John J. Adair

This is an appeal from a medical malpractice judgment where the trial judge found the appellant physician negligent in treating a stroke victim, leading to permanent injuries.

The core issue on appeal was causation: whether the trial judge erred in finding that the physician's negligence caused the injuries, specifically by not requiring the plaintiff to establish precisely which treatment option would have prevented the unfavourable outcome.

The Court of Appeal dismissed the appeal, affirming the trial judge's robust and pragmatic application of the "but for" causation test, particularly in the context of an evidentiary gap created by the defendant's negligence.

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

The appellants, Tyson Rogerson and his adoptive parents, appealed the dismissal of their medical malpractice action against two physicians, Dr. Elyse Savaria and Dr. Nkiruka Nwebube.

The appellants argued that the physicians breached their duty of care by failing to report a suspected risk of harm to Tyson to the Children's Aid Society (CAS) under s. 72 of the Child and Family Services Act, which they contended would have prevented Tyson's catastrophic brain injury.

The Court of Appeal upheld the trial judge's findings that the physicians did not breach the standard of care in failing to report, and even if there was a breach, the appellants failed to prove causation, as the CAS would not have intervened in a way that would have prevented the injury.

The appeal was dismissed.

The plaintiffs moved to compel the defendants, Saad Aljabri and Mohammed Aljabri, to produce law firm trust ledgers and to answer certain questions from examinations.

The court held that trust ledgers are presumptively protected by solicitor-client privilege and that the plaintiffs failed to rebut this presumption.

The court further concluded that the "crime/fraud" exception to solicitor-client privilege does not apply to civil wrongs, including civil fraud, following the principle of horizontal stare decisis.

Consequently, the motion to compel production of trust ledgers was dismissed.

The motion to compel Mohammed Aljabri to answer undertakings and other questions was allowed, subject to redactions for privileged information in bank statements.

The defendants brought a motion for leave to appeal the order of Dietrich J. dated December 15, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving parties to pay $5,000 in costs to the responding party.

This endorsement addresses the settlement of an order following a summary judgment granted in favour of the plaintiff.

The parties disagreed on the form of the order.

The court clarified that an order must strictly reflect the operative language and relief granted in the prior reasons for decision, and cannot be used to introduce new or additional relief, re-argue points, or vary previously granted relief.

Consequently, several paragraphs from the plaintiff's proposed draft order, which sought new relief or procedural directions not granted in the original reasons, were excluded from the final order.

The parties to a putative class action agreed to discontinue the action with prejudice, as similar claims were being pursued in a proposed class proceeding in British Columbia.

The court approved the discontinuance pursuant to s. 29(1) of the Class Proceedings Act, 1992, and dispensed with the requirement to give notice to the class, noting the early stage of the proceeding and the continuation of the claims in British Columbia.

The applicant brought a motion to compel a witness, his brother, to answer questions and produce documents refused during a Rule 39.03 examination.

The examination was conducted to gather evidence for a pending contempt motion against the trustees of family trusts for failing to produce accounting documents.

The court ordered the witness to answer the questions, finding that the information sought regarding certain mortgages had a semblance of relevancy to the issues on the contempt motion.

The plaintiff, a holding company for a professional athlete, purchased a luxury home from the defendant corporation.

Shortly after moving in, the occupants were confronted by a stranger looking for the previous tenant, a known crypto fraudster who had been kidnapped and whose angry investors frequently visited the property.

The plaintiff brought a motion for summary judgment seeking rescission of the agreement of purchase and sale.

The court granted the motion, finding that the vendor made a fraudulent misrepresentation by marketing the property as private and secure while knowing of the ongoing safety risks.

The court also found that the safety risk constituted an undisclosed latent defect that rendered the property unfit for habitation.

The court ordered rescission of the contract and, in the alternative, equitable damages.

This endorsement addresses the issue of costs following a successful dependant's support claim under the Succession Law Reform Act.

The applicant sought full indemnity costs, while the respondents argued for partial indemnity.

The court determined that the deceased testator was responsible for the litigation by failing to make adequate provision for the applicant's support, thus justifying costs payable from the estate.

However, considering the applicant's significantly higher settlement offer compared to the trial outcome, the respondents' more reasonable offer, and the applicant's excessive legal staffing, the court awarded costs on a partial indemnity basis, fixed at $160,000.00, inclusive of fees, disbursements, and taxes, payable by the Estate Trustees.

The defendants (Moving Parties) sought an order for the issuance of two letters of request to judicial authorities in the Kingdom of Saudi Arabia to compel the examination of two witnesses, Yasir O. Al-Rumayyan and Fahad Nasser Alarfaj.

The Moving Parties argued these witnesses had relevant evidence for their motion to set aside Mareva orders, particularly regarding alleged contradictory positions taken by the plaintiffs (controlled by Saudi Arabia's Public Investment Fund) in this action versus unrelated U.S. litigation (LIV Golf Litigation) concerning PIF's independence from the KSA government.

The motion was unopposed by the plaintiffs.

