Carolyn Brandow

The Court of Appeal for Ontario considered the issue of costs following an appeal between the Township of Adelaide Metcalfe and the Municipality of Strathroy-Caradoc.

The court determined that there would be no costs of the appeal, as the determinative issue was not raised before the Divisional Court.

The costs previously ordered by the Divisional Court were set aside.

The appellant municipality appealed a Divisional Court order that quashed an Ontario Land Tribunal decision assuming jurisdiction over a dispute regarding a municipal servicing agreement.

The Court of Appeal held that the Tribunal's decision was interlocutory, as it only assumed jurisdiction on a prima facie basis and deferred the final determination of forum to the Superior Court.

Because the Ontario Land Tribunal Act only permits appeals of final decisions, the Divisional Court lacked jurisdiction to hear the appeal.

The appeal was allowed and the Tribunal's order was restored.

The plaintiffs sought summary judgment for debt collection, which the defendants resisted, arguing genuine issues for trial, partial summary judgment not disposing of litigation, and limitation issues.

The court dismissed the motion, finding numerous triable issues, including the quantum owed, the responsible corporate entity, Charles James Hevey's personal liability, and the validity of acknowledgments.

The court also noted the complexity of the corporate structures, the casual financial dealings between family members, and the presence of credibility issues, concluding that the case was not suitable for summary judgment or the use of expanded powers under Rule 20.04(2.1), and that partial summary judgment would not satisfy the criteria for efficiency or consistency given the ongoing third-party claims.

The plaintiff, a former nursing student, sought leave to amend her statement of claim to add Dr. George Heckman as a defendant, alleging defamation and negligent misrepresentation.

Dr. Heckman opposed the motion, arguing the claims were statute-barred by the Limitations Act, 2002, and that the negligent misrepresentation claim failed to disclose a reasonable cause of action due to the absence of a special relationship and reasonable reliance.

The court found that the plaintiff had discovered the material facts for her claims by September 28, 2020, or November 2020 at the latest, making her March 15, 2023 motion to add Dr. Heckman out of time.

Additionally, the negligent misrepresentation claim failed because no special relationship or reasonable reliance was pleaded.

Leave to amend the statement of claim to add Dr. Heckman as a defendant was denied.

The appellant municipality appealed a decision of the Ontario Land Tribunal asserting jurisdiction over a dispute regarding a water and sewage servicing agreement with the respondent municipality.

The Divisional Court found that the Tribunal erred in its interpretation of the agreement's termination clause by failing to apply a pragmatic and common-sense approach and by considering subsequent conduct without finding ambiguity.

Because the agreement had validly terminated, the statutory basis for the Tribunal's jurisdiction under the Municipal Act was removed.

The appeal was granted and the Tribunal's order was quashed.

The applicant sought judicial review of a Health Professions Appeal and Review Board (HPARB) decision confirming the dismissal of a complaint against a physician.

The physician had accessed the deceased patient's hospital records multiple times after being sued for medical malpractice, without the patient's consent.

The Divisional Court allowed the application, finding that the HPARB and the investigating committee unreasonably interpreted the Personal Health Information and Protection Act (PHIPA).

The court held that the physician acted as an agent of the hospital, not a health information custodian, and therefore could not unilaterally access the records outside the civil litigation discovery process.

The applicant, a dentist, sought judicial review of a decision by the Health Professions Appeal and Review Board.

The Board had upheld a decision by the Inquiries, Complaints and Reports Committee of the Royal College of Dental Surgeons of Ontario requiring the applicant to appear for a caution and complete a remediation program regarding record-keeping, informed consent, and case work-up.

The applicant argued he was denied procedural fairness when the Committee refused further written submissions after the matter was remitted by the Board.

The Divisional Court dismissed the application, finding no denial of procedural fairness and concluding that the Board's decision was reasonable.

The respondent doctor brought a motion for an extension of time to appeal an order granting the Ontario Trial Lawyers Association (OTLA) intervenor status in a judicial review application.

The underlying application concerned a regulatory decision regarding the doctor's access to a former patient's medical records.

The Divisional Court granted the extension of time, finding the short delay was reasonably explained by counsel's inadvertence.

On the merits, the court set aside the intervenor order, concluding that OTLA's proposed submissions would be duplicative of the applicant's and that the matter was primarily a private regulatory dispute.

Olga Chubarev appealed a decision of the Consent and Capacity Board which found her incapable of consenting to treatment with anti-psychotic medications and confirmed the renewal of a Community Treatment Order.

The Superior Court of Justice dismissed the appeal, finding that the Board's decision was reasonable, not infected by factual error, and that the Board reasonably applied the law to the facts.

The court affirmed the Board's conclusion that the appellant was unable to appreciate the benefits of treatment and thus could not weigh them against the risks.

Five patients of Dr. Cathy Frank, an obstetrician and gynecologist, brought separate actions for medical negligence and breach of fiduciary duty.

The actions were commenced between September 2012 and August 2013, outside the two-year limitation period under the Limitations Act, 2002.

The defendants moved for summary judgment on the basis that the claims were statute-barred.

The motion judge granted the motions, finding that the plaintiffs had not acted with reasonable diligence to discover their claims.

