Anita M. Varjacic

The plaintiff, Roger Foley, failed to comply with a prior court order requiring payment of over $100,000 in costs to the defendants by August 30, 2024.

Despite being given an opportunity to respond, the plaintiff did not dispute non-payment and failed to provide sufficient evidence of impecuniosity.

The court dismissed the action against all remaining defendants, refusing a further extension of time or to convert unpaid costs to costs in the cause, emphasizing the importance of compliance with court orders.

This decision addresses the issue of costs following the striking out of the plaintiff's claim.

The plaintiff sought to have his former lawyer personally pay costs or for no costs to be awarded.

The court dismissed the request for personal costs against the lawyer, finding his conduct did not cause unnecessary costs and did not meet the high threshold for such an order.

The court awarded partial indemnity costs to the defendants and imposed terms requiring the plaintiff to pay all outstanding costs orders (including prior ones) before being permitted to amend his claim, failing which the action would be dismissed.

The plaintiff, a person with a severe neurodegenerative condition, brought an action against multiple defendants alleging Charter violations, public law breaches, and private law duties related to his hospital care, home care funding, and the constitutionality of the medical assistance in dying (MAID) provisions of the Criminal Code.

The defendants moved to strike the statement of claim under Rule 21.01(1)(b).

The court struck the statement of claim in its entirety, finding it failed to plead material facts, asserted causes of action unknown to law (such as a freestanding Charter right to health care), and constituted an abuse of process by collaterally attacking binding Supreme Court jurisprudence.

The action was dismissed against the federal and provincial Crown defendants without leave to amend.

Leave to amend was granted on strict terms for specific claims against the hospital, the local health integration network, and the independent living centre.

This motion concerned the finalization of a genetic testing requisition form.

Following previous orders for genetic testing, the plaintiffs objected to the defendants' initial requisition form, alleging bias and incompleteness.

The defendants subsequently provided revised forms incorporating the plaintiffs' expert's suggestions.

The court, noting the experts' agreement on the clinical content of the latest form, ordered the requisition form to be finalized consistent with the defendants' third proposed version, along with a prenatal history.

The court dismissed the plaintiffs' objections regarding the form's content and the governing law/subcontracting terms, finding them without merit.

Roger Foley, the plaintiff, brought a motion under Rule 2.1.02 of the Rules of Civil Procedure to disqualify Neil Searles as counsel for the Centre for Independent Living in Toronto (CILT).

Foley alleged conflict of interest, divided loyalty, and that Searles would be a necessary witness due to a 1996 article he authored on physician-assisted suicide.

The court, on its own initiative, considered dismissing the motion as frivolous or vexatious.

The court found the motion frivolous, noting that CILT opposed the removal of its counsel, that accepting a binding Supreme Court decision (Carter) is not a basis for disqualification, and that Foley's attempt to call Searles as a witness was unlikely to be permitted at trial.

The motion was dismissed.

The midwife and physician defendants sought costs for a motion to vary and settle the terms of an order requiring the plaintiffs to undergo genetic testing.

The parties had settled most issues, but the defendants were successful on the sole contested issue regarding whether the testing laboratory's reports must comply with Rules 33.06 and 53.03(2.1).

The court awarded costs of $12,500 to each of the moving parties, payable in the cause, reflecting partial success and proportionality.

The midwife and physician defendants moved to vary a previous order requiring the plaintiffs to undergo independent medical examinations involving genetic testing.

The variation sought to change the designated laboratory from GeneDX to Blueprint Genetics and extend the deadline, as GeneDX no longer performed testing for legal cases.

The plaintiffs agreed to the change but requested a condition that the laboratory's reports comply with Rules 33.06 and 53.03(2.1) of the Rules of Civil Procedure.

The court granted the motion to vary the laboratory and deadline, but declined to impose the requested condition, finding that the rules apply to examining health practitioners and experts intended to be called at trial, not to the laboratory conducting the tests.

This ruling addresses two motions to strike portions of a statement of claim brought by the plaintiffs, Jayelle and Sarel Alafi, against midwives and the Children's Aid Society of Algoma (CAS).

The Alafis sued for negligence, negligent misrepresentation, negligent infliction of mental suffering, intrusion upon seclusion, misfeasance of public office, and Charter s. 7 breaches, following the apprehension of their newborn child.

The court struck Mr. Alafi's negligence claims against the midwives related to their scope of practice, finding no duty of care owed to a non-patient third party.

The court also struck the plaintiffs' negligence claims against the CAS, reaffirming that the CAS's duty is solely to the child.

However, the court dismissed the CAS's motion to strike the plaintiffs' s. 7 Charter claims, finding it not plain and obvious that these claims would fail, particularly regarding the right to security of the person in child protection contexts.

Portions of the midwives' motion were adjourned for further submissions.

In an obstetrical malpractice action, the defendant midwives and physicians brought motions for an order compelling the infant plaintiff and his biological parents to undergo blood tests for specific genetic testing.

The defendants argued that the infant's severe neurocognitive impairments may have a genetic etiology rather than being caused by perinatal hypoxia.

The plaintiffs opposed the motions, arguing that the court lacked jurisdiction to order genetic testing due to the federal Genetic Non-Discrimination Act, and that the defendants were liable for all injuries under the thin skull doctrine regardless of any genetic predisposition.

The court held that it has the authority to order genetic testing under section 105 of the Courts of Justice Act and Rule 33.

Finding that the possibility of a genetic cause was not frivolous and that the factors of fairness, necessity, and prejudice weighed in favour of the defendants, the court ordered the infant and his biological parents to provide blood samples for genetic testing.

