Junior Sirivar

The plaintiff, a diabetic patient, brought a medical malpractice action against her family physician after requiring a below-knee amputation due to an undiagnosed neuropathic fracture (Charcot foot).

The plaintiff alleged the physician breached the standard of care by failing to order timely imaging or refer her to an orthopedic specialist.

The court found that the physician's treatment did not fall below the standard of care, noting that the condition was rare and not detected by other specialists who examined the plaintiff during the same period.

Although the court concluded that timely imaging would likely have saved the leg, the action was dismissed because the standard of care was not breached.

Bell Canada brought an application seeking declarations, an injunction, and a mandatory order against Cloudwifi Inc. and Gary Kenning for allegedly wrongful access and use of Bell's telecommunications equipment and breach of a prior settlement agreement.

Cloudwifi responded with a motion to dismiss or stay Bell's application, asserting the CRTC's exclusive jurisdiction, and a cross-application seeking declarations and damages against Bell.

The court dismissed Cloudwifi's motion to stay as moot due to a prior CRTC decision.

It found that the CRTC had exclusive jurisdiction over the regulatory aspects of equipment access, but the court retained exclusive jurisdiction over the alleged breach of the settlement agreement.

Ultimately, the court dismissed Bell's application, finding no breach of the settlement agreement and declining to issue declarations on regulatory matters.

Cloudwifi's cross-application was also dismissed, as it was conditional on the motion's outcome and involved claims better suited for an action.

The defendant brought a motion for an order requiring the plaintiff, a corporation, to post security for costs pursuant to Rule 56.01(1)(d) of the Rules of Civil Procedure, alleging insufficient assets in Ontario to cover potential costs.

The court reviewed the two-part test for security for costs, which places the initial onus on the defendant to demonstrate a good reason to believe the plaintiff has insufficient assets.

The court found that the defendant failed to meet this initial onus, as their evidence was based on speculation rather than concrete indicia of financial difficulty.

The plaintiff, an operating business with ongoing investments and a subordinated major liability, provided sufficient evidence of its financial stability and ability to meet a costs order.

The motion was dismissed.

In a medical malpractice action, the plaintiffs challenged the admissibility of evidence from a defendant cardiologist, Dr. Wong, concerning average wait times for stress tests.

Dr. Wong's testimony was based on patient records and a summary chart prepared by his office staff.

The plaintiffs argued this constituted inadmissible hearsay, as Dr. Wong did not personally verify all the underlying data.

The court ruled that Dr. Wong's evidence was admissible in its entirety.

It found that the patient records contained Dr. Wong's first-hand knowledge and served to refresh his memory, and the chart was a summary of this information.

Any weaknesses or limitations in the process of compiling the data were deemed to affect the weight of the evidence, not its admissibility.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

The plaintiffs brought a medical malpractice action against a urologist, alleging negligent performance of a trans-urethral resection of the prostate (TURP) that resulted in total and continuous urinary incontinence.

The court dismissed the action, finding that the plaintiffs failed to establish, on a balance of probabilities, that the urologist breached the standard of care or that the alleged breach caused the incontinence.

The court concluded that the incontinence was a known complication, likely attributable to pre-existing conditions of an overactive bladder and a weakened external sphincter, rather than surgical negligence.

VMedia sought a declaration that its new internet retransmitting service, which simultaneously retransmits over-the-air television signals, does not infringe Bell's copyrights in CTV programming.

VMedia argued it was entitled to a compulsory license under section 31 of the Copyright Act because it operated under its Broadcast Distribution Undertaking licenses rather than the CRTC's New Media Exemption Order.

The court found that VMedia's service is delivered and accessed over the internet, meaning it operates under the Exemption Order and is statutorily excluded from the compulsory licensing regime.

VMedia's application was dismissed, and Bell's counter-application for a declaration of copyright infringement and a permanent injunction was granted.

Following a successful summary judgment motion dismissing the plaintiff's action, the Eckhaus Defendants sought substantial indemnity costs.

The plaintiff had made serious, unfounded allegations of breach of fiduciary duty and sexual harassment against Dr. Eckhaus.

