Mark Anthony Veneziano

During a medical negligence jury trial involving the management of a twin pregnancy, the defendant obstetrician requested a jury instruction permitting an adverse inference against the plaintiffs for failing to call a treating physician from McMaster Hospital.

The court declined to give the instruction, applying the principle from Lambert v. Quinn that an adverse inference should not be drawn if the witness is equally available to both sides.

The court found the witness was compellable by the defendant and not peculiarly within the plaintiffs' power to produce.

During a medical malpractice jury trial, the plaintiffs challenged the impartiality of the defendant Dr. Jackiewicz's proposed expert witness, Dr. William Mundle.

The plaintiffs argued that Dr. Mundle's prior solicitor-client relationship with defense counsel and his history of testifying in favor of Dr. Jackiewicz compromised his impartiality.

The court, applying the principles from *White Burgess Langille Inman*, found that the prior solicitor-client relationship did not preclude Dr. Mundle's testimony.

While acknowledging concerns about Dr. Mundle's history of defending Dr. Jackiewicz, the court declined to preclude his testimony, limiting his evidence to causation and prohibiting questioning that would reveal Dr. Jackiewicz's disciplinary history due to the high risk of undue prejudice to the jury.

Limited cross-examination on the duration and nature of Dr. Mundle's professional or personal acquaintance with Dr. Jackiewicz was permitted.

In a medical negligence jury trial, the plaintiffs sought to introduce demonstrative aids (illustrations and charts) through their expert witness, Dr. Cecil Hahn, to explain complex medical concepts related to brain pathology, injury evolution, and statistical relationships between gestational age and neurodevelopmental outcomes.

The defendant, Dr. Allan Jackiewicz, opposed the use of these aids, arguing they were inaccurate, incomplete, unnecessary, and prejudicial.

The court, applying established legal principles for demonstrative aids, found them admissible with one minor excision to prevent misleading information, concluding that they would assist the jury in understanding complex expert evidence without being unduly prejudicial or constituting improper advocacy.

The plaintiffs brought a medical malpractice action against the defendant obstetrician, alleging that he negligently caused a permanent brachial plexus injury to the infant plaintiff during delivery.

The plaintiffs argued that the defendant applied excessive downward lateral traction and improperly directed supra-pubic pressure after encountering shoulder dystocia.

The court found that the defendant met the standard of care expected of an obstetrician in 2004, properly executing the required maneuvers to resolve the obstetrical emergency.

The court rejected the plaintiffs' argument that the mere presence of the injury inferred excessive traction, noting that medical literature and expert evidence established that such injuries can occur from endogenous forces or gentle traction.

The action was dismissed.

The Plaintiffs in a medical negligence action moved for leave to call four expert witnesses at trial, arguing that section 12 of the Ontario Evidence Act allowed for three experts per issue.

The court rejected this interpretation, holding that leave is required for more than three experts on all issues combined.

The motion for leave was denied, restricting the Plaintiffs to a total of three expert witnesses, citing factors such as the Defendant's objection, sufficiency of three experts for the core issues (standard of care and causation), the Defendant also calling three experts, lack of custom for more than three liability experts in medical malpractice, potential prejudice, and substantial duplication among the proposed experts.

The plaintiffs sought summary judgment against Stewart Title Guaranty Company for $223,555.74, alleging coverage under their title insurance policy due to structural defects in their home that violated the Ontario Building Code and rendered the property unmarketable.

The court found that while the property's title was unmarketable under Covered Title Risk (CTR) clause 19, coverage was excluded by exclusion clause 7, which pertained to structures not built in accordance with applicable building codes.

The court also found no coverage under CTR clause 20, as there was no evidence of a governmental authority forcing remedial work.

Consequently, the plaintiffs' motion for summary judgment against Stewart Title was dismissed.

The plaintiffs, property developers, brought a motion for leave to amend their statement of claim to add three new defendants and plead conspiracy and oppression regarding allegedly inflated billings for deficiency work.

The proposed defendants opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002.

The court granted the motion, finding the plaintiffs had exercised reasonable diligence in investigating the billing discrepancies and raised a triable issue regarding discoverability.

The court held that the proposed amendments disclosed a reasonable cause of action and would not cause undue prejudice.

The plaintiffs in two related actions brought motions for the production of information by the corporate defendants under the Business Corporations Act.

The parties settled the motions 'except for costs' and filed written costs submissions.

The plaintiffs sought substantial indemnity costs, arguing the motions were unnecessary as the defendants ultimately consented to the relief sought.

The court declined to award costs, holding that costs generally should not be awarded when parties settle 'except for costs.' The court reasoned that determining costs in such circumstances would require a hypothetical adjudication of the merits, which is an inefficient use of judicial resources and runs counter to the principle that costs are an incident of the determination of rights, not the subject matter of the dispute itself.

The applicant lender sought a declaration of coverage under a title insurance policy after a private mortgage transaction was discovered to be an identity fraud.

The respondent insurer denied coverage, relying on an exception that applied if mortgage proceeds were paid to anyone other than the registered titleholder.

