Kate Cahill

The moving parties brought a motion for leave to appeal an order of Morgan J. dated December 21, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents in the amount of $7,500.

This endorsement addresses the quantum of costs following the Plaintiffs' successful certification motion in a class action.

The court, while acknowledging the Plaintiffs' entitlement to costs on a partial indemnity scale, disallowed a claim for nearly $20,000 in docketed time spent on preparing the costs submissions themselves, deeming it novel and not to be encouraged.

The court rejected the Defendants' argument that the Plaintiffs' fees were too high, noting that both sides invested similar hours and the difference in dollar amounts reflected firm structure rather than overwork.

The Plaintiffs were awarded all-inclusive costs of $496,000.

The plaintiffs sought certification of a national class action against the defendants regarding alleged defects and failures to warn associated with Allergan breast implants, specifically concerning risks of BIA-ALCL, premature rupture, and ASIA/BII.

The court found that the plaintiffs met all the criteria under section 5(1) of the Class Proceedings Act, 1992, including demonstrating a plausible methodology for their claims through expert evidence, despite significant scientific debate.

The action was certified against all defendants, expanding a previous partial certification order.

The Plaintiffs brought a motion to amend their Statement of Claim and for partial certification of a proposed national class action concerning BIOCELL textured breast implants.

The amendments sought to add representative plaintiffs from parallel actions and reorganize the claim.

One defendant, Allergan Inc., consented to both the pleading amendments and the partial certification of a defined class and six common issues, including product defect, duty to warn, and consumer protection breaches.

The court granted the amendments and partial certification against Allergan Inc., finding that the proposed class and common issues met the criteria under the Class Proceedings Act, 1992.

The balance of the certification motion against the other defendants was adjourned.

The plaintiffs brought a motion for leave to appeal the November 30, 2020 order of Davies J. The Divisional Court dismissed the motion for leave to appeal.

No costs were ordered as neither party filed a bill of costs.

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 applicant was injured in a motor vehicle accident and sought payment for assessments in preparation for a Catastrophic Impairment Assessment.

The insurer partially approved the Treatment Plan but denied payment for a physiatry assessment, file review, Whole Person Impairment Analysis, x-rays, and the completion of an OCF-19.

The Tribunal found the physiatry assessment and OCF-19 completion were reasonable and necessary, ordering payment with interest.

However, the Tribunal denied payment for the file review and WPI Analysis as duplicitous, and denied the x-rays because the applicant failed to prove OHIP coverage was not reasonably available.

The City of Toronto brought an ill-conceived summary judgment motion to dismiss the plaintiffs' action for damages arising from a trip and fall, alleging late notice and prejudice.

The plaintiffs opposed and brought a cross-motion.

The City later withdrew its summary judgment motion.

The court awarded substantial indemnity costs to the plaintiffs, finding the City's motion ill-conceived, its allegations of prejudice inaccurate given its own late disclosure of documents, and its conduct during discovery unacceptable.

The plaintiffs brought a medical malpractice action alleging that the defendant family physician's negligence during the mother's pregnancy and delivery caused the infant plaintiff to be born with cerebral palsy.

The plaintiffs argued the doctor failed to properly monitor the mother's hypertension, failed to refer her to an obstetrician, and negligently prescribed enalapril, an ACE inhibitor, shortly before birth.

The Superior Court of Justice dismissed the action, finding that the doctor met the standard of care of a family physician in the circumstances and that his clinical judgments were reasonable.

Furthermore, the court concluded that the plaintiffs failed to prove on a balance of probabilities that the enalapril or the mother's hypertension caused the infant's injuries, which were likely the result of an acute intrauterine event such as cord compression.

The estate trustee and family members of a person who died after contracting SARS sued Ontario, alleging negligence in failing to protect the deceased from the virus.

Ontario moved to strike the statement of claim, arguing it owed no private law duty of care.

The motion judge struck part of the claim but refused to strike it entirely.

On appeal, the Court of Appeal allowed the appeal, adopting its reasons in a companion case to hold that it was plain and obvious Ontario did not owe the deceased a private law duty of care.

The plaintiff brought an action against Ontario and two hospitals after her spouse contracted SARS and died during the 2003 outbreak.

Ontario moved to strike the claim, arguing it did not owe a private law duty of care.

The motion judge refused to strike substantial parts of the claim.

On appeal, adopting the reasons in the related Williams appeal, the Court of Appeal allowed Ontario's appeal, struck the claim in its entirety against Ontario, and dismissed the action, finding no private law duty of care was owed.