The court found these allegations to be outrageous and reckless, justifying an award of substantial indemnity costs.

After reviewing the parties' bills of costs and considering proportionality, complexity, and importance, the court fixed the costs payable by the plaintiff to the Eckhaus Defendants at $45,645.60, inclusive of HST and disbursements.

The plaintiff, N.M. Davis Corporation Limited, moved for a further and better affidavit of documents from the defendant, Marshall Stuart Ross, specifically seeking a detailed Schedule B regarding the Crown disclosure brief from a related criminal matter.

The plaintiff sought this information to determine when the co-defendant, Eva Jacqueline Wower, might have anticipated Ross's conviction for murder, which is relevant to the plaintiff's claim that Ross fraudulently conveyed properties to Wower under the guise of a divorce to defeat a judgment.

The defendant Ross resisted, arguing irrelevance and disproportionality given the 13 boxes of documents.

The court, applying principles from D.P. v. Wagg and Rule 29.2, found that while the timing of disclosure was relevant, requiring a full cataloguing of the entire Crown brief was disproportionate.

The court ordered Ross to amend his affidavit to identify transmission documents (e.g., covering letters) indicating when portions of the Crown brief were received by his counsel, without requiring a full Wagg screening process for these transmission documents.

Costs were awarded in the cause.

The plaintiff, a registered nurse who underwent massive weight loss, sued her plastic surgeon, his professional corporation, a hospital, and a nurse after the nurse asked an allegedly inappropriate question during surgery while the plaintiff was awake.

The surgeon and his corporation moved for summary judgment to dismiss the action against them.

The court applied the Hryniak test and reviewed the plaintiff's own expert report, which established that the surgeon met the standard of care for preoperative, technical, and postoperative care.

The court found that the surgeon also met the subjective standard of care for intraoperative management and patient advocacy, as he did not perceive the question as derogatory or know the plaintiff felt insulted at the time.

Finding no genuine issue requiring a trial, the court granted the motion and dismissed the action against the surgeon and his corporation.

Following dismissal of the defendant bank’s summary judgment motion asserting a limitations defence, the plaintiffs sought partial indemnity costs of $635,000.

The action arises from a massive Ponzi scheme involving certificates of deposit issued by an offshore bank, with the plaintiffs acting as joint liquidators pursuing damages of USD $5.5 billion against the defendant bank as correspondent banker.

The court held that although the plaintiffs were successful in resisting the motion, their claimed costs were excessive and far outside the reasonable expectations of the unsuccessful party for a two‑day summary judgment motion.

Considering the factors under Rule 57.01(1), the court fixed a fair and reasonable costs award of $120,000 all‑inclusive on a partial indemnity basis.

The award was made without prejudice to the plaintiffs’ ability to seek additional costs related to the motion at trial where the limitations issue remains live.

The defendant bank brought a summary judgment motion seeking dismissal of a $5.5 billion negligence and knowing assistance claim arising from an international Ponzi scheme, arguing the action was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim was brought by joint liquidators of an offshore bank alleging the defendant bank failed to exercise appropriate due diligence and facilitated the scheme by continuing correspondent banking services.

The court held that the discoverability of the claim before the critical limitation date involved complex factual inquiries regarding what the liquidators’ predecessors knew or ought to have known about the bank’s role in the fraud.

Given the extensive evidence, overlapping merits issues, and disputed factual questions about knowledge and investigation during the liquidation process, the court found a genuine issue requiring a trial.

Summary judgment was therefore inappropriate.

The plaintiff vendor commenced an action after the defendant purchaser failed to complete a commercial real estate transaction governed by an amended agreement of purchase and sale.

The purchaser argued that the contract was void due to an unmet third‑party condition and alleged failure to produce a long‑form lease.

The court found the amended agreement was a firm contract without conditions precedent and that the purchaser breached it by failing to pay the additional deposit and refusing to close in an attempt to renegotiate price.

Specific performance was denied because damages were an adequate remedy in the context of a commercial property transaction.

The court assessed damages at $300,000 based on the difference between the agreed purchase price and the market evidence available, and ordered release of the deposit to the vendor.

The respondents brought a motion to quash the appellant bank's appeal from an order granting leave to amend a statement of claim.