The funds had been disbursed to the borrower's lawyer in trust.

The court held that the exception was ambiguous and did not clearly require direct payment to the titleholder.

Construing the ambiguity against the insurer, the court found the exception did not apply and declared that the policy provided coverage for the loss.

In a supplemental endorsement following a trial decision where the plaintiff was awarded $35,000 for delayed diagnosis but failed on claims of informed consent and surgical negligence, the plaintiff's counsel requested an assessment of damages had all claims succeeded.

The court assessed the hypothetical damages at $100,000 for pain and suffering, $100,000 for past loss of income, and $125,000 for future loss of income, plus the Ministry of Health subrogated claim and prejudgment interest.

Following a medical malpractice trial where the plaintiff was awarded $35,000 in damages for delayed diagnosis, the court determined the quantum of costs.

The parties agreed the plaintiff was entitled to partial indemnity costs for both the first and second trials.

The court noted the high cost of expert opinion evidence but declined to penalize the plaintiff for these expenses, particularly given the defendant's poor recordkeeping which complicated the case.

Costs were fixed at $210,000.

Competing summary judgment motions arose from acrimonious litigation following a lawyer's withdrawal from a Thunder Bay law firm and related management partnership.

The court held that summary judgment was inappropriate because multiple interrelated claims, including breach of trust, slander, defamation, and a separate substantial claim for work in progress and disbursements, would proceed regardless, creating risks of duplication and inconsistent findings.

In resolving factual matters relevant to case management, the court found the withdrawing partner did not actually leave the partnership until November 11, 2011, and that the associated family trust was required to withdraw from the management partnership on the same date.

Both summary judgment motions were dismissed and no costs were awarded.

Subsequent mortgagees challenged the validity of a first mortgagee’s power of sale of a Toronto property, alleging they were never served with the required notice and that the notice misstated the amount owing under the mortgage.

The court found the notice of sale had not been served on the subsequent encumbrancers due to a mailing error and that the amount claimed owing was materially overstated through the improper inclusion of pre‑assignment expenses.

As a result, the statutory requirements of the Mortgages Act were not satisfied and the power of sale was invalid.

The purchaser was a bona fide purchaser for value but had actual notice that the validity of the sale was being challenged and therefore could not rely on statutory protections for “professed compliance.” The purchaser and related subsequent mortgagees did not obtain valid title or charges as against the applicants, though the independent first mortgagee lender retained a valid interest.

The applicants, a group of mortgage investors, applied to appoint a receiver over the property of the respondent, a not-for-profit corporation operating a church and school, due to an outstanding loan balance of approximately $11.5 million.

The respondent had previously commenced an action against the applicants alleging conspiracy and seeking restitution.

The court dismissed the application, finding it was not just and convenient to appoint a receiver because the respondent raised triable issues, the property value greatly exceeded the debt, and a receivership would effectively end the ongoing litigation and negatively impact the church and school.

The defendant landlord moved for a mandatory interlocutory injunction to compel the plaintiff tenant to allow access to the leased premises for environmental testing related to redevelopment.

The landlord relied on a lease provision requiring the tenant not to hinder redevelopment.

The court dismissed the motion, finding that the lease provision did not grant the landlord a right of access, the landlord's case on the merits was weak, and there was insufficient evidence of irreparable harm.

On an appeal from an application judgment concerning deregistration of private corporation shares held in an RRSP, the court held that the application judge erred by deciding, on his own motion, that there was no legal basis for withholding tax.

That issue was not before the court below and was for the proper tax forum.

The court further held that the shareholder had not provided adequate documentation to permit the financial institution to determine the value of the shares for deregistration purposes.

The appeal was allowed, the order below was set aside, and the application was dismissed with costs.

Following reasons on the underlying application, the court determined the appropriate costs award.

Applying s. 131(1) of the Courts of Justice Act and the discretionary factors in Rule 57 of the Rules of Civil Procedure, the court emphasized the result of the proceeding, the reasonableness of the steps taken, and proportionality.

Although the respondent argued that the applicants’ legal fees were high relative to his own expenses, the court found the applicants’ partial indemnity bill of costs and disbursements generally reasonable.

Exercising its discretion, the court fixed partial indemnity legal fees at $65,000 plus HST and disbursements.

The respondent was ordered to pay total costs of $84,092.17.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.

The appellants appealed an order enforcing a settlement reflected in minutes of settlement.

They argued that a term requiring execution of a release satisfactory to all parties made the settlement conditional, ambiguous, and unenforceable.

The court rejected those submissions, holding that the motion judge found the parties had agreed to the form of release and that finding was not challenged.

The appeal was dismissed with agreed costs to the respondents.

The moving parties, two of several defendants, sought leave to appeal an interlocutory injunction restraining them from using confidential information and competing with the plaintiff.

The motions judge had found a strong prima facie case that the former president breached his fiduciary duty and that the moving parties were impressed with the same duty.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision and no conflicting decision that would warrant granting leave.