Josh Nisker

In a common issues trial arising from a certified class proceeding, the court held that a cosmetic surgery clinic and its physician-owner were negligent, breached fiduciary duties, and committed intrusion upon seclusion by operating surveillance cameras in consultation rooms, treatment rooms, pre- and post-operative areas, and the operating room without patient knowledge or consent.

The court rejected the submission that the cameras were justified as security measures, finding instead that they served the defendants’ self-protective interests and recorded highly private medical interactions for no medical purpose.

The court held that no trust relationship over the footage was established, but found vicarious liability and concluded that the intrusion upon seclusion claim could be determined on a class-wide basis using an objective standard.

Aggregate damages of $21,500,000 were awarded for intrusion upon seclusion, together with $1,000,000 in punitive damages, while negligence and breach of fiduciary duty claims requiring proof of individual harm were left for further process.

The plaintiffs sought court approval for the settlement of claims on behalf of two minor plaintiffs arising from a fatal motorcoach bus collision.

The court approved the settlement amounts, the proposed solicitor-client account based on quantum meruit, and the payment of the net settlement funds to the minor plaintiffs' father, who resides in China, rather than the Accountant of the Superior Court of Justice.

The main action and all crossclaims were dismissed without costs.

This motion arose from one of six related actions following a fatal motorcoach bus collision on Highway 401 in June 2018, in which the deceased was a passenger.

The plaintiffs sought: an order to continue the action on behalf of a plaintiff who died after the action was commenced; approval of the settlement of the claims of a minor plaintiff (the deceased's granddaughter); approval of the minor plaintiff's contribution toward the solicitor-client account; and approval of the management of the net settlement funds payable to the minor plaintiff by her father, who resides in China, rather than through the Accountant for the Superior Court of Justice.

The court granted all relief requested, finding that the settlement was reasonable and in the minor's best interests, that payment to the father was proportionate and practical given the parties' residence in China, and that counsel's dual role as affiant and lawyer of record was appropriate in the circumstances.

The main action and all crossclaims were dismissed without costs.

The court dispensed with the requirement for litigation guardians residing in China to file affidavits in support of court approval motions for settlements involving parties under disability, due to legal and logistical barriers under Chinese law.

The decision reviews the collaborative resolution of liability and settlement issues following a major motor coach accident, the apportionment of limited insurance funds, and the purpose of the court approval process under Ontario law.

The court found that requiring affidavits would be disproportionate and unnecessary, and that the interests of justice are served by waiving the requirement.

The defendants sought a reconsideration of a costs decision following a class action certification motion, arguing for no costs due to divided success because only one of the plaintiffs' two distinct cases was certified.

The court rejected this argument, finding that the joinder of claims was proper under the Rules of Civil Procedure and consistent with the principle of avoiding a multiplicity of proceedings.

The original costs award of $150,000 to the plaintiffs was confirmed.

Following the successful certification of a class proceeding, the plaintiffs sought costs.

The parties agreed that $150,000, all inclusive, was a fair and reasonable amount for the certification motion, which included $5,000 for a motion to strike an affidavit.

The defendants did not deliver any costs submissions opposing the request.

The court found the agreed amount to be fair and reasonable and awarded the plaintiffs $150,000 in costs.

The plaintiffs brought a motion to certify a class action against a plastic surgeon and his clinic for breach of privacy.

The claims involved two main grievances: the surreptitious video surveillance of patients in the clinic (the Surveillance Complaint) and the posting of patient images on social media without valid consent (the Social Media Complaint).

The court certified the Surveillance Complaint, finding it met all criteria under s. 5 of the Class Proceedings Act, 1992.

However, the court declined to certify the Social Media Complaint, concluding that the issue of valid consent was highly idiosyncratic and required individual inquiries, meaning it failed the common issues and preferable procedure criteria.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike portions of affidavits filed by the plaintiffs in support of certification.

The court granted the motion, striking evidence that was irrelevant, prejudicial, or detailed a College of Physicians and Surgeons investigation contrary to section 36 of the Regulated Health Professions Act.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike the expert report of Dr. Mary Anne Franks, proffered by the plaintiffs for the certification motion.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images online without consent.

The court granted the motion to strike, finding that Dr. Franks' evidence regarding the social and cultural context of non-consensual image distribution and American law was not relevant or helpful to determining the common issues for certification.

In a proposed class action against a plastic surgeon for breach of privacy involving surreptitious video recording and unauthorized social media postings, the plaintiffs brought a preliminary motion for leave to deliver a supplementary affidavit regarding class size after cross-examinations had concluded.

