Ljiljana Stanic

The defendant's anti-SLAPP motion to dismiss the plaintiffs' defamation action was unsuccessful.

This decision addresses the plaintiffs' request for costs.

Despite a statutory presumption against costs for unsuccessful anti-SLAPP motions under s. 137.1(8) of the Courts of Justice Act, the court exercised its discretion to award partial indemnity costs to the plaintiffs.

The court found that the original lawsuit did not exhibit the characteristics of strategic litigation against public participation (SLAPP) and the impugned expression was not public interest speech.

Considering factors under Rule 57.01 of the Rules of Civil Procedure, including the complexity and importance of the issues, the court awarded $10,000 in costs to the plaintiffs, reducing the amount claimed due to concerns about the hours spent and the number of lawyers involved.

The Toronto-Dominion Bank (TD) sought court direction regarding whether Caroline Witoszkin, the Estate Trustee and sole residual beneficiary of Judith Jenkins' 2022 Will, had a fiduciary duty to notify beneficiaries named in Judith's prior 2008 Will.

TD argued for notice due to the unique circumstances, including Witoszkin's former professional relationship with Jenkins and alleged suspicious circumstances.

Witoszkin opposed, asserting no such duty.

The court dismissed TD's application, finding that the Estate Trustee of the current Will has no fiduciary obligation to beneficiaries of a prior Will, especially where the testator's intentions were clear and the solicitor confirmed no undue influence.

The plaintiffs successfully defended a motion by the defendant to amend the certified class definition.

The plaintiffs sought partial indemnity costs of $88,296.33.

The defendant argued the amount was too high and suggested $45,000 payable in the cause.

The court found the plaintiffs' costs request slightly excessive due to unwarranted allegations of abuse of process, which unnecessarily protracted the matter.

The court reduced the requested amount by approximately 20% and awarded the plaintiffs $65,000 in costs, payable within 30 days.

The Defendant, Bell Mobility Inc., brought a motion to amend the certified class definition in a class action, seeking either to exclude business customers or to compel the addition of a new sub-class with a separate representative plaintiff.

The Defendant argued that business customers might be statute-barred or had distinct interests requiring separate representation.

The court dismissed the motion, finding that the limitation issue was not ripe for determination on a class-wide basis as it required individualized discoverability analysis.

The court also declined to create a new sub-class, emphasizing judicial economy and the principle against "litigation in installments" given the advanced stage of the proceedings.

The plaintiff and several defendants brought cross-motions to compel answers to undertakings, questions taken under advisement, and refusals from examinations for discovery.

The underlying action involves allegations by the plaintiff that the defendants engaged in a plan to cause financial harm and confer unlawful benefits upon their departure from the organization.

The court applied principles of relevance and proportionality, ordering the parties to answer certain questions and fulfill specific undertakings while upholding refusals for questions that were irrelevant, disproportionate, or improper.

The Estate of Helen Martindale brought a medical malpractice action against two emergency room physicians, Dr. Lee and Dr. Chiu, alleging negligence in their diagnosis and treatment of Helen Martindale's perianal pain, which was later diagnosed as anal cancer requiring an ileostomy.

The plaintiff contended that the doctors breached the standard of care by failing to properly diagnose, investigate, and provide adequate follow-up.

The court found that both Dr. Lee and Dr. Chiu met the applicable standard of care, concluding that their assessments and treatment plans were reasonable given the patient's presentation and the circumstances at a community hospital.

The court also found the plaintiff's evidence unreliable regarding follow-up instructions and determined that no imaging was medically necessary at the time of the initial emergency room visits.

As no breach of the standard of care was found, the issue of causation was not determined, but the court noted that the plaintiff failed to prove that any alleged breach caused the need for an ileostomy.

The action was dismissed.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The defendants brought a motion at the commencement of trial to exclude a late-served expert radiology report from the plaintiff.

The plaintiff argued the report was necessary for a fair determination on the merits, as it analyzed actual CT images rather than relying on previous radiology reports.

The court found the evidence relevant, probative, and necessary.

The court granted leave to admit the late-served report and adjourned the trial to allow the defendants to obtain a responding radiologist's report.

The appellant, a former lawyer whose license was revoked, appealed a motion judge's decision to dismiss his action against 11 of 16 defendants under Rule 2.1 as frivolous, vexatious, or an abuse of process.

The Court of Appeal upheld the dismissal against the Law Society Tribunal and Legal Aid Ontario, finding the claims abusive due to outstanding appeals and multiplicity of proceedings.

However, the Court allowed the appeal in part, reinstating claims against Doctor Michael Colleton and the Hamilton Police Service, ruling that these claims were not "clearest of cases" for Rule 2.1 dismissal and involved complex legal issues (e.g., absolute privilege, negligent investigation) better suited for a Rule 21 motion.

The plaintiffs brought a medical malpractice action against several physicians and a hospital following the plaintiff's development of compartment syndrome after hand surgery.

The plaintiffs brought a motion to amend their Statement of Claim to substitute the name of one anesthesiologist for another, claiming misnomer.

The proposed defendant anesthesiologist brought a summary judgment motion to dismiss the separate action against him as statute-barred.

The court dismissed the misnomer motion, finding the plaintiffs made a strategic decision rather than a true naming error.

The court granted the summary judgment motion, finding the plaintiff knew or ought to have known the material facts to discover her claim against the anesthesiologist more than two years before commencing the action.

The appellants appealed a jury verdict dismissing their medical negligence action arising from delayed diagnosis and treatment of an anastomotic leak following routine bowel surgery, which resulted in septic shock and bilateral below-knee amputations.

The jury found five defendants breached the standard of care but that none of the breaches caused the injuries.

The Court of Appeal addressed the proper causation test in delayed diagnosis cases involving multiple tortfeasors, finding that the trial judge's use of the word "necessary" from Clements in jury questions and instructions was problematic and that the phrase "caused or contributed to" should not have been rejected.

However, the court held that the jury clearly accepted the defence theory that a rare necrotizing infection, not the delay, caused the injuries, and no reformulation of questions or instructions would have changed the verdict.

Following the dismissal of the plaintiff's action for delay, the defendants sought costs of the action and motions on a partial indemnity scale.

The defendants also sought an order that the plaintiff's non-party principal be jointly and severally liable for the costs, as the plaintiff corporation was impecunious.

The court awarded costs against the plaintiff corporation but declined to order non-party costs against the principal, finding no evidence of fraud, gross misconduct, or abuse of process that would justify such an exceptional remedy.

A proposed class action brought by injured workers who were denied full non-economic loss benefits under the Workplace Safety and Insurance Act on the basis of asymptomatic pre-existing conditions.

The plaintiff alleged that the denials resulted from an internal policy illegally adopted to save money.

The action was pleaded in misfeasance in public office, bad faith, and negligence.

The motion judge struck the statement of claim as disclosing no cause of action, finding the claims fell within the privative clause.

The Court of Appeal allowed the appeal, holding that the misfeasance in public office and negligence claims were properly pleaded and not plainly barred by the privative clause.

Bad faith was found not to be a free-standing cause of action but rather an element of misfeasance in public office.