Sloan Hilliard Mandel

The appellants (defendant doctors) appealed a trial judgment finding them liable for failing to obtain informed consent for a multi-step medical treatment plan that resulted in catastrophic brain injury to the plaintiff.

The appeal addressed the nature and extent of a physician's duty to obtain informed consent, on which physicians this duty rests, sufficiency of reasons, evidentiary issues (including expert witness exclusion), and costs.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that all three appellant doctors failed to provide adequate disclosure regarding the cumulative risks of the treatment plan, and that the plaintiff would not have proceeded had he been properly informed.

Leave to appeal costs was refused.

The plaintiffs sought costs following a successful 25-day medical malpractice trial where they "beat" a Rule 49 offer.

The defendants proposed a lower costs amount.

The court awarded the plaintiffs $3 million in costs, finding their request consistent with similar complex medical malpractice cases and justified by the defendants' conduct, which unnecessarily lengthened the proceeding and increased the plaintiffs' legal work.

The court considered factors under Rule 57.01, including the complexity of the case, the plaintiffs' complete success, and the defendants' late disclosure and attempts to introduce contradictory evidence.

The plaintiff suffered a catastrophic brain bleed and traumatic brain injury during an elective multi-step medical intervention for an asymptomatic brain AVM.

The plaintiff brought a medical negligence action against the treating physicians, alleging a failure to obtain informed consent.

The Superior Court of Justice found that the physicians failed to adequately disclose the cumulative risks of the multi-step procedure, the likelihood of requiring surgical resection, and the risks of conservative management.

The court concluded that a reasonable person in the plaintiff's position would not have proceeded with the intervention had they been properly informed, and held the physicians liable for the plaintiff's injuries.

The plaintiffs in a medical malpractice action brought a motion to exclude the defendants' expert witness, a vascular neurosurgeon and interventional neuroradiologist, on the basis of bias.

The court conducted a voir dire and reviewed the expert's reports, past testimony, and relationship with the defendant physicians.

The court found that the expert was not impartial, acted as an advocate, failed to disclose his professional and personal relationship with one of the defendants, and assumed the defendants' evidence was credible while ignoring the plaintiffs' evidence.

The court concluded that the expert was unable and unwilling to comply with his duty to the court and excluded his evidence in its entirety.

The plaintiffs brought a motion in writing to compel the defendants to produce documentation obtained from non-parties pursuant to a prior court order.

The defendants responded that they had not yet received any documents from the non-parties and agreed to provide them to the plaintiffs in due course once received.

The court dismissed the plaintiffs' motion as premature, without prejudice to their right to bring it back if the defendants fail to produce the documents after receiving them.

The defendants in a motor vehicle accident action brought a motion under Rules 30.10 and 31.10 for production of documents and examination for discovery from certain non-party corporations and individuals.

The information sought related to the deceased plaintiff's past and future dependency loss claims, which exceeded $5,000,000.

The court granted the request for production of specific financial and corporate documents from the non-party entities, finding it necessary to avoid trial unfairness given the plaintiffs' reliance on this information for their expert report.

However, the motion for leave to examine the non-party individuals was dismissed as premature, with leave to renew if the produced documents proved insufficient.

This decision addresses the quantum of costs payable to the plaintiffs following the settlement of a motor vehicle accident action.

The court considered the principles of fair and reasonable costs under Rule 57.01(1) of the Rules of Civil Procedure, emphasizing proportionality and the defendants' failure to engage in mandatory mediation under the Insurance Act.

Despite the plaintiffs abandoning claims for substantial or augmented costs, the court found the partial indemnity costs sought by the plaintiffs to be fair, reasonable, and proportionate, considering the complexity and length of the litigation, and the defendants' conduct in prolonging the process.

The plaintiffs brought pre-trial motions in a personal injury action arising from a bicycle-motor vehicle collision involving an eight-year-old.

The plaintiffs sought to reverse the order of presentation at trial due to the defendant's reverse onus under the Highway Traffic Act, a declaration that the minor could not be found contributorily negligent, a presumption that healthcare expenses paid by the accident benefits insurer were caused by the accident, and leave to amend the statement of claim to increase damages.

