Joy Stothers

The appellant doctor appealed a trial judgment finding him liable for the respondent's psychiatric injury, which developed after the doctor failed to promptly disclose a talar fracture in the respondent's ankle.

The Court of Appeal upheld the trial judge's finding that factual causation was established on the 'but for' test, as the respondent would not have suffered the psychiatric harm had the doctor disclosed the fracture.

The Court also found that legal causation was established, as it was reasonably foreseeable that a breach of the doctor-patient trust could cause a recognized psychiatric illness in a person of ordinary fortitude.

The appeal was dismissed, and the damages and costs awards were upheld.

The plaintiffs sued the Toronto and Region Conservation Authority (TRCA) and others following the drowning death of a 7-year-old child who allegedly slipped down the concrete banks of Mimico Creek.

The TRCA moved for summary judgment, arguing it had no involvement with the adjacent apartment properties.

The motions judge dismissed the motion, and the TRCA appealed.

The Divisional Court dismissed the appeal, finding that the TRCA's affidavit evidence only addressed the adjacent properties and failed to address the plaintiffs' allegations regarding the design, maintenance, and attractive nuisance of the creek itself.

Because the TRCA did not meet its initial evidentiary burden to show there was no genuine issue for trial, the burden did not shift to the plaintiffs.