The court found the proposed witnesses had prima facie relevant evidence and that the requirements under Rules 39.03 and 34.07(2) for examining non-parties and issuing letters of request for witnesses outside Canada were met.

The order for letters of request was granted.

The defendant, Bombardier Inc., brought a motion seeking an order for the plaintiff, Triple-K Consult Ltd., to deliver a further and better affidavit of documents.

Bombardier argued it had a contractual right to audit the plaintiff's activities to verify compliance with their sales representative agreement and applicable laws before commissions were payable.

The plaintiff contended it had complied with the audit request and that further demands were beyond the contractual scope.

The court largely dismissed the defendant's motion, finding that the plaintiff had substantially complied and that many of the requested documents were not relevant or better pursued through discovery.

The court ordered only the production of supporting documents for $35,000 in expenses claimed by the plaintiff's principal.

An adult child sought dependant's relief from their deceased mother's estate under the Succession Law Reform Act, claiming inadequate provision for support.

The court found the applicant was a dependant, as the deceased had systematically provided ongoing support, including food, shelter, and financial assistance, due to the applicant's inability to support themselves.

While the deceased's testamentary framework of providing an income stream was deemed appropriate, the amount was found inadequate to meet the applicant's accustomed standard of living.

The court ordered an increase in monthly support, adjusted annually for inflation, and required the applicant to vacate the deceased's condominium, denying a claim for past rent credit.

The plaintiff brought an action for specific performance of an agreement of purchase and sale for a commercial property.

The parties had negotiated the terms over several months and signed the agreement, along with a side letter allowing the defendant's lawyer 48 hours to review the legal wording.

The defendant subsequently attempted to renegotiate the business terms and ultimately repudiated the agreement when the property's value increased.

The court found that a binding agreement had been reached and that the side letter did not permit renegotiation of business terms.

Because the property was uniquely suited to the plaintiff's business needs and damages would be inadequate, the court ordered specific performance.

The Blankenstein and Fialkov families, joint owners of a 168-unit apartment building through corporate entities, sought to separate their interests due to an irreconcilable breakdown in their relationship, exacerbated by an internal dispute within the Fialkov family.

The Blankensteins applied for a winding-up of Godstone Limited and a court-ordered buy-out of the Fialkovs' 50% interest at fair market value.

The primary contentious issue was the valuation date for the buy-out, with the Blankensteins seeking a current date (January 2023 or later) to reflect a market downturn, and the Fialkovs advocating for March 2022 (the market peak).

The court found that a buy-out was appropriate under s. 207 of the OBCA and determined the fairest valuation date to be November 3, 2022, the date of the application hearing, balancing the parties' expectations and the market fluctuations.

The court also addressed the applicants' alternative request for a public sale, finding it unnecessary given the buy-out order.

The defendants, a law firm and its principals, sought to vary the terms of an injunction previously granted to the plaintiff law firm.

The original injunction mandated specific distributions of legal fees from client files transferred from the plaintiff to the defendants.

The defendants requested a new distribution ratio, citing a year of financial records and the end of the plaintiff's financing of disbursements.

The court found inordinate delay in the litigation process and substantial changes in circumstances, satisfying the heavy onus required to vary an injunction.

The motion to vary the fee distribution was granted, changing the allocation to 40% for plaintiffs, 40% for defendants, and 20% into a segregated trust fund.

A trial management conference was held to determine the procedures for an upcoming trial regarding an estate application.

The court directed that the trial proceed as a hybrid hearing, with most participants attending in person and one witness testifying virtually.

The court also issued procedural directions regarding the use of CaseLines, the marking of exhibits, and the preparation of a joint document brief.

This decision addresses a request by the respondent (defendant in the original action) to limit the scope of a new trial on liability and damages, which had been ordered by the Court of Appeal in a prior decision.

The court dismissed the request, emphasizing that the evidence and issues were complex, interrelated, and interdependent.

Limiting the trial to specific issues would risk artificial credibility assessments and unreliable fact-finding.

The defendant, Dr. Saad, sought a declaratory order that evidence he would provide in support of a renewed motion to stay the action would be inadmissible in a pending contempt proceeding against him, relying on the s. 13 Charter right against self-incrimination.

The Plaintiffs opposed, arguing the evidence was not compelled and the proceedings were not "other proceedings." The court dismissed Dr. Saad's motion, holding that his evidence on the stay motion was not statutorily compelled, and therefore s. 13 of the Charter was not engaged.

The court clarified that the proper time to seek use immunity would be at the contempt hearing itself.

The appellants appealed the dismissal of their medical malpractice action against an obstetrician following a catastrophic birth injury.

The infant suffered acute near-total oxygen deprivation prior to birth, resulting in severe permanent brain damage.

At trial, the judge dismissed the action, finding no breach of the standard of care and no causation.

On appeal, the Court of Appeal found the trial judge's reasons were legally inadequate regarding causation and one of the standard of care issues (the failure to complete the delivery with Kielland forceps).

The reasons failed to explain critical findings, preventing meaningful appellate review.

The appeal was allowed and a new trial ordered on all issues of liability and damages.