The court declined to alter the order of presentation or rule out contributory negligence at this stage.

The court also refused to presume causation for the accident benefits, requiring the plaintiffs to prove their damages on a gross basis.

However, the court granted leave to amend the statement of claim to increase the damages claimed to $22 million.

The appellant, Randolph Burns, appealed a motion judge's order striking out his statement of claim against two corporate employees (Lauren McLean and Anna Oslizlok) without leave to amend, and granting RBC Life's request for a discovery order.

The appeal concerned the adequacy of claims pleaded against corporate employees for torts allegedly committed in the course of their employment.

The Court of Appeal found that the motion judge correctly determined that the statement of claim failed to plead specific material facts to support individualized claims against the employees, but erred in denying leave to amend.

The appeal was allowed in part, granting Mr. Burns leave to amend his statement of claim.

The applicant, who sustained catastrophic impairments in a motor vehicle accident, brought a motion for an interim payment of $427,751 for home modifications.

The insurer had requested a section 44 examination involving both a housing expert and an occupational therapist to assess the claim.

The applicant consented to the housing expert but refused to attend an examination involving the occupational therapist.

The arbitrator dismissed the motion, finding that the insurer's request for an occupational therapist assessment was reasonable and necessary to evaluate the applicant's functional requirements.

Because the applicant failed to attend the section 44 examination, he was in breach of the Schedule, making an award of interim benefits inappropriate.

Following a jury verdict awarding the plaintiff $1,837,500 for injuries sustained in a motor vehicle accident, the court determined whether the defendants could deduct a prior $1,423,323.49 Statutory Accident Benefits (SABs) settlement from the tort award.

The court found that the defendants met their burden to show subject matter and temporal matching between the SABs settlement and the jury's awards for future medical/rehabilitation and attendant care needs.

However, the court held that the deductible SABs amounts must be reduced by the legal fees incurred by the plaintiff to obtain the SABs settlement, as well as certain quantifiable expenses incurred after the settlement.

Following a jury verdict awarding the plaintiff $1,837,500 for injuries sustained in a motor vehicle accident, the defendants sought to deduct Statutory Accident Benefits (SABs) previously settled by the plaintiff.

The court held that the defendants met the strict burden of proving subject-matter and temporal matching between the jury's future care awards and the SABs settlement categories.

However, the court ruled that the deductible SABs amounts must be reduced by a pro-rata share of the legal fees the plaintiff incurred to obtain the SABs settlement, preventing the tortfeasors from unfairly benefiting from the plaintiff's expense.

The applicant, who was injured in a motor vehicle accident, sought production of the insurer's entire claims file, including internal activity logs and correspondence created after the application for mediation.

The insurer claimed litigation and solicitor-client privilege over certain documents.

The arbitrator dismissed the motion for production, applying the presumption that documents created after the application for mediation are for the dominant purpose of litigation.

The arbitrator found that the applicant's claim for a special award did not override the insurer's claims of privilege.

The appellant Province appealed a trial judgment finding it 70% liable for a motor vehicle accident that rendered the respondent a quadriplegic.

The trial judge found the Province's subcontractor failed to sand the icy highway.

The Province appealed on grounds of liability, apportionment, excessive judicial intervention destroying impartiality, and the award of a $50,000 costs premium.

The Court of Appeal dismissed the appeal on liability, apportionment, and judicial intervention, finding the trial judge's interventions did not amount to reversible error.

However, the Court allowed the appeal regarding the costs premium, finding the circumstances were not so exceptional as to warrant a premium.

The Motor Vehicle Accident Claims Fund (MVAC) appealed an arbitration order requiring it to pay various expenses for R.W., who suffered a severe brain injury in a motorcycle accident and resided in a supportive group home.

The Director's Delegate upheld the arbitrator's findings that R.W.'s rent, mandatory program fees, and transportation costs were reasonable and necessary care and rehabilitation expenses under the Statutory Accident Benefits Schedule.

The Delegate reversed the award for personal care items and confectionary due to a lack of medical evidence.

The special award against MVAC for unreasonably refusing to pay the core expenses was upheld.