Ismail Idowu Salih

This endorsement addresses the costs of a dismissed summary judgment motion in a medical malpractice action.

The plaintiffs, having successfully resisted the defendant's motion for summary judgment based on a limitation defence, were entitled to costs on a partial indemnity basis.

The court significantly reduced the plaintiffs' claimed costs of $49,295.22 to $12,000.00, finding the hours billed excessive and disallowing certain disbursements, including the cost of an expert medical report deemed necessary for the main action rather than the specific motion, and unverified copying and computer search fees.

The defendant surgeon brought a motion for summary judgment to dismiss the plaintiffs' medical malpractice action as statute-barred under the Limitations Act, 2002.

The plaintiff suffered a ureter injury following a colon resection in 2012, but only discovered severe kidney damage in 2016, prompting the 2017 lawsuit.

The court dismissed the motion, finding genuine issues requiring a trial regarding whether the kidney damage was a new, distinct injury or an inevitable progression of the ureter injury, and when a reasonable person would have known that a legal proceeding was an appropriate means to seek a remedy.

The applicant, previously declared a vexatious litigant, applied for leave to continue three existing actions and to rescind the vexatious litigant order.

The court found that the applicant failed to demonstrate reasonable grounds for the proceedings and that continuing them would be an abuse of process, noting a history of unpaid costs orders and failure to advance litigation.

The court also declined to rescind the vexatious litigant order, finding the applicant had not learned from past mistakes and continued to exhibit abusive litigation behaviour.

The application was dismissed in its entirety.