J. Thomas Curry

The appellant physician in a medical malpractice action appealed a motion judge's decision denying leave to file late-served causation and damages expert reports under Rule 53.08.

The motion judge had applied a strict conjunctive test, finding no reasonable explanation for the delay despite acknowledging a lack of prejudice.

The Divisional Court allowed the appeal, holding that the motion judge erred by failing to apply a balanced approach that considers the overall interests of justice, as established in recent jurisprudence.

The Court found that the delay was not tactical, did not prejudice the respondents or delay the trial, and that denying leave would disproportionately prejudice the appellant's ability to defend the action on its merits.

The parties separated after a 32-year marriage.

Before the marriage, the respondent wife received shares in her father's business.

During the marriage, an estate freeze was executed, transferring the growth value of the shares to a new family trust settled by her father for $100.

The trial judge, feeling bound by prior appellate jurisprudence, excluded the wife's interest in the trust from her net family property as a gift after marriage.

The Court of Appeal allowed the appeal in part, distinguishing the prior case and holding that the trust interest was traceable to the pre-marital gift.

The trust interest was included in net family property, but the equalization payment was reduced to $18 million under s. 5(6) of the Family Law Act due to unconscionability.

Retroactive spousal support was ordered, but prospective support was denied.

The trial costs award against the appellant husband was upheld.

The defendants appealed a decision regarding the delivery of expert reports.

The Divisional Court allowed the appeal and granted the defendant leave to deliver the expert reports of Dr. Turcotte on causation and Professor Hyatt on damages.

Reasons for the decision were to follow.

As agreed by the parties, no costs were ordered.

The moving parties brought a motion for leave to appeal a January 30, 2026 decision.

The Divisional Court granted the motion for leave to appeal without costs and ordered that the appeal be expedited, directing the parties to attend a case management teleconference to set a schedule.

The Attorney General of Ontario sought an urgent anticipatory injunction to ban an Al Quds Day protest rally in Toronto, or alternatively, an order enjoining participants from violating the Criminal Code and committing torts.

The court dismissed the application, finding that the Attorney General failed to establish a strong prima facie case that the rally would result in criminality or a public nuisance.

The court held that a blanket ban on the assembly would be a disproportionate infringement of the participants' freedom of peaceful assembly under s. 2(c) of the Charter.

The court also declined to grant the alternative relief, noting that police do not require a court order to enforce the criminal law.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The representative plaintiffs in a class action alleging a price-fixing conspiracy for packaged bread sought to amend their pleadings and the Certification Order to add Maple Leaf Foods Inc. as a certified defendant.

The original Certification Order had refused certification against Maple Leaf on the basis that the pleadings disclosed no cause of action against it, and this decision was not appealed.

The Court of Appeal upheld the motion judge's dismissal of the motion, finding that the original refusal to certify was a final order that gave rise to res judicata.

The court held that the Class Proceedings Act does not permit relitigation of matters finally decided, and the motion judge did not err in refusing to exercise his limited discretion to bypass res judicata.

The appellant appealed a judgment awarding over one million dollars in damages to the respondents for personal injuries sustained in a motor vehicle accident.

The trial judge discharged the jury after finding that defence counsel breached the rule in Browne v. Dunn by failing to cross-examine the plaintiff on a significant piece of evidence regarding fluid leaking from his ear, which was later introduced through expert witnesses.

The trial judge found the breach irreparably tainted the jury and proceeded with a bench trial, ultimately accepting the plaintiff's evidence and rejecting the defendant's malingering theory.

The Court of Appeal upheld all aspects of the trial judge's decision, including the finding of a Browne v. Dunn breach, the discharge of the jury, the qualification of a treating physician as an expert witness, and the damages award.

The Court of Appeal for Ontario considered a motion by Barbara Lang-Newlands regarding the operation of the automatic stay under rule 63.01 of the Rules of Civil Procedure following a family law trial judgment.

The court addressed whether certain monetary awards (post-separation adjustments) should be characterized as support and thus exempt from the stay, and whether the stay should be lifted or maintained on various payments pending appeal.

The court declined to recharacterize the payments as support, but exercised its discretion to lift the stay on Ian Newlands' obligation to pay post-separation adjustments, given the risk that Barb would not recover the funds if the stay remained.

The court ordered Barb to pay Ian the net difference and expedited the appeal.

The appellants, owners of a dental clinic, appealed the dismissal of their action against a former independent contractor dentist who left to start his own practice.

The appellants alleged conversion, improper solicitation of patients and employees, appropriation of confidential information, and breach of fiduciary duty.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the dentists carried on independent practices, the departing dentist only contacted his own patients to fulfill professional obligations, and the patient information accessed was not confidential.

