Keegan Boyd

The plaintiffs in two medical negligence actions appealed a decision dismissing their motions to compel production of documents and answers to discovery questions related to hospital quality of care reviews.

The Associate Justice had found the information irrelevant and protected by common law quality assurance privilege.

On appeal, the court found the documents and questions to be relevant but upheld the Associate Justice's conclusion that a common law evidentiary privilege (Wigmore test) applied to the quality assurance communications, and that the Quality of Care Information Protection Act, 2016 (QCIPA) did not abrogate this common law privilege.

The appeals were dismissed.

The plaintiffs in two medical negligence actions brought refusals motions seeking production of information and documents from hospital case reviews and morbidity and mortality rounds.

The defendants argued the information was irrelevant and protected by common law quality assurance privilege.

The court dismissed the motions, finding the information irrelevant as it involved hindsight and potential remedial measures.

Furthermore, the court held that the Quality of Care Information Protection Act, 2004 did not abrogate common law privilege, and the communications satisfied the Wigmore criteria for protection.

The court determined costs for contempt proceedings initiated by Atif Kamran against Dan Andersson and LEO Canada Inc. While Kamran succeeded in having Andersson found in contempt for some breaches, Andersson successfully purged his contempt and resisted many of Kamran's requested penalties.

The court found success was divided, and Kamran's approach to the penalty phase was overly aggressive.

No costs were awarded to LEO Canada Inc. or Geraldine Aquino.

The court awarded Atif Kamran $40,000 in all-inclusive costs from Dan Andersson, on a partial indemnity basis, and dismissed Andersson's cross-motion for costs.

The defendant brought a motion to impose penalties on the plaintiff for civil contempt regarding a failure to provide access to corporate records.

The plaintiff brought a cross-motion for a declaration that he had purged his contempt.

The court found that the plaintiff had made good faith efforts to comply with the order and had purged his contempt.

The court imposed a fine of $5,000 for the initial contempt and ordered that the previous contempt order be set aside upon payment of the fine.

The defendant Atif Kamran brought a motion for security for costs against the plaintiff Dan Andersson, seeking $150,000.00 under Rule 56.01 of the Rules of Civil Procedure.

Kamran argued Andersson was ordinarily resident outside Ontario and lacked sufficient assets in Ontario to satisfy a costs award.

Andersson conceded non-residency and solvency, but contended his shares in LEO Canada and LEO UK, a country with reciprocal judgment enforcement, constituted sufficient assets.

The court found Andersson's Ontario assets (LEO Canada shares) to be of uncertain value due to ongoing financial impropriety allegations.

While acknowledging the motion was not purely tactical and Andersson's case was not overwhelmingly strong, the court exercised its discretion to moderate the amount, considering Kamran's counterclaim and the reasonableness of anticipated legal work.

The motion was granted in part, ordering Andersson to post $50,000.00 in two installments.

This endorsement addresses the costs of a successful motion brought by defendant Atif Kamran to remove Siskinds LLP as counsel for plaintiffs Dan Andersson and LEO Canada Inc., and to compel document production.

The court awarded costs to Mr. Kamran, payable by Mr. Andersson alone, fixed at $17,000.00 on a partial indemnity basis.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by Mr. Andersson and noting that the defendants' settlement offer was technically deficient and lacked clarity, thus not engaging the presumptive consequences of Rule 49.10.

The court also considered the broader context of the litigation and the inflammatory nature of some allegations made by Mr. Kamran.

The defendant brought a motion to find the plaintiffs in civil contempt for allegedly breaching an interim order that mandated joint operation of a corporation, restricted disclosure of litigation details, and required the sharing of corporate information and financial reports.

The court found that the plaintiffs intentionally breached the order by failing to provide access to corporate records and failing to deliver monthly financial reports, resulting in formal findings of contempt.

The court also found the plaintiff breached the disclosure restrictions but exercised its discretion not to make a formal contempt finding on that ground.

The allegations of failing to jointly operate the corporation were dismissed.

The plaintiffs brought a motion to amend their statement of claim in a medical malpractice action to replace 'Dr. John/Jane Doe' with two specific physicians, after the expiry of the limitation period.

The proposed defendants opposed the motion, arguing it was an attempt to add new parties out of time.

The court found that the litigation finger was clearly pointed at the proposed defendants, establishing a misnomer.

The court declined to exercise its residual discretion to refuse the amendment, noting the proposed defendants had early notice of the claim and suffered no non-compensable prejudice.

The motion was granted.

A not‑for‑profit organization sought an interlocutory injunction preventing a bank from terminating its banking relationship pending trial or the outcome of related Federal Court of Appeal proceedings.

The bank had provided approximately four months’ notice of termination after the organization’s charitable status had been revoked by the Canada Revenue Agency.

The court held that banks may terminate banking relationships without cause provided reasonable notice is given and that reasonableness should be assessed in ordinary circumstances rather than based on the plaintiff’s regulatory difficulties.

Applying the RJR‑MacDonald test, the court found the plaintiff failed to establish a strong prima facie case, failed to prove irreparable harm, and did not satisfy the balance of convenience.

The request for mandatory injunctive relief was therefore refused.

In a medical negligence action, the court addressed how the trial should proceed where liability was to be determined by a jury but a limitations defence invoking the doctrine of special circumstances was to be decided by the judge alone.

The defendants argued that the jury must hear all evidence or that the jury notice should be struck, asserting that the evidence relating to liability and the limitation issue was intertwined.

The plaintiffs proposed limiting the jury’s exposure to evidence related to liability and having the limitation issue addressed separately.

The court held that under s. 108(3) of the Courts of Justice Act it could direct that certain issues of fact be tried without a jury.

The trial was ordered to proceed in two phases: a jury phase determining liability followed by a judge-alone phase addressing the limitation issue and related evidence.

During the early stage of a medical negligence jury trial, the defendants brought an oral motion to strike the jury notice and discharge the jury.

The motion arose after the plaintiffs proposed that evidence relating to liability be heard by the jury, while evidence relating to a limitation defence and the doctrine of special circumstances be heard only by the judge.

The court considered whether such compartmentalization of evidence would make the trial unworkable or compromise fairness.

Emphasizing the importance of the substantive right to a jury trial and the substantial onus required to strike a jury notice, the court declined to discharge the jury at that stage.

The judge adopted a “wait and see” approach, permitting the jury to be excluded for witnesses whose evidence related solely to the limitations issue while reserving the decision regarding witnesses whose evidence might overlap both issues.