Marc J. Somerville

The respondent patient suffered a bowel obstruction caused by a volvulus, resulting in the loss of five feet of her small intestine.

The trial judge found the appellant surgeon breached the standard of care by delaying surgery and that this delay caused the loss of the bowel.

On appeal, the Court of Appeal upheld the finding of a breach of the standard of care but allowed the appeal on causation.

The Court found there was no medical or other evidentiary basis to conclude that, but for the delay in operating, the section of the bowel would likely have been saved.

The judgment was set aside and the claim dismissed.

The respondent sued the appellant doctor for negligently administering a spinal anaesthetic, which she alleged caused sensory loss and pain in her buttock and right thigh.

A jury found the appellant liable.

The appellant appealed the finding of liability, arguing that there was insufficient evidence of causation, that the trial judge's charge to the jury was defective, and that the trial judge erred in answering a jury question.

The Court of Appeal dismissed the appeal, finding that there was sufficient evidence to support the jury's verdict on causation, the jury charge was adequate and did not cause a miscarriage of justice, and the trial judge properly answered the jury's question.

The parties agreed on the costs of the appeal and the motion for leave to appeal.

The Court of Appeal fixed the costs in the amount of $15,000, inclusive of disbursements and GST, to be paid by the appellant to the respondent.

The appellant sought to certify a class proceeding against a life insurance company, alleging negligent misrepresentation in the marketing of whole life policies with a 'vanishing premium' or premium offset feature.

The motion judge and Divisional Court refused certification.

The Court of Appeal dismissed the appeal, finding that the claims relied heavily on individual representations made by agents and individual reliance, meaning the action would ultimately break down into individual proceedings.

The common issues and preferable procedure requirements under section 5 of the Class Proceedings Act were not met.

The appellants appealed the dismissal of their motions to certify their actions as class proceedings against life insurance companies regarding the sale of 'premium offset' or 'vanishing premium' policies.

The Divisional Court upheld the motions judges' decisions, finding that the claims were intrinsically individualistic, based on individual representations by agents, and lacked common issues necessary for class certification.

The appeals were dismissed.

The appellant school board expropriated a portion of the respondents' land for a school site.

The respondents sought compensation for the market value of the land and for lost developer's profit as disturbance damages.

The Ontario Municipal Board awarded market value but denied the claim for lost developer's profit.

The Divisional Court reversed, awarding the lost profit as disturbance damages.

The Court of Appeal allowed the school board's appeal, holding that lost prospective developer's profit is not compensable as disturbance damages under the Expropriations Act, and restored the OMB's award.

The appellant land developers appealed a decision of the Ontario Municipal Board refusing to award disturbance damages for lost developer's profit following the expropriation of a parcel of land by the respondent school board.

The Divisional Court allowed the appeal, applying the Supreme Court of Canada's decision in Dell Holdings to find that disturbance damages are not limited to the expropriated lands and can include the natural and reasonable consequences of the expropriation, such as lost profit on a subdivision development that was virtually complete.

The court awarded the agreed quantum of $437,000 in disturbance damages and dismissed the respondent's cross-appeal.

The appellant physician appealed the refusal to replace the future care and gross-up components of a personal injury judgment with periodic payments under s. 116 of the Courts of Justice Act.

The Court of Appeal held that where a plaintiff seeks gross-up, periodic payments are presumptively required unless the plaintiff shows they are not in the plaintiff's best interests, having regard to all the circumstances.

The trial judge properly treated the inquiry globally, accepted that the plaintiff's financial plan need not be confined to future care spending, and was entitled to consider the lack of a guarantee period, the structure's inflexibility, and concerns about prosthetic innovation and medical-cost inflation.

The appeal was dismissed with costs.

The appellants appealed a libel judgment arising from a press conference at which counsel publicly read and commented on contempt allegations against a Crown attorney that were later found to be untrue.

The Court held that the private defamation action did not constitute government action under s. 32 of the Charter, but confirmed that the common law must nonetheless develop consistently with Charter values.

The Court declined to adopt the American actual malice rule, holding that Canadian defamation law appropriately balances freedom of expression with the protection of reputation.

It further held that any qualified privilege attached to the occasion was defeated by the excessive, careless, and high‑handed dissemination of serious allegations.

The jury's awards of $300,000 general damages, $500,000 aggravated damages, and $800,000 punitive damages were upheld.