, including the requirement that costs be fair and reasonable and the factors under Rule 57 of the Rules of Civil Procedure.

Although the defendants sought higher partial indemnity amounts, the court exercised discretion to reduce the awards.

The court ordered the self-represented plaintiff to pay fixed costs to multiple defendants reflecting their success on the motions while ensuring the amounts were reasonable in the circumstances.

The defendants brought motions to strike the plaintiff’s Fresh as Amended Statement of Claim alleging fraud, negligence, defamation, breach of contract, and numerous other causes of action arising from a physician assessment and subsequent complaints to the professional regulator and review board.

The court held that the pleading failed to set out material facts supporting the alleged causes of action and instead consisted largely of bald allegations and inflammatory assertions.

Claims relying on materials from professional discipline proceedings were barred by s. 36(3) of the Regulated Health Professions Act, 1991, and the regulatory bodies and their officials were protected by statutory immunity absent properly pleaded bad faith.

The court also found the claim constituted an improper collateral attack on the outcomes of the regulatory complaint and review process.

The entire claim was struck without leave to amend.