John A. Tamming

This endorsement addresses the assessment of damages in a failed real estate transaction.

The court determines the appropriate date for assessing damages and evaluates expert evidence from both parties regarding the market value of the subject property.

The court prefers the evidence of the moving parties' appraiser, finding the value of the property as of August 18, 2022, to be $650,000, and awards damages accordingly.

The plaintiff sued the defendant surgeon for medical malpractice following a brachial plexus injury sustained during shoulder replacement surgery.

The sole issue was whether the plaintiff proved surgical negligence.

The court concluded that the injury was more likely than not the result of surgical negligence, specifically due to excessive force or prolonged stretch applied to the arm during the glenoid exposure phase of the surgery.

The court found for the plaintiff, dismissing the defendant's arguments regarding non-negligent causes and emphasizing that while a bad outcome alone does not prove negligence, the extreme rarity and nature of the injury provided strong circumstantial evidence of a breach of the standard of care.

The plaintiff, David Steele, sued the defendant, Victor Bicknese, for injuries sustained after falling through broken wooden slats in the defendant's barn.

The plaintiff, a 74-year-old employee, suffered an odontoid fracture (cervical spine injury) and other chronic symptoms.

The court found the defendant breached his duty of care under section 3 of the Occupiers' Liability Act by failing to maintain a reasonably safe premises and having no system for inspecting or repairing broken slats, which were known to break regularly.

The court found no contributory negligence by the plaintiff, despite his awareness of the broken slats, due to the defendant's fundamental obligation to provide a safe workplace and the impracticality of avoiding hazards while working.

The plaintiff was awarded damages for lost income and general damages for pain and suffering.

The plaintiffs sought non-pecuniary damages for loss of guidance, care, and companionship following a death.

The defendants were noted in default, leading to an assessment of damages under the Family Law Act.

The court considered the deceased's relationship with family members, including challenges related to substance abuse and efforts towards rehabilitation, as well as potential future contributions.

Damages were awarded to the parents and one sibling, but not to other siblings due to insufficient evidentiary support for their claims.

The plaintiff, a commissioned salesperson with 23 years of service, claimed he was constructively dismissed when the employer sent a letter altering his commission structure and reducing his recognized seniority to 16 years.

The court found that while the reduction in seniority was a fundamental change, it was not unilateral because subsequent correspondence showed the employer was open to discussing and verifying his actual start date.

As the change was not unilaterally imposed, the claim for constructive dismissal was dismissed.

The plaintiff, a dental office employee of 7.5 years, sued for wrongful dismissal after being terminated without notice.

The defendant dentists alleged just cause, claiming the plaintiff falsified work hours and manipulated surveillance cameras.

The court found no reliable evidence of fraud or dishonesty, concluding the plaintiff was wrongfully dismissed.

The court awarded 8 months' pay in lieu of notice but declined to award aggravated or punitive damages, finding the employer's conduct during termination was not unduly insensitive or in bad faith.

The appellant mortgaged his family homestead farm for $350,000 and subsequently defaulted on the mortgage.

The mortgagees obtained a default judgment for foreclosure.

The appellant moved to set aside the default judgment, which was dismissed by the motion judge.

On appeal, the Court of Appeal found that the motion judge made four material errors in his analysis: (1) mischaracterizing the appellant's mental frailties as merely a competency issue rather than considering their impact on his responsiveness; (2) viewing the appellant's substantial interest in the property solely as sentimental attachment rather than recognizing the substantial equity remaining after mortgage repayment; (3) confining the "reasonable prospect of repayment" analysis to refinancing rather than considering repayment through sale; and (4) failing to properly weigh the magnitude of the windfall to the mortgagees against the severe prejudice to the appellant.

The Court found that a sale of the property would generate net equity of approximately $250,000 to $337,000 after full repayment of the mortgage, and that the mortgagees would suffer no prejudice while the appellant would lose his life's savings.

The appeal was allowed and the foreclosure was converted to a judicial sale.

The plaintiffs (Moles) and defendant (Manwell) brought cross-motions regarding the admissibility and number of expert witnesses in a medical negligence case.

The Moles sought to restrict Manwell to one expert, while Manwell sought to preclude the Moles' expert (Schatzker) from testifying on a novel surgical technique or, alternatively, to allow all three of his experts to testify if Schatzker's evidence was admitted.

The court found Schatzker's novel evidence on the modified surgical technique to have sufficient threshold reliability for admission.

Consequently, the Moles' motion to restrict Manwell's experts was dismissed, and Manwell was permitted to call all three of his proposed expert witnesses.

Following a successful disability insurance action, the plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct before and after litigation justified enhanced costs.

Alternatively, the plaintiff sought partial indemnity costs up to the date of a settlement offer and substantial indemnity thereafter under Rule 49.

The defendants argued costs before the offer should be reduced due to the plaintiff abandoning a related wrongful dismissal claim.

The court held that partial indemnity costs remained the default before the settlement offer but reduced those fees by 25% to account for the abandoned claim.

Substantial indemnity costs were awarded from the date of the offer forward, resulting in a total costs award exceeding $114,000.

An employee with approximately twelve years of service brought a wrongful dismissal action after being terminated during an alleged downturn in available work.

The employer argued that there was insufficient work and that the employee would have earned little or no income during any reasonable notice period.

The court held that the employee remained entitled to a common law wrongful dismissal remedy notwithstanding potential exemptions under the Employment Standards Act.

Applying the Bardal factors and accounting for economic conditions affecting the employer’s business, the court determined that a reasonable notice period was eight months rather than the twelve months that might otherwise apply.

The employee’s mitigation efforts, including temporary subcontract work and starting a business, were found reasonable, and damages were calculated based on eight months’ pay less mitigation income and termination pay already received.

The court determined costs arising from a motion relating to the sale of jointly owned property after one party filed a consumer proposal under the Bankruptcy and Insolvency Act.

The moving party had sought relief including lifting the statutory stay and authorizing the listing and sale of the property.

After a prior order lifted the stay and allowed the property to be listed for sale, the motion was ultimately dismissed as moot once the mortgagee took possession.

The court held that the motion became duplicative following the earlier order and should not have continued.

In the circumstances, the court declined to award costs to either party.

The defendant brought a motion to strike the plaintiff's Statement of Claim, which sought to impose a resulting or constructive trust over a camp property.

The court found that the plaintiff, having been incorporated in 2011, could not maintain causes of action based on historical events that occurred prior to its incorporation.

The court struck the Statement of Claim and dismissed the action without leave to amend, but without prejudice to the commencement of a fresh proceeding under the Charities Accounting Act or the court's inherent jurisdiction over charities.