Mark S. Grossman

The plaintiff, Tylor D'Aoust, sued his pharmacist and pharmacy for alleged negligence in failing to warn him about the side effects of prescribed medication (oxazepam) after a motor vehicle accident.

The plaintiff, who had a history of opioid addiction and mental health issues, claimed the lack of warning contributed to his impaired driving.

The court assessed the standard of care for a community-based pharmacist, the credibility of the witnesses, and the issue of causation.

The court found that the pharmacist met the professional standard of care by providing verbal counselling, including a warning about operating a motor vehicle, to the plaintiff's authorized agent (his mother).

The court also concluded that the plaintiff failed to establish, on a balance of probabilities, that the oxazepam caused the accident, finding that the accident was not unavoidable and was not caused by the medication.

The action was dismissed.

This is a costs endorsement following a motion for summary judgment in a mortgage action.

The plaintiff, 1658161 Ontario Inc., sought costs after obtaining partial summary judgment, arguing the motion was necessary due to the defendant's, Dianne Marie Carroll's, failure to pay and refusal to acknowledge possession rights.

The defendant opposed, claiming she had consented to part of the judgment.

The court, applying principles from the Courts of Justice Act and Rules of Civil Procedure, determined that costs should be fixed at this stage rather than reserved for trial.

The plaintiff's costs claim was reduced by one-third for the summary judgment motion, and the defendant was ordered to pay $10,000 in costs to the plaintiff.

The defendant insurer, SSQ, Life Insurance Company Inc., brought a motion for summary judgment to dismiss the plaintiff's action for long-term disability benefits.

SSQ argued that the plaintiff, Judith Marlen Fricke, had waived her right to sue by agreeing to a Medical Appeals Process (MAP) which resulted in a binding decision that she was not totally disabled.

The plaintiff contended that the MAP agreement was not valid or enforceable because SSQ failed to apply the correct legal test for total disability and the independent physician may have exceeded his expertise.

The court dismissed SSQ's motion for summary judgment, finding a genuine issue requiring a trial regarding whether the correct test for total disability was applied during the MAP process and the enforceability of the MAP agreement given potential issues of bias and fairness.

The defendant brought a motion to quash a witness summons issued by the plaintiff to an independent medical assessor who had concluded the plaintiff was not totally disabled under a medical appeals process.

The plaintiff sought to use the examination transcript to defend an upcoming summary judgment motion.

The court granted the motion to quash, finding that the evidence sought was irrelevant to the summary judgment motion, which focused on whether the plaintiff had waived her right to sue.

Furthermore, the court held that the plaintiff improperly used Rule 39.03 to elicit expert opinion evidence without complying with the expert report requirements of Rule 53.03, constituting an abuse of process.

The plaintiff, Judith Marlen Fricke, sought leave to file a reply and to set aside a binding decision from a Medical Appeals Process (MAP) concerning her long-term disability claim against SSQ, Life Insurance Company Inc. The court dismissed both applications.

It held that a new ground of claim challenging the enforceability of the MAP process should have been raised by amending the Statement of Claim under Rule 25.06(5) of the Rules of Civil Procedure, rather than through a reply.

The court also denied leave to set aside the arbitral award, noting that Ms. Fricke had not filed proper pleadings in support of the requested relief.

This ruling addresses the costs of an application where both parties acted in good faith and presented meritorious positions.

The court found that both were well-represented and neither suffered unexpected prejudice from the court's decision.

Consequently, the court directed that each party shall bear their own costs of the application.

This ruling on application addresses the equalization of net family properties and spousal support following the separation of a couple married for nearly 30 years.

The court determined the separation date as 2010, despite conflicting evidence, and proceeded to divide assets to ensure financial security for both parties.

The applicant was awarded the matrimonial home, a global support payment, and an equal share of proceeds from a Portuguese property, while the respondent retained an income-generating property.

In an addendum to a trial judgment, the court corrected a calculation error in the damages award based on the jury's decision.

With the agreement of counsel, the court recalculated the award by applying a 20 percent reduction for contributory negligence to the pecuniary damages, and applying the statutory deductible followed by the contributory negligence reduction to the non-pecuniary damages.

The total judgment was amended to $136,483.20.

Following a jury trial for a motor vehicle accident where the plaintiff was awarded $160,480 after a 20% deduction for contributory negligence, the court determined the costs of the action.

One of the plaintiffs abandoned her claim on the eve of trial.

The court declined to award costs directly against the abandoning plaintiff but reduced the successful plaintiff's costs to reflect the shared representation.

The successful plaintiff was awarded $72,000 in costs on a partial indemnity basis, with a deduction for an insurance premium disbursement.

The applicant pharmacist sought judicial review of a decision by the Health Professions Appeal and Review Board, which confirmed an order requiring him to complete a communication skills program following a patient complaint.

The applicant argued he was not given notice that the tone of his response to the complaint would be considered, and that the ordered program was not a specified remediation program under the Regulated Health Professions Act.

The Divisional Court dismissed the application, finding the Board's decision reasonable, as the committee was entitled to consider the applicant's response without further notice, and the ordered program was sufficiently specified.

Following the conclusion of the action, the successful defendants sought partial indemnity costs exceeding $100,000 including legal fees, HST, and expert disbursements.

The plaintiff opposed aspects of the fee claim, arguing duplication of counsel time due to a late change in representation and asserting that a costs award would impose financial hardship.

The court held that financial hardship alone does not justify departing from the general rule that costs follow the event.

While accepting the defendants’ entitlement to costs, the court reduced certain hourly rates and hours claimed to account for the complexity of the case and potential duplication.

Costs were awarded to the defendants in the reduced amount.

The plaintiff sought damages arising from a motor vehicle accident in which liability was admitted, leaving damages to be determined by a jury.

After the jury awarded modest damages, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act arguing the plaintiff had not proven a permanent serious impairment of an important function.

The court reviewed medical and psychological evidence and assessed the plaintiff’s credibility, noting significant inconsistencies, surveillance evidence contradicting reported limitations, and unreliable self-reports relied upon by experts.

Accepting the defence expert evidence and rejecting the plaintiff’s subjective complaints, the court held the plaintiff failed to establish that his injuries met the statutory threshold.

The defendants’ motion was granted and the action dismissed.

The appellant appealed a trial judgment granting a non-suit.

The Court of Appeal found that the trial judge erred because there was probative evidence of the oral contract contended for by the appellant.

The appeal was allowed, the judgment was set aside, and judgment was ordered for the appellant with costs.