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.

Following the dismissal of the plaintiffs' medical malpractice action on a summary judgment motion due to the expiry of the limitation period, the successful defendant sought costs of $117,413.06.

The plaintiffs did not dispute the presumptive entitlement to costs but argued for a reduction.

The court found the claimed 388 hours of lawyer time excessive, noting the action did not advance to trial preparation and the limitation issue was not novel.

Exercising its discretion under section 131 of the Courts of Justice Act, the court reduced the fees to ensure proportionality, fixing the total costs payable by the plaintiffs at $72,375.25 inclusive of disbursements and HST.

The defendant doctor brought a motion for summary judgment to dismiss the plaintiffs' delayed diagnosis medical malpractice claim on the basis that it was statute-barred.

The deceased was diagnosed with lung cancer in May 2013 after the defendant ordered a chest x-ray, and the family immediately expressed concern that an x-ray had not been ordered earlier despite her symptoms.

The family obtained the medical chart and consulted a medical malpractice lawyer by early 2014, but the statement of claim was not issued until April 2016.

The court found that the plaintiffs had actual knowledge of the material facts upon which to base an allegation of negligence by no later than February 2014, meaning the two-year limitation period had expired before the claim was issued.

The motion for summary judgment was granted and the action was dismissed.

The plaintiffs brought a medical malpractice action against the defendant obstetrician, alleging that he negligently caused a permanent brachial plexus injury to the infant plaintiff during delivery.

The plaintiffs argued that the defendant applied excessive downward lateral traction and improperly directed supra-pubic pressure after encountering shoulder dystocia.

The court found that the defendant met the standard of care expected of an obstetrician in 2004, properly executing the required maneuvers to resolve the obstetrical emergency.

The court rejected the plaintiffs' argument that the mere presence of the injury inferred excessive traction, noting that medical literature and expert evidence established that such injuries can occur from endogenous forces or gentle traction.

The action was dismissed.

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.

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.

The defendant dentist brought a motion for partial summary judgment in a dental malpractice action, arguing that claims relating to treatment before a specified date were statute‑barred under the Limitations Act, 2002.

The plaintiffs had originally commenced an action concerning later dental treatment but later amended the pleading to include earlier procedures and alleged failures to treat additional teeth.

The court held that the amendments asserted new causes of action rather than merely providing further particulars of the original claim.

Applying the discoverability principles under ss. 4 and 5 of the Limitations Act, the court found the plaintiffs knew or ought to have known of the potential negligence years earlier based on communications with subsequent dental specialists.

The claims relating to treatment before the specified date were therefore outside the limitation period.

The defendants appealed an interlocutory order denying the production of certain medical records.

The motion judge had refused production based on the assumption that the individual whose records were sought had cerebral palsy and could not serve as a proper comparator.

On appeal, counsel clarified that there was no conclusive diagnosis of cerebral palsy.

The Divisional Court allowed the appeal and ordered production, noting that the trial judge retains the discretion to exclude evidence if its prejudicial effect outweighs its probative value.

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.

The infant plaintiff suffered hypoxic-ischemic encephalopathy during childbirth, resulting in cerebral palsy.

The plaintiffs sued the hospital, physicians, and nurses for negligence during delivery.

The defendants refused to admit they owed a duty of care to the infant plaintiff, arguing that recent case law precluded such a duty.

The motion judge granted a declaration that a duty of care was owed.

The Court of Appeal dismissed the defendants' appeal, affirming the well-established principle that an infant, once born alive, may sue for damages sustained as a result of negligence during labour and delivery.

The appellant surgeon appealed a trial judgment finding him negligent in the performance of a mediastinoscopy, during which he unintentionally biopsied the respondent's oesophagus.

The trial judge had rejected the negligence theories advanced by the respondent's expert but found negligence on two unpleaded grounds: failure to take a smaller biopsy and failure to differentiate the oesophagus from the lymph node.

The Court of Appeal allowed the appeal, finding that the trial judge's conclusions were based on a manifestly incorrect finding of fact regarding biopsy size and inferences unsupported by the expert evidence.

The action was dismissed.

The appellant, acting as receiver and manager for a general partner, appealed a judgment determining that the assets of a dissolved limited partnership must be distributed according to the priority scheme in s. 24 of the Limited Partnerships Act.

The appellant argued that the partnership agreement ousted the statutory priority and that assets should be distributed based on percentage interests.

The Court of Appeal dismissed the appeal, holding that unequivocal language is required to oust the legislative priority provisions.

Because the partnership agreement did not explicitly address priority, the statutory scheme applied.