Peter G. Hagen

The defendants brought motions for leave to appeal an interlocutory decision that dismissed their Rule 21 motions to strike the plaintiffs' statement of claim.

The plaintiffs, including a former RCMP member, claimed damages for harassment, assault, and sexual assault.

The defendants argued the claims were barred by section 9 of the Crown Liability and Proceedings Act because the plaintiff received a pension for PTSD.

The court refused leave to appeal, finding no conflicting case law on the principles for striking pleadings and no good reason to doubt the motion judge's conclusion that it was not plain and obvious the entire claim was barred.

Following the dismissal of appeals and motions for leave to appeal regarding the appointment of a trustee for an inter vivos trust, the successful parties sought their costs.

The Court of Appeal determined that the normal loser-pays regime applied to the appeals, rather than costs being paid out of the estate, as the uncertainty regarding the trust's administration had been resolved by the application judge.

The court awarded partial indemnity costs to the successful beneficiaries and full indemnity costs to the trustee, payable jointly and severally by the appellants.

The Children's Lawyer and other appellants appealed a decision dismissing their application to appoint an independent trustee for an inter vivos spousal trust.

The appellants alleged that the respondents, who were directors of the corporation wholly owned by the trust, committed a breach of trust by declaring dividends in excess of net income.

The Court of Appeal dismissed the appeal, finding that the respondents' actions as directors were governed by the Business Corporations Act, not the trust agreement, and did not constitute a breach of trust.

The court also dismissed an application to admit fresh evidence and upheld the application judge's order that costs be paid out of the estate.

The plaintiff alleged medical negligence arising from a bilateral varicocelectomy performed to address infertility, after which he lost a testicle.

The court considered whether the physician failed to obtain informed consent, negligently performed the surgery, or breached the standard of care in post‑operative management.

The court found that the risk of losing a testicle was extremely remote and not a material risk requiring disclosure, and that a reasonable patient would have proceeded with the surgery even if informed of that possibility.

Expert evidence established that the surgical method used was an accepted practice within the profession and that the procedure was performed competently.

However, the court concluded that post‑operative care became negligent when the patient returned to hospital with significant pain and investigation was delayed.

The appellants appealed an order of Justice Cosgrove dated July 8, 2003, which made findings of contempt.

The Court of Appeal agreed with counsel that it was an appropriate case to allow the appeal and set aside the findings of contempt in accordance with a filed draft order.