John A. Tamming

The plaintiff brought an action for civil sexual assault and constructive dismissal against her former employer.

The defendant had previously pled guilty to sexually assaulting the plaintiff in the workplace but denied liability in the civil action, claiming his plea was coerced.

The court rejected the defendant's evidence, finding him liable for the sexual assaults and constructive dismissal.

The court awarded a total of $137,689 in damages, including $75,000 for general and aggravated damages, $5,000 in punitive damages, and amounts for future counselling, delayed entry into the workforce, and constructive dismissal.

This endorsement addresses outstanding issues of damages, interest, and costs following a summary judgment motion in a real estate breach of contract action.

The court awarded the plaintiffs an additional $3,914.60 in damages for legal expenses and carrying costs that were inadvertently omitted from the previous assessment.

Prejudgment interest was approved in the amount of $10,886.87.

Finally, because the plaintiffs obtained a judgment more favorable than their Rule 49 offer, the court awarded them partial indemnity costs up to the offer date and substantial indemnity costs thereafter, subject to a minor reduction.

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.

In a medical malpractice action arising from catastrophic injuries inflicted on a newborn by his biological mother, the plaintiffs alleged that a family physician and a pediatrician negligently failed to report child protection concerns under s. 72 of the Child and Family Services Act.

The court found that the family physician conducted adequate mental health and coping assessments, and that neither physician had reasonable grounds to suspect the infant was a child in need of protection.

Although the family physician breached the standard of care by not providing the pediatrician with a fuller mental health history, that breach had no causal consequence.

The court further held that, even if a report had been made, the Children's Aid Society would likely have treated the matter as low risk and would not have intervened in time to prevent the assault.

The action was dismissed, with damages nonetheless fixed by agreement at $13,250,000 under Rule 7.08.

The plaintiff, a volunteer fire captain and administrative assistant, was terminated without cause by the municipality's CAO based on unfounded, sexist rumours and gossip.

The court found the termination was conducted in bad faith and was tainted by patent gender-based discrimination.

The CAO also made defamatory statements about the plaintiff to the municipal council, which lost the protection of qualified privilege due to malice.

The court awarded the plaintiff six months' reasonable notice, $75,000 in moral damages, $35,000 for Human Rights Code violations, $20,000 for defamation, and $60,000 in punitive damages.

During a wrongful dismissal trial, the plaintiff sought disclosure of a recording of a closed municipal council meeting where her termination was discussed.

The defendants claimed solicitor-client, settlement, litigation, and confidential communications privilege.

Applying the Wigmore criteria, the court ordered partial disclosure.

The portion of the recording where the CAO justified the termination decision was ordered disclosed, as the benefit to the litigation outweighed the injury to the municipal relationship.

However, portions involving legal advice, anticipated negotiations, and council questions remained privileged.

The applicant applied for statutory accident benefits after slipping and falling on ice while shoveling her parking spot.

The respondent denied the claim on the basis that the incident did not meet the definition of an 'accident' under section 3(1) of the Statutory Accident Benefits Schedule.

The Licence Appeal Tribunal dismissed the application, finding that the applicant did not meet the purpose or causation tests.

The Tribunal held that shoveling an empty parking spot is not an ordinary and well-known activity to which automobiles are put, and the use or operation of the vehicle was not the direct cause or dominant feature of the applicant's injuries.

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.

The plaintiff sued for slander after the defendant publicly alleged at a chamber of commerce meeting that the plaintiff was receiving a $50-per-keg kick-back from a beer supplier connected to local events.

The court found the statement was a factual accusation, was false, and was defamatory because it implied dishonest or quasi‑criminal conduct affecting the plaintiff’s professional reputation.

Defences of justification, fair comment, qualified privilege, and responsible communication were rejected, as the allegation was made recklessly without verification.

Although the plaintiff proved no economic loss, the court found reputational harm in the small community and awarded general damages.

A third‑party claim for contribution and indemnity against the beer company was dismissed because the alleged information source never made the statements attributed to him.

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.

The applicant, who has a physical disability, filed a human rights complaint alleging discrimination because the respondent condominium corporation refused to pay for the installation of hand railings on the front and back steps of her unit.

The steps were designated as exclusive use common elements.

The Tribunal found that while the respondent approved the installation of the railings, it was not responsible for the cost of alterations to exclusive use common elements under the Condominium Act and the corporation's Declaration.

The application was dismissed as the respondent did not contravene the Human Rights Code.