Jessica DiFederico

A case management conference was held to set the timetable for two grouped appeals arising from a decision certifying a class action against the Province of Ontario but declining to certify it against 49 Children's Aid Societies regarding the use of 'Birth Alerts'.

The appeals will be heard by a five-judge panel to consider whether the court should depart from the Ragoonanan principle.

The case management judge set the schedule for responding materials, intervention motions, and factums.

This is a costs decision arising from a class action certification motion concerning the now-defunct "birth alerts" policy issued by Children's Aid Societies in Ontario.

The plaintiffs sought to certify a class action against the province of Ontario and 50 CAS defendants on behalf of mothers claiming compensation for discriminatory treatment.

The court certified the action against Ontario but denied certification against the CAS defendants due to structural defects in the pleading (the Ragoonanan problem).

The plaintiffs settled with Ontario for $300,000 in all-inclusive costs.

The CAS defendants sought $564,318.61 in costs.

The court reduced this amount to $335,000, applying a 40% discount under section 31(1) of the Class Proceedings Act to reflect the public interest nature of the case and access to justice concerns.

This decision certifies a class action against the Province of Ontario regarding the issuance of "Birth Alerts" by Ontario children's aid societies (CASs), but declines to certify the action against the CASs themselves.

The court finds that the claims against the CASs suffer from the "Ragoonanan problem"—the lack of a representative plaintiff with a claim against each defendant—and that the CASs acted independently, not collectively.

The action against Ontario, however, is certified on the basis of negligence and breaches of sections 7 and 15 of the Charter, as the Province had oversight authority and failed to act to stop the practice despite being able to do so.

The court sets out the certified class, common issues, and clarifies the preferable procedure for such claims.

The defendants brought a motion for summary judgment in an action alleging fraudulent conveyance.

The plaintiffs claimed that one defendant transferred her interest in a property to the other defendant to avoid a judgment in a separate fraud action.

The defendants argued the transfer was part of a family law settlement.

The court dismissed the motion for summary judgment, finding that there were genuine issues requiring a trial, particularly due to conflicting evidence and significant credibility issues regarding the transfer's purpose, the stated consideration, and the defendants' knowledge of the ongoing litigation.

The appellant suffered a bowel leak after surgery and developed septic shock.

He sued the hospital and a nurse for delayed diagnosis and treatment, alleging nursing negligence and medication errors.

The trial judge dismissed the action, finding no breach of the standard of care and that the appellant failed to prove causation, as his injuries were inevitable due to the onset of the sepsis cascade before the alleged negligence occurred.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the evidence or application of the 'but for' causation test.

The appellant appealed a motion judge's decision dismissing her negligence action as statute-barred under the Limitations Act, 2002.

The appellant was injured by a physiotherapist on August 12, 2011, but did not know his correct name at the time.

The motion judge found that the appellant could have reasonably discovered the physiotherapist's identity through due diligence more than two years before commencing the action.

The Court of Appeal upheld this decision, finding no error in the motion judge's conclusion that the appellant failed to exercise reasonable diligence, particularly after receiving a July 25, 2012 letter from Toronto Poly Clinic indicating that no one from that clinic had treated her on the date in question.

The appeal was dismissed with costs awarded to the respondent.

Appeal from a trial judgment finding that a nurse and hospital were liable for negligence in the care of a newborn who developed kernicterus due to untreated hyperbilirubinemia.

The trial judge found the nurse breached the standard of care by failing to report jaundice to the resident physician and that but for this negligence, phototherapy would have been commenced earlier, preventing the development of kernicterus.

The appellants challenged the causation findings.

The Court of Appeal upheld the trial judgment, finding that the trial judge properly inferred causation based on expert evidence and the factual progression of the infant's condition, and that the appellants could not escape liability by pointing to hypothetical negligence of other physicians.

The plaintiffs brought a medical malpractice action against the defendants after their newborn son developed kernicterus and suffered severe brain damage due to untreated hyperbilirubinemia.

The action against the physicians was settled, and the trial proceeded against the hospital and the nurse who cared for the infant overnight.

The court found that the nurse breached the standard of care by failing to report her observation of the infant's jaundice to a physician.

Applying a robust and pragmatic approach to causation, the court concluded that but for the nurse's negligence, a physician would have ordered a bilirubin test and initiated phototherapy in time to prevent the infant's injuries.

The hospital was held vicariously liable.

During a medical malpractice trial involving a newborn who developed kernicterus from untreated jaundice, the plaintiffs sought to qualify a registered nurse as an expert in perinatal nursing.

The defendants objected, arguing she lacked specific recent experience in tertiary hospital nurseries and was a 'roaming expert.' The court applied the Mohan and White Burgess frameworks, finding the proposed expert possessed the requisite specialized knowledge and experience in newborn care and jaundice assessment.

The court admitted the expert evidence, concluding its probative value outweighed any potential prejudice.

The plaintiffs appealed an order of a case management master requiring them to post additional security for costs in complex civil litigation.

The plaintiffs were non-residents of Ontario and did not claim impecuniosity, but argued that the strength of their claims justified denying security for costs.

The court held that the master applied the wrong legal standard by requiring the plaintiffs to show an "overwhelming likelihood of success" rather than the correct standard of a "good chance of success" when assessing the merits under Rule 56.01 of the Rules of Civil Procedure.

Because this constituted an error of law, the appeal was allowed in part and the matter was remitted to the case management master for reconsideration using the proper standard.