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.