The plaintiffs appealed, arguing that the motion judge erred in interpreting the discoverability principle and that a press release issued in November 2011 by counsel for the plaintiffs should have restarted the limitation period.

The Court of Appeal dismissed the appeals, upholding the motion judge's decision.

The appellant appealed a decision of the Consent and Capacity Board that confirmed his incapacity to consent to treatment with antipsychotic medications.

The Board found that while the appellant understood relevant information, he was unable to appreciate the reasonably foreseeable consequences of his decision or lack thereof, primarily due to his denial of his psychiatric illness.

The Superior Court of Justice dismissed the appeal, finding no procedural unfairness in the Board's electronic hearing, no misconstruction of the statutory test for capacity under the Health Care Consent Act, 1996, and that the Board's decision was reasonable and supported by evidence.

The defendants moved for summary judgment in multiple consolidated medical malpractice actions, arguing that the plaintiffs' claims were statute-barred by the Limitations Act, 2002.

The plaintiffs contended that their claims were only discovered after a 2011 press release and media coverage regarding allegations against Dr. Frank.

The court applied the objective discoverability test, finding that the plaintiffs were aware, or ought to have been aware, of the material facts giving rise to their claims well before the press release.

The information from the press release did not provide new material facts related to their individual care but rather served as evidence to support existing allegations.

Consequently, the court determined that the plaintiffs failed to demonstrate due diligence in discovering their claims, and thus, their actions were statute-barred.

The appellant appealed the dismissal of its action against the respondents.

The Court of Appeal found ample evidence that an Easement and Lake Water Supply Agreement had been conveyed to the appellant through an Assignment and Assumption of Contracts Agreement and a vesting order.

The motion judge erred in dismissing the action on the basis that the agreement had not been transferred.

The appeal was allowed, the order set aside, and partial summary judgment granted declaring the agreement was conveyed to the appellant.

The appellant appealed a decision dismissing his application for a declaration that a section of a forced road had been assumed by the municipality as a public highway.

The application judge found that historical, sporadic maintenance by the municipality did not demonstrate a clear and unequivocal intention to assume the road.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's assessment of the evidence.

A medical malpractice action arising from the treatment of a young patient presenting with neurological symptoms at a rural hospital.

The physician failed to recognize the possibility of stroke, lowered the patient’s blood pressure aggressively, and delayed consultation with a tertiary neurology centre.

The court held that the physician breached the standard of care by failing to include stroke in the differential diagnosis, lowering blood pressure despite neurological signs, and delaying transfer for specialist assessment.

Applying the “but for” causation test from Clements v. Clements, the court found that the precipitous blood pressure reduction and delayed administration of heparin promoted clot formation which caused the catastrophic stroke.

The plaintiffs established causation on a balance of probabilities and were awarded damages.

During a medical malpractice trial, the defendants brought a motion under s. 12 of the Ontario Evidence Act seeking leave to call more than three expert witnesses.

The case involved allegations that an emergency room physician negligently failed to recognize stroke symptoms and delayed transfer for specialized care, allegedly resulting in quadriplegia.

The court considered factors relating to duplication, fairness between parties, necessity of additional expert evidence, and litigation cost.

Finding that the issues concerned only standard of care and causation and that three experts were sufficient to address them, the court concluded that allowing additional experts would create unnecessary duplication and disadvantage the plaintiffs.

Leave to call more than three medical experts was therefore refused.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal found that the respondent had not properly proved its default judgment.

Although this issue was not raised before the motion judge, the Court held it was in the interests of justice to set aside the default judgment to allow the appellant to contest the quantum of the claim and pursue a counterclaim for rental arrears.

The appeal was allowed, the default judgment was set aside, and the motion judge's costs award was varied.

The infant plaintiff suffered a severe brain injury at birth in 2001.

The plaintiffs brought a timely action against several health practitioners.

In 2009, the plaintiffs' medical expert advised counsel of concerns regarding the infant's postnatal care, prompting a motion to add new defendants.

The motion judge dismissed the motion, finding the claims were not discoverable before January 1, 2004, and were therefore statute-barred under the new Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that the claims were discoverable before January 1, 2004, because a reasonable person acting as litigation guardian would have retained competent counsel to review the hospital records obtained in 2002.

Consequently, the former limitation period applied, which suspended the limitation period for minors, meaning the proposed claims were not statute-barred.

The appellant applied to amend a municipal by-law schedule to permit a second adult entertainment parlour location.

The City refused the application because the proposed location abutted a residential property, contrary to the by-law.

The appellant appealed, alleging bad faith, misinterpretation of 'residence', and procedural unfairness.

The Court of Appeal dismissed the appeal, finding no bad faith, agreeing the abutting property was a residence despite being unoccupied during renovations, and concluding a full hearing would not have changed the outcome.

The appellant tenant appealed from two orders: one dismissing her application to direct arbitration under a commercial lease, and another granting the respondent landlord a writ of possession.

The Court of Appeal dismissed the first appeal, finding that the arbitration clause did not apply to the dispute over a future lease after the original lease and extension agreement had expired.

The second appeal was quashed for want of jurisdiction under s. 78(1) of the Commercial Tenancies Act.