Andrew McCutcheon

The appellant appealed a costs award of $300,000 made by the trial judge following a motor vehicle accident case.

The respondent was struck by a vehicle driven by the appellant while crossing a pedestrian crossing.

After a three-week jury trial, the jury awarded the respondent $24,166 in general damages and $26,000 in special damages for past income loss, with a net recovery of $16,160.50 after accounting for contributory negligence and statutory deductibles.

The trial judge awarded costs on a partial indemnity basis, finding the respondent was more successful at trial.

The appellant argued the costs award was wholly disproportionate to the modest recovery and that the trial judge erred in finding the respondent was more successful.

The Court of Appeal dismissed the appeal, upholding the costs award.

A negligence action arising from a fall suffered by an 80-year-old patient hospitalized at London Health Sciences Centre.

The patient was admitted with confusion secondary to a urinary tract infection and subsequently fell on August 15, 2015, resulting in discovery of an acute-on-chronic subdural hematoma requiring neurosurgery.

The patient never recovered her prior cognitive function and died in April 2021.

The court found that the defendant nurses breached the standard of care by failing to complete a Fall Risk Assessment and Intervention Flowsheet and failing to implement a documented toileting routine responsive to the patient's frequent urination needs.

However, the court dismissed the action because the plaintiffs failed to prove on a balance of probabilities that the fall caused the acute portion of the subdural hematoma, and failed to prove that the acute bleed changed the patient's treatment or clinical outcomes.

The defendants brought a motion for a vexatious litigant order against the plaintiffs pursuant to section 140 of the Courts of Justice Act.

The motion was initiated under Rule 2.2 of the Rules of Civil Procedure.

The court found that the procedural requirements of Rule 2.2 had not been properly followed, with the matter languishing for months without the mandatory initial review.

The judge conducted the required initial review and determined that sufficient indications of potential vexatious litigation existed to warrant a hearing under Rule 2.2.07.

The judge ordered that the hearing proceed in writing and imposed a stay of the current proceeding and prohibition on further motions pending determination of the vexatious litigant motion.

The plaintiff brought a motion to amend the statement of claim to replace a 'Jane/John Doe' defendant with a named individual, Hadi Bahiraei, in an action concerning a fatal drug overdose at a mental health facility.

The defendants opposed the amendment, arguing there was an unexplained and inordinate delay of over two years in bringing the motion after the plaintiff learned the individual's identity.

The court granted the motion, finding that while the delay was significant and poorly explained, the amendment would not cause non-compensable prejudice to the defendants.

The plaintiff was ordered to pay $1,500 in costs thrown away.

The appellants appealed an interlocutory order requiring them to produce a witness statement taken by an adjuster from an employee after litigation commenced.

The motions judge had found that litigation privilege over the statement was waived because its contents were discussed and particulars provided during examination for discovery.

The Divisional Court allowed the appeal, holding that the motions judge erred by failing to apply the established principle that a party must disclose relevant facts from a privileged document during discovery without waiving privilege over the document itself.

This appeal addressed whether persistent feelings of frustration and anger, without evidence of impairment, constitute a compensable mental injury under the principles established in Saadati v. Moorhead.

The Court of Appeal found that the trial judge erred in law by failing to apply the "Saadati factors" (cognitive impairment, impact on daily activities, and treatment) when assessing mental injury.

The Court concluded that the plaintiff's reported feelings, absent evidence of functional impairment or treatment, did not meet the legal threshold for a compensable mental injury.

The appeal was allowed, and the action dismissed.

The moving parties sought leave to appeal an interlocutory order requiring the production of a witness statement.

The Divisional Court granted the motion for leave to appeal, with costs of the motion reserved to the panel hearing the appeal and fixed at $3,000.

The plaintiff underwent a reverse ileostomy surgery.

In the recovery room, a nurse erroneously administered a large dose of Heparin instead of Voluven.

The plaintiff subsequently suffered massive internal bleeding, compartment syndrome, and required further surgeries.

The trial was bifurcated to determine liability.

The court evaluated expert testimony and concluded that the plaintiffs failed to prove on a balance of probabilities that the Heparin caused the bleeding, as the evidence suggested the bleeding originated from blood vessels that spasmed during surgery and relaxed post-operatively.

The applicant alleged discrimination based on ethnic origin and disability against a police services board and a hospital.

The applicant missed a connecting flight, exhibited unusual behaviour, and was arrested by police for public intoxication and assaulting an officer.

He was subsequently taken to a hospital where he underwent an involuntary psychiatric assessment.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal found no evidence that the decisions of the police officers or the doctor were based on discriminatory stereotypes or prejudices rather than the applicant's own conduct.

