Joni Marie Dobson

This mid-trial ruling addresses two issues in a medical negligence jury trial: (1) the proper form of the jury questions on causation, and (2) whether the jury should be required to provide reasons or particulars for their verdict on causation.

The court reviews the relevant case law and determines that the "but for" test should be used in the jury questions on causation, rather than the "caused or contributed to" language, given the facts of the case.

The court also declines to require the jury to provide reasons or particulars for their finding on causation, citing the risk of confusion and the lack of necessity in the circumstances.

This decision addresses the second part of a bifurcated trial concerning a construction contract dispute.

The plaintiff, a construction company, sought payment for unpaid invoices, while the defendants counterclaimed for deficient and incomplete work, as well as punitive, exemplary, and general damages under the Consumer Protection Act.

The court found that the defendants had unjustifiably terminated the contract.

Consequently, the plaintiff's claim for outstanding payments was largely allowed, with a minor reduction for an acknowledged credit.

The defendants' extensive counterclaim for damages was mostly dismissed, as they failed to provide sufficient evidence for many claims and were found to be the breaching party.

Only a small portion of their compensatory damages claim for specific deficiencies was allowed.

The appellants appealed a summary judgment dismissing their medical malpractice action as statute-barred.

The Court of Appeal affirmed the motion judge's finding that the claim was discoverable no later than February 6, 2014, when the family met with a medical malpractice lawyer, and therefore the action, issued on April 11, 2016, was out of time.

The court rejected the argument that expert reports were necessary for discoverability, emphasizing that a claim is discovered when a plaintiff has knowledge of material facts for a plausible inference of liability, not necessarily when the merits are confirmed by expert opinion.

Five patients of Dr. Cathy Frank, an obstetrician and gynecologist, brought separate actions for medical negligence and breach of fiduciary duty.

The actions were commenced between September 2012 and August 2013, outside the two-year limitation period under the Limitations Act, 2002.

The defendants moved for summary judgment on the basis that the claims were statute-barred.

The motion judge granted the motions, finding that the plaintiffs had not acted with reasonable diligence to discover their claims.

The plaintiffs appealed, arguing that the motion judge erred in interpreting the discoverability principle and that a press release issued in November 2011 by counsel for the plaintiffs should have restarted the limitation period.

The Court of Appeal dismissed the appeals, upholding the motion judge's decision.

This endorsement addresses the costs of an unsuccessful motion brought by the plaintiffs to strike the defendants' jury notices.

The defendants were entirely successful in defending the motion and were presumptively entitled to costs under Rule 57.01.

The court considered the amount in dispute ($1,500,000), the importance of the issue (right to jury trial), and the moderate complexity of the motion.

The plaintiffs had rejected an offer to withdraw the motion without costs.

The court awarded partial indemnity costs to both sets of defendants, discounting the amounts to align with the costs outlines served prior to the motion and disallowing senior counsel's attendance for the doctor defendants as unnecessary.

The plaintiffs moved to strike jury notices filed by the defendants after the plaintiffs amended their Statement of Claim to double the damages sought from $750,000 to $1.5 million, prompted by new expert reports on future care costs.

The court applied the principles from Dow v. Ottawa Hospital-Civic Campus to determine if the amendment reopened pleadings for all purposes, including the timely filing of jury notices.

The court found that the amendments were necessary, implicitly contained new allegations regarding the plaintiff's limitations and future care needs, significantly changed the nature of the action, and necessitated further discoveries.

As the defendants filed the jury notices promptly and were not the party seeking the amendment, the court concluded that pleadings were reopened for all purposes, granting the defendants a statutory right to a jury trial.

The plaintiffs' motion to strike the jury notices was dismissed, as were their alternative requests for costs and further discoveries of the defendants.

The defendants moved for summary judgment in multiple consolidated medical malpractice actions, arguing that the plaintiffs' claims were statute-barred by the Limitations Act, 2002.

The plaintiffs contended that their claims were only discovered after a 2011 press release and media coverage regarding allegations against Dr. Frank.

The court applied the objective discoverability test, finding that the plaintiffs were aware, or ought to have been aware, of the material facts giving rise to their claims well before the press release.

The information from the press release did not provide new material facts related to their individual care but rather served as evidence to support existing allegations.

Consequently, the court determined that the plaintiffs failed to demonstrate due diligence in discovering their claims, and thus, their actions were statute-barred.

In a medical negligence action, the court addressed how the trial should proceed where liability was to be determined by a jury but a limitations defence invoking the doctrine of special circumstances was to be decided by the judge alone.

The defendants argued that the jury must hear all evidence or that the jury notice should be struck, asserting that the evidence relating to liability and the limitation issue was intertwined.

The plaintiffs proposed limiting the jury’s exposure to evidence related to liability and having the limitation issue addressed separately.

The court held that under s. 108(3) of the Courts of Justice Act it could direct that certain issues of fact be tried without a jury.

The trial was ordered to proceed in two phases: a jury phase determining liability followed by a judge-alone phase addressing the limitation issue and related evidence.

In a motor vehicle personal injury action, the defendants brought a motion requiring the plaintiff to attend a further independent medical examination by a psychiatrist after several prior defence examinations had already been conducted.

The defence argued the examination was necessary following a neuropsychologist’s suggestion that the plaintiff’s symptoms might reflect a conversion disorder.

The court held that the defendants already possessed extensive medical evidence from numerous specialists and that the proposed examination appeared aimed at developing a new diagnostic theory rather than responding to an issue requiring further investigation.

The evidentiary basis for the additional psychiatric examination was insufficient, and the request risked becoming a fishing expedition.

Given the number of prior examinations and the intrusive nature of another assessment, the motion was dismissed.