The plaintiffs in a medical malpractice action appealed a Master's decision upholding a defendant doctor's refusal to answer certain hypothetical questions during his examination for discovery.

The Superior Court of Justice dismissed the appeal, finding that the Master correctly ruled that the doctor was not required to answer hypothetical questions based on factual premises he disputed, nor questions that indirectly asked him to opine on the standard of care or decisions of other medical professionals involved in the infant plaintiff's care.

The court issued an endorsement on costs and the deductibility of a prior settlement following a jury trial.

The plaintiffs were awarded damages and punitive damages against the defendants.

The court ruled that a settlement received by one plaintiff from the City of Brampton, explicitly labeled as general damages, was not deductible from the jury's award for loss of income, rejecting the defendants' claim of double recovery.

Regarding costs, the court found the defendants' Rule 49 offer to be improper due to its non-severable nature for multiple plaintiffs and that the plaintiffs' net award exceeded the offer.

Considering the complexity, importance of issues, and the defendants' aggressive litigation tactics, the court awarded the plaintiffs partial indemnity costs, fixing the total at $445,000, which included fees, disbursements, and costs thrown away due to an adjournment.

This endorsement addresses case management issues in a long-standing action arising from a farm visit in 2005, particularly concerning the minor plaintiff Samuel Simpson who suffered significant cognitive and physical issues.

The court convened a case conference to establish a timetable for the delivery of expert reports, emphasizing the unacceptable delays in the case.

The judge ordered expedited efforts to obtain an MRI for the minor plaintiff and set specific deadlines for the service of expert reports on damages and liability for all plaintiffs and the defence.

The court also raised concerns about the minor plaintiff's representation after he turns 18 and directed counsel to make inquiries regarding a future litigation guardian.

The appellant telecommunications carriers appealed a final order of the Ontario Energy Board (OEB) that increased the annual pole attachment charge payable to Hydro One Networks Inc. The appellants argued that the OEB breached procedural fairness by expanding the scope of their review and vary motion to include new evidence and issues, and erred in law by refusing to order production of a pole sharing agreement between Hydro One and Bell Canada.

The Divisional Court dismissed the appeal, finding that the OEB conducted the hearing fairly by granting the appellants' request for a hearing de novo and allowing all parties to present updated evidence.

The Court also held that the OEB's refusal to order production of the actual agreement, while requiring disclosure of its relevant financial impacts, was within its procedural jurisdiction and did not breach natural justice.

The representative plaintiffs moved for approval of a $2.375 million settlement in a class action concerning the under-dosing of chemotherapy drugs at several hospitals.

The defendants, who supplied and administered the drugs, denied liability, arguing there was no evidence of clinical impact on patient outcomes and that the plaintiffs' psychological harm did not meet the legal threshold for a recognizable psychiatric illness.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class given the significant litigation risks, the lack of evidence showing clinical harm, and the recommendations of experienced class counsel.

The court also approved class counsel's requested fees of $400,000.

The plaintiff sought costs after the defendant abandoned a previously commenced motion seeking production of privileged Schedule B documents.

The court applied Rule 37.09(3) of the Rules of Civil Procedure, which presumptively entitles the responding party to costs when a motion is abandoned unless the court orders otherwise.

The court accepted that the underlying motion raised complex issues involving solicitor-client privilege and waiver but found portions of the plaintiff’s claimed time and hourly rate excessive.

Applying proportionality and the governing costs principles, the court reduced the hours claimed and adjusted counsel’s hourly rate.

Partial indemnity costs were fixed and ordered payable by the defendant.

The appellants appealed an order dismissing their motion to amend their Statement of Defence and Crossclaim in a medical malpractice action.

The appellants sought to plead that the defendant nurse was an employee of the respondent hospital, contrary to their earlier position and discovery evidence that she was an independent contractor supplied by an agency.

The Divisional Court upheld the master's decision, finding that although the master erred in applying Rule 51.05 to a discovery admission, the amendment would cause non-compensable prejudice to the hospital, which had relied on the appellants' initial position in conducting discoveries and retaining an expert.

The appeal was dismissed.

The respondents brought a motion requesting the Court of Appeal vary its order for a new trial to an order remitting the matter to the trial judge.

The Court declined to grant the relief, finding it would not be appropriate to ask the trial judge to revisit her conclusions on the critical causation issue based on the Court's reasons.

The motion was dismissed without costs.

The respondents sued the appellant hospital and several doctors for medical malpractice following the birth of their daughter, who suffered severe brain damage due to asphyxia during labour.

The trial judge dismissed the claims against the doctors but found the hospital vicariously liable for its nurses' failure to properly monitor the fetal heart rate between 6:30 and 7:00 p.m.

The trial judge inferred that proper monitoring would have detected the asphyxia, leading to an expedited delivery that would have spared the child's injuries.

The Court of Appeal allowed the hospital's appeal and ordered a new trial, finding that the trial judge misapplied the law of causation by using a 'robust and pragmatic approach' to infer causation without reviewing and making necessary findings on conflicting expert evidence regarding whether the earlier period of asphyxia was actually detectable by intermittent auscultation.

The appellants appealed an order dismissing their medical malpractice action on a motion for summary judgment because it was commenced outside the one-year limitation period under the Health Professions Procedure Code.

The appellants argued the motion judge erred by refusing to consider medical evidence acquired after the action was commenced.

The Court of Appeal dismissed the appeal, agreeing that the relevant period for the discoverability doctrine is before the action is commenced, and the appellants knew or should have known the material facts to base their claim prior to the expiry of the limitation period.