The respondents argued the order was interlocutory, meaning the appeal should lie to the Divisional Court.

The Court of Appeal agreed, finding that the order permitting the amendment did not deprive the appellant of a substantive defence but simply allowed the matter to proceed to trial.

The appeal was quashed.

Investors who lost $17 million in a fraudulent certificate of deposit scheme brought a motion for leave to amend their statement of claim against a bank that had acted as a correspondent bank for the fraudster.

Earlier pleadings alleging a general duty on banks to monitor customers for fraud had been struck for failing to disclose a reasonable cause of action.

The proposed amendments added detailed allegations based on documents obtained by liquidators showing internal concerns within the bank about suspicious activities and regulatory issues surrounding the customer.

The court held that the amended pleading alleged a more specific duty arising from particular knowledge and circumstances rather than a broad duty to investigate customers generally.

Because the new allegations relied on information not reasonably available earlier and could potentially support a tenable claim, leave to amend was granted.

Following the dismissal of an application for leave to appeal an order staying third party claims in a class action until completion of the common issues trial, the court addressed the issue of costs between the plaintiff and the defendant applicants.

The plaintiff sought partial indemnity costs exceeding $34,000 plus disbursements, while the defendants argued for a significantly reduced amount.

The court rejected the defendants’ criticism of the plaintiff’s preparation time and counsel allocation, emphasizing the importance of the application to the plaintiff and the plaintiff’s leadership role in responding.

Considering the relevant factors, the court fixed costs at a reduced but substantial amount within the defendants’ reasonable expectations.

In a certified class proceeding, the defendants sought leave to appeal a case management order that refined the common issues and stayed their third party claims against numerous distributors pending the common issues trial.

The defendants argued the stay conflicted with principles governing third party claims and with provisions of the Rules of Civil Procedure, the Courts of Justice Act, and the Class Proceedings Act.

The court held that the broad discretionary powers under ss. 12 and 13 of the Class Proceedings Act permitted such case management orders to ensure the fair and expeditious determination of class proceedings.

The court found no reason to doubt the correctness of the stay order and rejected arguments that it conflicted with other statutory provisions or prior case law.

Leave to appeal was denied.

Costs decision following the abandonment of a Rule 45 motion in a class proceeding seeking an order requiring the defendant to pay an alleged fund into court.

The court considered the presumptive rule under Rule 37.09(3) of the Rules of Civil Procedure that a responding party is entitled to costs when a motion is abandoned.

While the plaintiff had a reasonable basis initially to believe the defendant possessed the alleged fund, the court found the motion would have failed because the existence of a fund could not be proven.

The court declined to award substantial indemnity costs due to the absence of reprehensible conduct but granted partial indemnity costs.

The defendant was awarded $30,000 for the abandoned Rule 45 motion and $8,750 for a related refusals motion.

In a certified class proceeding concerning an alleged defective charitable gift program, the plaintiff moved to amend the certified common issues and to stay the defendants’ third‑party claims against distributors until after the common issues trial.

Competing drafts of revised common issues and orders were submitted by the plaintiff, defendants, and another defendant concerned about exposure to an unpleaded claim.

The court preferred the plaintiff’s proposed revisions and order because they more directly preserved the objective of a focused common issues trial that would not bind or involve the distributors.

However, the proposed amendments required clarification to address concerns that they might create liability for negligent implementation of an otherwise valid program, which had not been pleaded or certified.

The court directed that the revisions be modified to limit the issues or, alternatively, that the plaintiff bring a motion to amend the statement of claim and certify the additional common issue.

Following dismissal of a motion to amend the statement of claim, the court determined costs.

The successful party sought partial indemnity costs totalling $14,420.17 for preparation, cross‑examination attendance, and the motion hearing.

The opposing party argued the amount was excessive given the simplicity of the motion and the use of two counsel.

Applying s. 131(1) of the Courts of Justice Act and the factors under Rule 57.01(1), the court held that the requested amount was fair and reasonable given the complexity arising from the long history of the 22‑year litigation and the volume of material involved.

Costs of $14,420.17 were awarded with 120 days permitted for payment.