Kevin L. Ross

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.

The plaintiffs in a medical malpractice action mistakenly named the wrong emergency room doctor in their statement of claim due to confusing hospital records.

Years later, after discovering the treating doctor's true identity, the plaintiffs moved to amend the statement of claim to substitute the correct doctor's name.

The motion judge granted the amendment, finding it was a case of misnomer because the treating doctor and her representatives would have known she was the intended defendant.

The Court of Appeal dismissed the defendants' appeal, holding that the motion judge did not err in finding a misnomer and properly exercised his discretion to allow the correction despite the delay.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

The appellants and the Law Foundation of Ontario sought leave to appeal costs orders made by the case management judge following the dismissal of several proposed class actions against automobile insurers.

The motion judge had awarded costs to the successful insurers, including substantial indemnity costs where the plaintiffs persisted with unsubstantiated allegations of fraud and deceit to overcome limitation periods.

The Court of Appeal dismissed the application for leave to appeal, finding no error in principle in the motion judge's exercise of discretion regarding entitlement or scale of costs.

Following successful appeals regarding the application of the implied undertaking rule to medical reports, the appellants sought costs.

The respondents argued that no costs should be awarded because the appeals involved a novel and complex question of law with conflicting decisions.

The Divisional Court rejected this argument, finding that the parties were pursuing their own disclosure interests, and awarded costs to the appellants on a partial indemnity scale.

The court fixed the costs for the various stages of the proceedings, ordering that they be payable at the end of the actions to avoid prejudicing the respondents' access to justice.