Nada Nicola-Howorth

The Court of Appeal for Ontario dismissed Michelle Botosh’s appeal from the order striking out her 2023 action against members of the defence team from her earlier personal injury litigation.

The court found the new action was a collateral attack on the 2013 judgment and an abuse of process.

The court also upheld the motion judge’s findings regarding witness and lawyer immunity, the absence of a privacy claim, and the reasonableness of the costs award.

The Plaintiffs in multiple class actions brought an omnibus motion for approval of a proposed notice plan, including direct notice and production orders from Defendants, following a complex certification decision where some actions were certified, some partially, and some dismissed.

The court denied the request for direct notice and associated production orders, finding it would impose a substantial and undue burden on defendants, particularly those against whom certification was denied.

The court also noted that such production could be seen as an attempt to solicit new representative plaintiffs or re-litigate issues already decided at the certification stage.

An indirect notice strategy was approved, and costs for the notice plan were allocated, with the Plaintiffs bearing a larger share.

This is a motion for court approval of a settlement in a complex medical malpractice case involving a person under disability, Nathaniel Hughes.

The plaintiffs sought approval of a $4.5 million settlement, including a structured annuity, for injuries sustained by Nathaniel as an infant at Peterborough Regional Health Centre.

The court reviewed the settlement under Rule 7.08 of the Rules of Civil Procedure, considering the risks of litigation and the best interests of the person under disability.

The court found the settlement, including legal fees and disbursements, to be fair and reasonable given the complexities and risks, and approved it.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The appellant appealed a decision of the Consent and Capacity Board finding him incapable of consenting to proposed psychiatric and medical treatments.

The appellant argued that the Board failed to properly consider his religious beliefs, which he maintained were sincere and not delusions, thereby violating his rights under section 2(a) of the Charter.

The Superior Court of Justice found that the Board made an extricable error of law by failing to take into account Charter values when assessing whether the appellant's beliefs were sincere religious beliefs or manifestations of a mental illness.

The appeal was allowed and the matter was remitted to the Board for a rehearing.

The defendant doctors brought a motion for summary judgment to dismiss a medical malpractice action on the basis that it was statute-barred.

The plaintiff had a plastic bulb syringe left in her vagina following a hysterectomy in November 2009, which was discovered and removed shortly thereafter.

The plaintiff did not commence the action until April 2015, arguing she did not know she had a cause of action until consulting counsel in 2013.

The court found that the plaintiff knew or ought to have known the material facts giving rise to the claim by December 2009 at the latest.

The motion was granted and the action against the defendant doctors was dismissed.

The appellants sought to add three health care providers as defendants to a medical malpractice action more than two years after the original injury.

The motion judge dismissed the motion on the basis that the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the motion judge applied the wrong test under the Limitations Act, 2002.

The court held that the motion judge failed to make proper findings of fact regarding when the appellants knew or ought reasonably to have known of their claims against the proposed defendants.

The court also found that the motion judge erred in treating lack of due diligence as a standalone ground for finding claims statute-barred.

The key distinction was that the claims against the proposed defendants differed from the claim against the original defendant, as they involved allegations that the health care providers failed to take immediate action once cauda equina syndrome was suspected, information that was only revealed during examinations for discovery in 2015.

The appellant sought an adjournment of his appeal from a Superior Court judgment dated February 16, 2017, regarding an application under the Health Care Consent Act.

The appellant, an involuntary patient at Brampton Civic Hospital, wished to attend the hearing of his appeal.

The respondent did not oppose the adjournment request.

The court granted the adjournment to a date to be fixed.

The applicant appealed a board decision confirming the validity of a Community Treatment Order (CTO).

By the time of the appeal, the CTO had expired and had not been renewed.

The court found the appeal was moot because a decision would have no practical effect on the parties' rights, and declined to exercise its discretion to hear the moot issue.

The court also held that the board's decision was reasonable and its reasons were sufficient, even though it did not explicitly detail the requirement for 'continuing supervision,' as the evidence supported the finding.

The appeal was dismissed.

This endorsement addresses the costs of a summary judgment motion where the defendant unsuccessfully argued the action was statute-barred.

The plaintiffs, having successfully resisted the motion, sought substantial indemnity costs.

The court awarded partial indemnity costs, finding that while the issues were factually complex, the defendant did not act unreasonably or in bad faith in bringing the motion.

The defendant, Dr. Mendel Robert Nadel, brought a motion for summary judgment to dismiss a medical negligence action as statute-barred.

The plaintiffs, Michelle Goodwin and her family, sued Dr. Nadel over a fourth-degree laceration sustained during childbirth in 2002, which was later discovered in 2011 to be the cause of her anal sphincter dysfunction and fecal incontinence.

The court dismissed the defendant's motion, finding that the limitation period began in early July 2011, when Ms. Goodwin received new medical test results that positively identified the cause of her symptoms, rather than at the time of delivery or an earlier consultation where a possible link was merely suggested.

The court held that the plaintiffs had successfully rebutted the presumption that they knew of the claim earlier, as the new medical information provided the material facts necessary to discover the cause of action.

The appellant appealed a decision of the Consent and Capacity Board finding her incapable of consenting to psychiatric treatment under the Health Care Consent Act, 1996.

The Board had rescinded a certificate of involuntary admission but upheld the physician’s finding that the appellant lacked capacity to consent to treatment due to inability to appreciate the reasonably foreseeable consequences of refusing antipsychotic medication.

Applying the reasonableness standard of review and the test for capacity under s. 4 of the Act, the court found the Board reasonably concluded the appellant’s delusional beliefs and disorganized thinking prevented her from performing a risk–benefit analysis regarding treatment.

The court rejected arguments that the Board equated mental illness with incapacity or failed to ensure the appellant had been informed about treatment options.

The appeal was dismissed.