The application was dismissed.

The appellants sued the respondent physicians for damages, including the difference between their actual legal fees and the costs awarded in prior proceedings regarding the withdrawal of life support, as well as damages for various torts based on a pre-litigation letter sent by the respondents' counsel.

The motion judge dismissed the action as an abuse of process.

The Court of Appeal upheld the dismissal, finding that the claim for legal fees was barred by issue estoppel and the tort claims were barred by the doctrine of absolute privilege, as the letter was intimately connected to contemplated judicial proceedings.

Following a prior judgment, the parties reached an agreement regarding costs arising from the motion and the action.

The court issued a costs endorsement confirming the parties’ consent.

The plaintiffs, acting personally and as substitute decision maker and litigation guardian for other parties, agreed to pay the defendant physicians a lump sum amount.

The order formalized the agreed costs payment resolving the outstanding costs issue between the parties.

The applicant filed a request to reactivate his human rights application, which had been deferred pending the conclusion of an appeal to the Health Professions Appeal and Review Board (HPARB).

Following the issuance of the HPARB decision, the applicant filed a timely request to reactivate.

The respondents did not oppose the request.

The Tribunal granted the request, reactivated the application, and directed that a morning mediation be scheduled.

Physicians sought to withdraw life support from an incapable patient while the substitute decision-maker refused consent.

The Court held, by majority, that withdrawal of life support in the circumstances constituted treatment under Ontario’s Health Care Consent Act, 1996 and therefore required consent under the statutory regime.

The majority concluded that disputes over refusal of consent must be addressed before the Consent and Capacity Board, which may substitute its decision if statutory best-interests criteria are not met.

Dissenting reasons would have resolved the dispute under the common law rather than the statutory board process.

The appeal was dismissed, with dissent.

The plaintiffs brought a medical malpractice action against the defendant cardiologist following the sudden death of a 36-year-old man who collapsed after completing a half-marathon.

The deceased had severe aortic stenosis.

The plaintiffs alleged the defendant failed to properly advise the deceased against strenuous exercise.

The court ruled that hearsay statements by the deceased regarding the doctor's advice were inadmissible for lack of threshold reliability.

The court accepted the defendant's evidence that he had advised the deceased against distance running and warned him of the risk of sudden death.

The court found the defendant met the standard of care and dismissed the action.

The respondents brought a Request for Order seeking to dismiss multiple human rights applications filed by the applicant as an abuse of process and to declare the applicant a vexatious litigant.

The applicant had filed numerous applications alleging discrimination and reprisal in the handling of his statutory accident benefits claims.

The Tribunal found that the applicant engaged in a pattern of delaying proceedings, failing to attend hearings, making baseless allegations against the Tribunal, and using the applications for the improper purpose of coercing a settlement.

The Tribunal dismissed the applications as an abuse of process and declared the applicant a vexatious litigant, prohibiting him from filing further applications against the respondents regarding his accident benefits claims without leave.

The appellant doctor appealed a trial judgment awarding damages to the respondent patient and his family for a stroke suffered following a cervical rhizotomy.

The trial judge found the appellant failed to obtain informed consent and that a reasonable person in the respondent's position would not have consented if properly informed.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions on liability and upholding the damages awards for general damages and future economic loss.

The moving parties brought a motion to set aside an order requiring them to post security for costs of their appeal.

The underlying appeal was from a summary judgment dismissing their action against the responding parties.

The moving parties argued the summary judgment order was made without jurisdiction.

The Court of Appeal found no merit in their position and dismissed the motion, awarding costs to the responding parties.

The applicant physician brought an appeal and an application for judicial review challenging an interlocutory decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The Committee had ruled it had jurisdiction to hear allegations regarding patients not specifically named in the Notice of Hearing.

The Divisional Court quashed the application for judicial review for prematurity, finding no exceptional circumstances to intervene in the ongoing disciplinary process, as the Committee reasonably concluded it had jurisdiction.

The Court also quashed the appeal, holding that it lacked jurisdiction under the Health Professions Procedural Code to hear an appeal from an interlocutory decision.

The respondent patient was in a persistent vegetative state on a mechanical ventilator.

The appellant treating physicians proposed to withdraw life support and provide palliative care, arguing that the life support was medically futile and did not require the consent of the patient's substitute decision-maker.

The substitute decision-maker refused consent.

The Court of Appeal held that the withdrawal of life support and the administration of end-of-life palliative care are integrally linked and constitute a 'treatment package' under the Health Care Consent Act.

Therefore, the physicians required the substitute decision-maker's consent, and in the absence of consent, were required to refer the matter to the Consent and Capacity Board.