Jane E. Ferguson

The plaintiff brought a medical negligence action against her family physician, alleging he failed to obtain informed consent regarding the increased relative risks of blood clots associated with the birth control pill Yaz.

The plaintiff suffered a stroke shortly after taking sample packs of Yaz provided by the physician.

The court dismissed the action, finding that the physician met the standard of care for disclosure and that the plaintiff would have taken the medication even if fully informed of the statistical risks.

Furthermore, the court held that the plaintiff failed to prove factual causation, as medical evidence indicated her stroke was cryptogenic and not caused by the medication.

The plaintiffs sought costs following a successful 25-day medical malpractice trial where they "beat" a Rule 49 offer.

The defendants proposed a lower costs amount.

The court awarded the plaintiffs $3 million in costs, finding their request consistent with similar complex medical malpractice cases and justified by the defendants' conduct, which unnecessarily lengthened the proceeding and increased the plaintiffs' legal work.

The court considered factors under Rule 57.01, including the complexity of the case, the plaintiffs' complete success, and the defendants' late disclosure and attempts to introduce contradictory evidence.

The plaintiff suffered a catastrophic brain bleed and traumatic brain injury during an elective multi-step medical intervention for an asymptomatic brain AVM.

The plaintiff brought a medical negligence action against the treating physicians, alleging a failure to obtain informed consent.

The Superior Court of Justice found that the physicians failed to adequately disclose the cumulative risks of the multi-step procedure, the likelihood of requiring surgical resection, and the risks of conservative management.

The court concluded that a reasonable person in the plaintiff's position would not have proceeded with the intervention had they been properly informed, and held the physicians liable for the plaintiff's injuries.

The plaintiffs brought a medical negligence action against several physicians, nurses, and a hospital, alleging that their negligence during the plaintiff mother's labour and delivery caused the infant plaintiff to suffer a severe hypoxic-ischemic brain injury resulting in cerebral palsy.

The plaintiffs alleged that an artificial rupture of membranes was negligently performed when the fetal head was high, causing a cord prolapse.

The court found that the defendant physicians and nurses met the standard of care, with the exception of one resident physician's failure to document the events, which was not causative.

The court also concluded that the plaintiffs failed to prove factual causation, as the clinical evidence at birth was inconsistent with the infant being completely deprived of oxygen for the 18 minutes following the cord prolapse.

The action was dismissed.

The plaintiffs in a medical malpractice action brought a motion to exclude the defendants' expert witness, a vascular neurosurgeon and interventional neuroradiologist, on the basis of bias.

The court conducted a voir dire and reviewed the expert's reports, past testimony, and relationship with the defendant physicians.

The court found that the expert was not impartial, acted as an advocate, failed to disclose his professional and personal relationship with one of the defendants, and assumed the defendants' evidence was credible while ignoring the plaintiffs' evidence.

The court concluded that the expert was unable and unwilling to comply with his duty to the court and excluded his evidence in its entirety.

This is a costs endorsement following the dismissal of the plaintiffs' action and third-party claim.

The court determined the quantum of costs payable by the plaintiffs to the defendant, Christine Raffan, and whether the plaintiffs or Ms. Raffan should pay the third-party costs.

The court awarded Ms. Raffan $300,000 in costs from the plaintiffs, finding the amount reasonable given the complexity, duration, and unproven fraud allegations.

The court further ruled that Ms. Raffan, not the plaintiffs, must pay the third-party costs, awarding David Corazza and Karen Caradonna $125,000 each, as their inclusion in the proceedings did not naturally flow from the plaintiffs' action.

The plaintiffs brought a motion for a mistrial during their ongoing trial, alleging reasonable apprehension of bias after the court dismissed their action.

The action was dismissed because the plaintiffs' expert, a forensic accountant, failed to provide an opinion on the standard of care for a CGA, which was deemed essential for the case's success.

The court, acting as a gatekeeper for expert evidence, excluded the expert's testimony based on the two-step test from *White Burgess Langille Inman v. Abbott and Haliburton Co.* The motion for mistrial was denied, and the dismissal of the action was affirmed.

The plaintiff brought a medical malpractice action against her rheumatologist, alleging he breached the standard of care by misdiagnosing her with gout, failing to perform a joint aspiration, and prescribing Allopurinol without informed consent, which led to her developing Stevens-Johnson Syndrome.

The court dismissed the action, finding that the defendant met the standard of care of a reasonable community rheumatologist in diagnosing gout clinically and prescribing Allopurinol.

The court also found that informed consent was obtained and that the plaintiff failed to prove causation, as expert evidence established she had a genetic predisposition making the adverse reaction inevitable regardless of the starting dose.

During a medical malpractice trial, the defendants moved to strike the jury following the plaintiff's closing address.

The court found that plaintiff's counsel crossed the line many times, making numerous misstatements that rendered correction by an appropriate charge impossible.

Concluding that the plaintiff's closing address undermined the fairness of the trial process, the court discharged the jury and determined it would decide the issues of liability and damages itself.

Following a trial where the plaintiff employer was awarded $537,885 in compensatory damages for an employee's fraudulent kickback scheme, the plaintiff sought supplementary orders for a constructive trust over the employee's property and punitive damages.

