Russell J. Howe

This decision addresses motions for summary judgment in three related product liability actions concerning polypropylene mesh used in hernia repair surgeries.

The plaintiffs, having suffered complications and undergone further surgeries, sued the manufacturer years after the expiry of the basic two-year limitation period.

The court found that the plaintiffs failed to demonstrate that their claims were not reasonably discoverable within the limitation period, emphasizing the requirement of reasonable diligence and the inability to rely on a "eureka moment" or the discovery of a law firm's list to toll the limitation period.

All three actions were dismissed as statute-barred.

The plaintiff, Sarah Salisbury, sued Dr. Stephen Kraft for medical negligence, specifically alleging a lack of informed consent for a strabismus surgery that resulted in permanent double vision (diplopia).

Dr. Kraft moved for summary judgment, arguing that the plaintiff could not satisfy the modified objective test for causation or establish a breach of his disclosure obligations.

The court, applying Rule 20.04 of the Rules of Civil Procedure, found that a reasonable person in the plaintiff's position would have opted for the surgery given the limited alternatives and her prior positive experience with the same procedure.

The court also found the plaintiff's evidence regarding the alleged lack of disclosure unreliable when weighed against Dr. Kraft's contemporaneous notes and invariable professional practice.

The motion for summary judgment was granted, and the plaintiff's claim was dismissed.

The defendant radiologist moved for summary judgment dismissing the medical malpractice claim against him, arguing the plaintiffs failed to tender expert opinion evidence on causation.

The plaintiffs cross-moved for leave to admit late-served expert reports from a gastroenterologist and a radiologist.

The court granted the plaintiffs leave to admit the late reports, finding that their exclusion could cause a miscarriage of justice and the defendants would not suffer undue prejudice given the trial's adjournment.

Relying on the newly admitted expert evidence regarding standard of care and breach, the court dismissed the defendant's summary judgment motion, concluding that a genuine issue requiring a trial existed and that an inference of causation might be drawn at trial.

The issue of costs thrown away due to the trial's adjournment was reserved to the trial judge.

The defendants brought a motion for an order requiring the plaintiff to attend a defence assessment with an occupational therapist.

The court noted a jurisdictional issue regarding whether a master has the inherent jurisdiction to order an examination by a non-health practitioner, but proceeded to hear the motion based on prior authority.

Applying the test from Ziebenhaus, the court found that the defendants already had a clear and unequivocal report from a physiatrist stating the plaintiff's injuries did not impact her ability to work or carry out normal activities.

The court concluded the requested assessment was merely to corroborate the existing report or obtain a matching report, which was insufficient.

The motion was dismissed.

The respondent sought weekly benefits from the appellant insurer pursuant to the Statutory Accident Benefits Schedule 1990.

The insurer terminated benefits, and the respondent sued for past and ongoing benefits, including interest on overdue amounts under s. 24(4).

The insurer brought a motion to determine whether s. 24(4) provides for simple or compound interest.

The motion judge found it provides for compound interest, and the insurer appealed.

The Court of Appeal dismissed the appeal, holding that s. 24(4) unambiguously provides for compound interest when read in its entire context and harmoniously with the legislative scheme.

The defendant insurer brought a motion for the determination of a question of law prior to trial regarding whether the plaintiff was entitled to simple or compound interest on arrears of weekly income benefits under s. 24(4) of the Statutory Accident Benefits Schedule (OMPP legislation).

Applying the modern principle of statutory interpretation and reviewing legislative history, including the Kruger Report, the court found that the legislature intended to impose a penalty on insurers for late payments.

The court concluded that interest payable under s. 24(4) is compound interest.

The Estate of Mark Green applied for arbitration claiming income replacement benefits following a motor vehicle accident.

Shortly before the hearing, the Estate requested to withdraw its application, citing economic non-viability.

The insurer opposed withdrawal without conditions, arguing the application was frivolous and an abuse of process because the Estate never provided basic documentation to support the claim and the deceased was not employed at the time of the accident.

The Arbitrator allowed the withdrawal but ordered the Estate to pay the insurer's $3,000 assessment fee and reasonable legal expenses, finding the application was devoid of merit when commenced and constituted an abuse of process.

The applicant was injured in a motor vehicle accident and claimed income replacement benefits for his employment as a bus driver and for a separate arrangement where he provided landscaping services in exchange for free accommodation.

The insurer terminated benefits, arguing the applicant was not substantially disabled from his bus driver position and that the landscaping arrangement did not constitute employment.

The arbitrator found that the applicant suffered a substantial inability to perform the essential tasks of both jobs due to his back impairment and reduced tolerance for prolonged sitting.

The arbitrator also held that the barter arrangement for accommodation constituted employment under the Schedule.

The applicant was awarded income replacement benefits for both employments, subject to deductions for collateral benefits and post-accident income, as well as his arbitration expenses.

The appellant appealed an arbitrator's decision denying his claim for income replacement benefits under the Statutory Accident Benefits Schedule.

The appellant claimed he had a legitimate contract of employment as a sales representative before the accident.

The Director's Delegate upheld the arbitrator's finding that the evidence did not establish a genuine employment contract, dismissing the income replacement claim.

However, the appeal was allowed in part to award the appellant the full $1,670 cost of a psycho-vocational assessment, finding it was a reasonable expense recommended by his treating doctors.

The insurer's cross-appeal for repayment of benefits was dismissed.

The applicant was injured in two motor vehicle accidents and claimed income replacement benefits based on an alleged written contract of employment as a sales representative, which he claimed was signed before the first accident.

The insurer terminated benefits, arguing the contract was not legitimate.

The arbitrator found that the alleged contract did not represent the true relationship between the parties, concluding the applicant was likely a subcontractor working on strict commission rather than a salaried employee.

Consequently, the claim for income replacement benefits under paragraph 7(1)3 of the Statutory Accident Benefits Schedule was dismissed.

The arbitrator also reduced a claim for a $1,670 psychovocational assessment to $400, finding the full amount unreasonable.