The court dismissed the motion, finding that the defendants had provided their best information based on the plaintiffs' class definition, the supplementary evidence did not respond to matters raised on cross-examination, and allowing the affidavit would amount to prejudicial case-splitting.

The plaintiffs in a proposed privacy class action brought a preliminary motion to strike the complete clinical medical charts and medical records of the plaintiffs and two deponents, which were included in the responding affidavits of the defendant doctor.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images on social media without consent.

The court granted the motion, finding that the detailed medical records were irrelevant and inadmissible for the purposes of the certification motion, as the action concerned privacy breaches rather than medical malpractice.

The applicant and respondent both requested a reconsideration of a previous Licence Appeal Tribunal decision that awarded the applicant a special award of $550.00 related to a denied physiatry assessment.

The respondent argued the adjudicator erred in law by considering extraneous factors and incorrectly quantifying the award.

The applicant argued the adjudicator erred in calculating the award amount by not including other denied treatment plans.

The adjudicator dismissed both requests, finding that the respondent failed to establish any error of law regarding the special award, and that the applicant's request involved issues not properly raised at the original hearing.

Both the applicant and the respondent requested a reconsideration of a previous Tribunal decision that awarded the applicant a special award of $550.00 related to a denied physiatry examination.

The respondent argued the adjudicator erred in law by considering extraneous factors and concluding a general practitioner was unqualified to assess the need for a physiatry assessment.

The applicant argued the adjudicator erred in calculating the special award amount.

The Tribunal dismissed both requests, finding no error of law or fact, as the respondent failed to explain its decision-making process and the applicant raised issues not properly before the Tribunal at the original hearing.

The applicant sought payment for a physiatry assessment following a motor vehicle accident that resulted in a traumatic brain injury.

The respondent insurer denied the cost, relying on an assessment by a general practitioner.

The Licence Appeal Tribunal found the physiatry assessment was reasonable and necessary, preferring the evidence of the applicant and her treating professionals.

The Tribunal also found the insurer unreasonably withheld benefits due to multiple errors in handling the file, and ordered a 25% special award under Regulation 664, along with interest on the overdue payment.

The applicant was injured in a motorcycle accident and applied for catastrophic impairment benefits, which the insurer denied.

The central issue was whether the applicant's impairments met the 55% Whole Person Impairment (WPI) threshold, with the insurer arguing that a pre-existing back condition accounted for a significant portion of his current disability.

The arbitrator rejected the insurer's expert evidence regarding the pre-existing condition and symptom magnification, finding the applicant's experts more reliable.

The arbitrator concluded that the applicant sustained a catastrophic impairment as a direct result of the accident and awarded him his full arbitration expenses.

The plaintiff was injured in a multi-car collision.

The defendants admitted liability, and the case proceeded to a jury for damages.

This ruling addresses a threshold motion brought by the plaintiff to determine if her claim for general damages is barred by s. 267.5(5) of the Insurance Act, which requires a "permanent serious impairment of an important physical, mental or psychological function." The court applied the three-part test from Meyer v. Bright and found that the plaintiff's impairments to her ability to work and attend school were permanent, important, and serious, thus meeting the statutory threshold.

The defendants moved for summary judgment, arguing the plaintiff's personal injury claim was statute-barred due to the two-year limitation period.

The core issue was discoverability, specifically whether the plaintiff exercised reasonable diligence in discovering the permanent and serious nature of her injuries, particularly regarding an MRI report.

The court found it reasonable for the plaintiff to defer to her doctors regarding MRI results and that her claim was not statute-barred, dismissing the motion.

The defendant Ministry moved to strike a negligence claim arising from the death of a child at an unlicensed private-home daycare after the Ministry had received multiple complaints about excessive numbers of children and had sent a warning letter but allegedly failed to follow up.

The court held that on a motion to strike it was required to accept the pleaded facts as true and determine only whether it was plain and obvious the claim could not succeed.

Applying the duty of care framework and authorities on proximity in claims against public actors, the court found it was arguable that the pleaded facts could establish proximity and foreseeability sufficient to support a private law duty of care.

The claim was novel, but the uncertainties could not be resolved at the pleadings stage and required a full record at trial.

The appellant insurer appealed an arbitrator's preliminary decision regarding the quantum of attendant care benefits payable to the respondent insured.

The insurer argued that the quantum should be limited to the amount actually paid to the professional care provider, rather than the higher amount assessed in the Form 1.

The Director's Delegate dismissed the appeal, confirming that under the 2010 Statutory Accident Benefits Schedule, once the entitlement threshold of an 'incurred' expense is met, the quantum of the benefit is determined in accordance with the Form 1, subject to statutory maximums, and is not strictly limited to the actual economic loss or amount paid to the provider.