The court also rejected claims regarding breach of fiduciary duty and the contractual duty of good faith.

The plaintiff, Jean-Marie Dixon, moved to strike three affidavits sworn by a representative of the defendant, His Majesty the King in Right of Ontario, which were filed in support of a motion to dismiss the action for lack of jurisdiction.

The plaintiff argued that the affidavits contained irrelevant information, hearsay, improper legal arguments, and unqualified expert opinions.

The court rejected most of the plaintiff's objections, finding that the assertions were proper factual context or matters for cross-examination.

However, the court struck one overly broad sentence regarding the Crown's treatment of bargaining agents with leave to amend, and otherwise dismissed the motion.

This costs endorsement followed a decision on an appeal and cross-appeal.

Given the divided success of the parties on both the appeal and cross-appeal, the Court of Appeal ordered that each party bear its own costs.

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

This appeal concerned a dispute over the purchase and sale of a luxury home, where the purchaser sought rescission of the Agreement of Purchase and Sale due to fraudulent misrepresentation and latent defect.

The motion judge granted partial summary judgment for rescission and equitable damages against the seller.

The appellants (seller and co-defendants) argued errors in the finding of fraudulent misrepresentation, latent defect, and the appropriateness of partial summary judgment given a pending conspiracy claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding of fraudulent misrepresentation based on the seller's failure to disclose safety risks and false representations, and upheld the partial summary judgment, finding no risk of inconsistent findings between corporate and personal liability for fraud.

The appellants (defendant doctors) appealed a trial judgment finding them liable for failing to obtain informed consent for a multi-step medical treatment plan that resulted in catastrophic brain injury to the plaintiff.

The appeal addressed the nature and extent of a physician's duty to obtain informed consent, on which physicians this duty rests, sufficiency of reasons, evidentiary issues (including expert witness exclusion), and costs.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that all three appellant doctors failed to provide adequate disclosure regarding the cumulative risks of the treatment plan, and that the plaintiff would not have proceeded had he been properly informed.

Leave to appeal costs was refused.

The Court of Appeal for Ontario issued a costs endorsement following an appeal where the trial judge's liability finding was upheld, but the damages award was set aside for a new hearing.

Due to divided success on appeal, the parties agreed to bear their own appeal costs.

The court varied the trial judge's costs order, reducing the amount payable by the appellant to the respondent by one-third (from $251,706.10 to $167,804.07), reflecting the partial success on appeal and the uncertainty regarding the original offer to settle.

The costs of the new damages hearing were left to the discretion of the presiding judge.

The appellant (vendor) appealed a trial judgment finding it breached an Agreement of Purchase and Sale (APS) for development lands and awarding the respondent (purchaser) over $11 million in lost expected profits.

The Court of Appeal upheld the trial judge's finding of liability, confirming the vendor's breach for wrongly asserting the purchaser failed to pay a further deposit and that the purchaser was ready, willing, and able to close without tendering.

However, the Court allowed the appeal on damages, ruling that the trial judge erred by departing from the normal measure of damages for real estate breaches (difference between contract price and market value on closing date).

The Court clarified that the remoteness test determines the *type* of loss, not the *measure*, and that market value inherently accounts for development potential.

A new hearing was ordered to assess damages using the normal measure.

The County of Simcoe appealed a trial judgment finding it 100% liable for catastrophic injuries sustained by Melinda Wasylyk in a motor vehicle accident caused by hazardous road conditions.

The County argued the trial judge erred in finding the road in disrepair, in her causation analysis, and in finding no contributory negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the road was in disrepair due to ice and snow, that these conditions caused the accident, and that the plaintiff was not contributorily negligent, deferring to the trial judge's factual assessments.

The plaintiff moved to disqualify Norton Rose Fulbright LLP (NRF) from acting as lawyers of record for the K2 defendants.

The plaintiff argued that it was a current client of NRF for patent applications, and that NRF's representation of the K2 defendants in this litigation, which involved allegations that the plaintiff's core technology did not exist, created a disqualifying conflict of interest.

The court found that the two mandates were substantially related and that the bright line rule applied, rendering the advance waiver in NRF's engagement letter ineffective.

The motion to disqualify NRF was granted.

The moving parties sought to strike two expert reports and their references from the appeal book and compendium (ABCO) and the responding party's factum, arguing they were not evidence at trial.

The court, citing precedent, found that while the reports were not formally entered as exhibits, they were provided to the trial judge as aides memoire and should have been marked as lettered exhibits, thus forming part of the appeal record.

The motion was allowed in part, directing the responding party to amend the descriptions of the reports in the ABCO and factum to clearly state their non-evidentiary status.