K. Kalogiros

The plaintiff brought a motion to amend her statement of claim in a medical malpractice action against an otolaryngologist.

The defendants opposed several amendments, arguing they sought to add statute-barred causes of action and withdraw an admission.

The court found that the proposed amendments regarding two additional surgeries performed on the same day added new causes of action outside the limitation period.

The court also refused leave to withdraw an admission regarding when a risk discussion occurred, as the plaintiff failed to provide a reasonable explanation for the change in position.

The contested amendments were dismissed.

The plaintiffs brought an unopposed motion to appoint Brooke Charlotte Nichol as the estate representative for the deceased plaintiff, Richard Nichol, and to amend the statement of claim accordingly.

The deceased plaintiff died during the course of the medical malpractice action, and his estate was not probated.

The court found the order necessary to allow the estate to proceed with the action and granted the requested relief.

The defendants brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike an amended statement of claim alleging negligence, breach of fiduciary duty, intrusion upon seclusion, conspiracy, and breach of contract arising from a fertility clinic nurse’s alleged affair with the plaintiff’s partner during treatment.

The court applied the “plain and obvious” test from R. v. Imperial Tobacco Ltd. and held that several claims disclosed arguable causes of action, particularly those grounded in fiduciary duty, professional negligence, breach of confidence, and privacy.

The court emphasized that novel claims arising in sensitive medical contexts should not be struck where they have a reasonable prospect of success and should instead proceed to trial for full evidentiary assessment.

However, certain allegations relating to the defendants’ failure to investigate or discipline the employee and irrelevant narrative material were struck as disclosing no reasonable cause of action or as scandalous pleadings under Rule 25.11.

The remainder of the motion to strike was dismissed.