Marc J. Somerville

The respondent patient suffered a bowel obstruction caused by a volvulus, resulting in the loss of five feet of her small intestine.

The trial judge found the appellant surgeon breached the standard of care by delaying surgery and that this delay caused the loss of the bowel.

On appeal, the Court of Appeal upheld the finding of a breach of the standard of care but allowed the appeal on causation.

The Court found there was no medical or other evidentiary basis to conclude that, but for the delay in operating, the section of the bowel would likely have been saved.

The judgment was set aside and the claim dismissed.

The appellants appealed a Master's order granting summary judgment and dismissing their medical malpractice action.

The action arose from the death of the appellant's wife following delayed surgical intervention for a ruptured aortic valve.

The Divisional Court upheld the Master's decision, finding that while the appellants presented some expert evidence of a lost chance of survival, they failed to provide evidence establishing on a balance of probabilities that the death would have been avoided with prompt surgery.

The appeal was dismissed.

The Court of Appeal determined the costs of an appeal and cross-appeal.

Although success was divided, the respondent achieved much greater success by successfully defending against the main appeal on liability and succeeding on the cross-appeal.

The court fixed the respondent's costs at $40,000, inclusive of GST and disbursements, noting the complexity of the matter and the lengthy record.

The appellants, physicians found liable for medical malpractice for failing to diagnose the respondent's acromegaly, appealed the trial judge's awards for future income loss, future medication costs, and a $150,000 costs premium.

The Court of Appeal dismissed the appeal regarding damages, finding the trial judge reasonably relied on lay evidence and medical reports to establish future income loss, and correctly held the tortfeasors responsible for medication costs despite government program coverage.

The respondent's cross-appeal to apply the Rule 53.09 discount rate to future medication costs was allowed.

The Court also reduced the costs premium to $75,000, finding the trial judge erred by penalizing the appellants for their insurer's settlement policy, though a premium was still justified by the risk assumed and result achieved by the respondent's counsel.

The respondent sued the appellant doctor for negligently administering a spinal anaesthetic, which she alleged caused sensory loss and pain in her buttock and right thigh.

A jury found the appellant liable.

The appellant appealed the finding of liability, arguing that there was insufficient evidence of causation, that the trial judge's charge to the jury was defective, and that the trial judge erred in answering a jury question.

The Court of Appeal dismissed the appeal, finding that there was sufficient evidence to support the jury's verdict on causation, the jury charge was adequate and did not cause a miscarriage of justice, and the trial judge properly answered the jury's question.

The parties agreed on the costs of the appeal and the motion for leave to appeal.

The Court of Appeal fixed the costs in the amount of $15,000, inclusive of disbursements and GST, to be paid by the appellant to the respondent.

The appellant sought to certify a class proceeding against a life insurance company, alleging negligent misrepresentation in the marketing of whole life policies with a 'vanishing premium' or premium offset feature.

The motion judge and Divisional Court refused certification.

The Court of Appeal dismissed the appeal, finding that the claims relied heavily on individual representations made by agents and individual reliance, meaning the action would ultimately break down into individual proceedings.

The common issues and preferable procedure requirements under section 5 of the Class Proceedings Act were not met.

The appellants appealed the dismissal of their motions to certify their actions as class proceedings against life insurance companies regarding the sale of 'premium offset' or 'vanishing premium' policies.

The Divisional Court upheld the motions judges' decisions, finding that the claims were intrinsically individualistic, based on individual representations by agents, and lacked common issues necessary for class certification.

The appeals were dismissed.

The appellant school board expropriated a portion of the respondents' land for a school site.

The respondents sought compensation for the market value of the land and for lost developer's profit as disturbance damages.

The Ontario Municipal Board awarded market value but denied the claim for lost developer's profit.

The Divisional Court reversed, awarding the lost profit as disturbance damages.

The Court of Appeal allowed the school board's appeal, holding that lost prospective developer's profit is not compensable as disturbance damages under the Expropriations Act, and restored the OMB's award.

The appellant land developers appealed a decision of the Ontario Municipal Board refusing to award disturbance damages for lost developer's profit following the expropriation of a parcel of land by the respondent school board.

The Divisional Court allowed the appeal, applying the Supreme Court of Canada's decision in Dell Holdings to find that disturbance damages are not limited to the expropriated lands and can include the natural and reasonable consequences of the expropriation, such as lost profit on a subdivision development that was virtually complete.

The court awarded the agreed quantum of $437,000 in disturbance damages and dismissed the respondent's cross-appeal.

The appellant physician appealed the refusal to replace the future care and gross-up components of a personal injury judgment with periodic payments under s. 116 of the Courts of Justice Act.

The Court of Appeal held that where a plaintiff seeks gross-up, periodic payments are presumptively required unless the plaintiff shows they are not in the plaintiff's best interests, having regard to all the circumstances.

The trial judge properly treated the inquiry globally, accepted that the plaintiff's financial plan need not be confined to future care spending, and was entitled to consider the lack of a guarantee period, the structure's inflexibility, and concerns about prosthetic innovation and medical-cost inflation.

The appeal was dismissed with costs.

The appellants appealed a libel judgment arising from a press conference at which counsel publicly read and commented on contempt allegations against a Crown attorney that were later found to be untrue.

The Court held that the private defamation action did not constitute government action under s. 32 of the Charter, but confirmed that the common law must nonetheless develop consistently with Charter values.

The Court declined to adopt the American actual malice rule, holding that Canadian defamation law appropriately balances freedom of expression with the protection of reputation.

It further held that any qualified privilege attached to the occasion was defeated by the excessive, careless, and high‑handed dissemination of serious allegations.

The jury's awards of $300,000 general damages, $500,000 aggravated damages, and $800,000 punitive damages were upheld.

The applicant union referred a grievance to arbitration under section 124 of the Labour Relations Act, alleging that Ontario Hydro violated the collective agreement by contracting with 3-L Filters Limited for the supply of equipment. 3-L Filters Limited sought standing to intervene in the arbitration proceedings, arguing that its commercial interests and proprietary rights would be directly affected if the union succeeded.

The Ontario Labour Relations Board dismissed the application for standing, holding that a third party not bound by the collective agreement is not entitled to intervene as of right, and that the Board's discretion to permit intervention should only be exercised where special labour relations circumstances exist, which were not present in this case.

The applicant union sought certification to represent employees of the related respondent employers.

During the organizing drive, management held meetings with employees where they strongly expressed anti-union sentiments, suggested forming an employee committee instead, and reminded employees of the terminal date to file opposition.

Following these meetings, an employee circulated a petition (statement of desire) opposing the union.

The Board found that management's statements exceeded the bounds of permissible free speech and constituted undue influence, thereby tainting the voluntariness of the subsequent petition.

As the union demonstrated sufficient membership support, the Board granted interim certification pending the resolution of the status of three specific employees.

The applicant trade union applied for certification to represent unrepresented trades employed by the respondent in Board Area #5.

The respondent requested that casual employees who regularly work outside the area be excluded from the bargaining unit.

The Board declined to depart from its long-standing practice of not distinguishing between casual and regular employees in the construction industry.

Finding that more than fifty-five percent of the employees in the appropriate bargaining unit were members of the applicant, the Board ordered that a certificate issue.