The court granted a constructive trust, finding a direct link between the stolen funds and the property, but stayed the order for 30 days to allow the defendant to pay the judgment.

The court also awarded $200,000 in punitive damages, emphasizing the need for deterrence and denunciation of employee theft.

The defendants, NSR Toronto and Dapeng Wang, brought a motion to strike the plaintiffs' claims against them for breach of contract, unjust enrichment, oppression, and conspiracy.

The court found that neither moving defendant was a party to the underlying contract, precluding the breach of contract and derivative claims.

The court also held that the oppression remedy under the OBCA did not apply to a BC corporation, and the conspiracy claims lacked the requisite clarity and precision.

The motion was granted, and the claims against the moving defendants were struck without leave to amend.

This trial decision addresses a claim by Sunwing Airlines Inc. against a former employee, Amilcar Mora, alleging his involvement in a kickback scheme.

Sunwing contended that Mora received over $500,000 in kickbacks from a Cuban contractor, Sylvie Leduc, between 2012 and 2017.

Mora denied the allegations and brought a wrongful dismissal counterclaim.

The court primarily focused on witness credibility, finding Sunwing's witnesses credible and Mora and a co-defendant, Sonya Sekulic, not credible due to numerous inconsistencies and contradictions in their testimony and documentary evidence.

The court found that Mora was involved in the kickback scheme and that Sunwing had just cause for his termination.

Application arising from a commercial land sale dispute over the calculation of acreage payable under an agreement of purchase and sale for development land.

The court interpreted the contractual definition of 'Net Area' to exclude lands not specifically developable for industrial, commercial, or residential use, including environmental features, a road right-of-way, and lands burdened by a hydro easement unless remediated.

The applicant had closed under protest while facing practical compulsion arising from a downstream sale and was permitted to pursue restitution rather than breach of contract.

The respondents were found to have been unjustly enriched by retaining an overpayment of $2,442,595 with no juristic reason for doing so.

The defendant brought a motion for a declaration that the plaintiff did not sustain a permanent serious impairment of an important physical, mental or psychological function following a motor vehicle accident.

The court applied the three-part test from Meyer v. Bright and considered the plaintiff's evidence, including testimony from his doctor and family members.

The court found that the plaintiff's impairments were permanent, serious, and substantially interfered with his activities of daily living.

The defendant's motion was dismissed, as the plaintiff met his onus of establishing that his impairments met the statutory threshold.

The defendant employer brought a Rule 21 motion to dismiss the plaintiff's constructive dismissal action.

The plaintiff had been temporarily laid off due to the COVID-19 pandemic and government-mandated closures.

The court held that under the Employment Standards Act and O. Reg. 228/20, the temporary layoff was deemed an Infectious Disease Emergency Leave (IDEL).

The court explicitly declined to follow a recent decision (Coutinho) and concluded that the IDEL regulation displaced the common law doctrine of constructive dismissal for COVID-19 related layoffs.

The plaintiff's action was dismissed.

A residents' association sought declaratory and injunctive relief to compel construction of a community centre at a specified site under minutes of settlement arising from planning appeals.

The court held the minutes were part of a planning framework under the Planning Act, not a final and everlasting commercial contract, and that essential terms remained dependent on further agreements including a section 37 agreement and related instruments.

The court further held the minutes did not obligate the municipality to construct, maintain, or operate the facility, and that the discretionary letters-of-credit provision did not create such an obligation.

Specific performance was refused, and the application was dismissed.

The defendant was found in civil contempt for failing to abide by court orders and subsequently destroying devices subject to a court-ordered forensic inspection.

The plaintiffs sought a stay of a related action, but the court declined to order a stay at this stage.

Applying the factors for civil contempt sentencing, the court determined that a period of incarceration was appropriate but deferred the sentence due to Covid-19 concerns, allowing the defendant 30 days to provide submissions.

The applicant tenant brought an application for a declaration that her commercial lease was valid and binding, and for an injunction restraining the respondent landlord from interfering with her business.

The landlord had engaged in a campaign of harassment, including destroying common areas and removing the air conditioning unit, in an attempt to force the tenant to vacate so he could carry out construction.

The court found the landlord's allegations of breach to be spurious, dismissed his counter-application for fundamental breach, and granted the tenant's application, ordering specific performance of the lease and requiring the landlord to complete outstanding repairs.

The defendant was previously found in contempt of court for failing to comply with orders requiring the return of confidential union information and the forensic inspection of his electronic devices.

Instead of purging his contempt, the defendant deliberately destroyed the devices.

The plaintiffs sought to stay the defendant's separate action in Brampton as a penalty.

The court declined to stay the action at this time and deferred sentencing to consider house arrest, requiring the defendant to provide details of his living situation.

Costs submissions were also ordered.

The plaintiff property developer brought a motion for an interlocutory injunction to compel the defendant purchasers to vacate a condominium townhouse and prevent their re-entry.

The defendants had taken interim occupancy but failed to close the transaction, refused to sign extension agreements, made unauthorized alterations to the unit, and engaged in abusive and harassing behaviour toward the plaintiff's staff.

The court granted the mandatory injunction, finding the defendants were trespassers, the plaintiff established a strong prima facie case, and the plaintiff was suffering irreparable harm to its property rights and reputation.