Kate M. MacLeod

The appellant, Patricia Ann Smith, appealed the dismissal of her medical malpractice action against Dr. Brenda Kane.

The trial judge found no breach of the standard of care by Dr. Kane in her treatment of the appellant's foot complaints.

The appeal raised three main issues: misapprehension of expert evidence, failure to apply the "ordinary knowledge and common sense" exception to expert evidence, and error in failing to find a breach of the duty to diagnose.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of expert evidence, rejecting the application of the "common sense" exception as it was not raised at trial and the issues were complex, and clarifying that there was no freestanding duty to diagnose in this context given the specific concessions and causation findings.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

Following a successful motion by the plaintiff, the parties submitted written arguments regarding costs.

The defendant insurer sought costs against the plaintiff's counsel personally for allegedly unnecessary court appearances.

The court declined to award costs against counsel personally but significantly reduced the plaintiff's costs award to $1,750 due to the plaintiff's responsibility for delay and unnecessary expense.

This appeal concerns priority for statutory accident benefits under Ontario's no-fault automobile insurance regime after a claimant declined optional rental-counter coverage and was injured in a single-vehicle accident.

The core issue was whether the insurer had a sufficient nexus to the claimant to qualify as an insurer obliged to respond under s. 268 of the Insurance Act and the inter-insurer priority framework.

The Court accepted the appellate reasons below that the arbitrator erred in excluding the insurer from the statutory scheme.

The appeal was allowed and costs were awarded to the appellant.