Mark D. Lerner

In a medical malpractice claim where liability was admitted by Dr. Singh, the defendant brought a motion for updated documentary disclosure from the plaintiffs regarding damages.

The plaintiffs resisted, arguing the demands were excessive and disproportionate.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure, granting some production requests (e.g., updated OHIP summaries, tax returns, family doctor records, primary treating specialists) while denying others deemed unnecessary or marginally relevant (e.g., welfare records, non-primary psychological treatment records, sweeping hospital records, private activity records).

The court emphasized the need for cooperation, communication, and common sense in litigation, shifting the cost of obtaining ordered records to the defendant.

This endorsement addresses the costs of an unsuccessful motion brought by the plaintiffs to strike the defendants' jury notices.

The defendants were entirely successful in defending the motion and were presumptively entitled to costs under Rule 57.01.

The court considered the amount in dispute ($1,500,000), the importance of the issue (right to jury trial), and the moderate complexity of the motion.

The plaintiffs had rejected an offer to withdraw the motion without costs.

The court awarded partial indemnity costs to both sets of defendants, discounting the amounts to align with the costs outlines served prior to the motion and disallowing senior counsel's attendance for the doctor defendants as unnecessary.

The plaintiff moved for directions to pre-emptively dismiss or stay the defendant Dr. Shah's motion for summary judgment and to prevent cross-examination of the plaintiff's expert witnesses.

The plaintiff argued the case was complex, the defendant had no realistic prospect of success, and the process was burdensome and raised access to justice concerns.

The court dismissed the plaintiff's motion, finding that the summary judgment motion was not an abuse of process and that the defendant had the right to complete the evidentiary record, including cross-examining experts.

The court imposed terms to ensure the summary judgment motion proceeded as scheduled.

In a medical malpractice action concerning a child with significant disabilities, the plaintiffs sought partial summary judgment for future care costs, housing costs, and the OHIP subrogated claim, relying on the defendants' expert evidence.

Concurrently, the defendant Dr. Singh sought orders for further discovery, a further defence medical assessment, and production of the plaintiffs' expert's file.

The court dismissed the plaintiffs' motion for partial summary judgment, reasoning that it would not genuinely streamline the upcoming trial as the plaintiffs intended to present their own expert evidence on damages, thus requiring the defence experts to still be called.

The court granted the defendant Dr. Singh leave for further limited discovery and a further defence medical assessment due to changed circumstances and the need for trial fairness.

Additionally, the plaintiffs' expert was ordered to provide an affidavit detailing all relied-upon materials.

No costs were awarded for any of the motions.

The plaintiffs moved to strike jury notices filed by the defendants after the plaintiffs amended their Statement of Claim to double the damages sought from $750,000 to $1.5 million, prompted by new expert reports on future care costs.

The court applied the principles from Dow v. Ottawa Hospital-Civic Campus to determine if the amendment reopened pleadings for all purposes, including the timely filing of jury notices.

The court found that the amendments were necessary, implicitly contained new allegations regarding the plaintiff's limitations and future care needs, significantly changed the nature of the action, and necessitated further discoveries.

As the defendants filed the jury notices promptly and were not the party seeking the amendment, the court concluded that pleadings were reopened for all purposes, granting the defendants a statutory right to a jury trial.

The plaintiffs' motion to strike the jury notices was dismissed, as were their alternative requests for costs and further discoveries of the defendants.

Supplementary reasons addressing an outstanding refusal arising from an examination for discovery in a civil action involving a leased vehicle.

The disputed question asked how profit was calculated by the dealership on a leased vehicle.

The court held that while the exact profit earned by the dealership was not directly relevant, the method of calculating profit was relevant to issues concerning ownership, control of the vehicle, and the financial relationships among the dealer, financing company, and manufacturer.

Given the surrounding evidence about the assignment of the lease and payments made, the answer was necessary to understand prior discovery evidence and documents produced.

The witness was therefore required to answer the question regarding how profit is calculated.

The appellants appealed a trial judgment awarding damages arising from a fatal motor vehicle accident.

The appellants argued the trial judge erred in finding the respondent was the deceased's 'spouse' under the Family Law Act, as they had not 'moved in' together three years prior to the accident.

The Court of Appeal dismissed the appeal, holding that 'living together in a conjugal relationship' is a flexible, unitary concept and maintaining separate residences does not preclude a finding of cohabitation.

The court also upheld the trial judge's refusal to reduce damages for contingencies, as no evidence was led on that issue.