Matthew Peter Sammon

A medical malpractice action arising from the failure of three emergency physicians to diagnose previable, prelabour, preterm rupture of membranes (pPPROM) at 17 weeks gestation and to refer the plaintiff to an obstetrician.

The plaintiff presented to three different emergency departments over four days with a "gush of fluid" and other symptoms consistent with ruptured membranes.

All three physicians diagnosed threatened miscarriage or second trimester bleeding instead.

The failure to diagnose and refer resulted in a delay of approximately one day before the plaintiff reached a tertiary hospital.

During that delay, the plaintiff developed septic shock, leading to amputation of her left leg below the knee, partial amputation of her right foot, kidney failure requiring transplant, stroke, compromised right arm function, and seizures.

The trial judge found that all three defendants breached the standard of care by failing to diagnose the rupture of membranes and failing to immediately refer to an obstetrician.

However, only the first defendant (Dr. Cavanagh) was found liable for damages, as the evidence established that if the plaintiff had been referred on May 4, she would have been seen by an obstetrician, counselled regarding the grave risks, and would have elected to terminate the pregnancy.

Antibiotics and termination by May 5 would have prevented the septic shock and resulting injuries.

The subsequent physicians' breaches occurred too late to prevent the harm.

The court considered a motion by the defendants for production of video and audio recordings from the plaintiffs’ in-home camera system in a medical malpractice action.

The court found that while such recordings may be relevant to the issues in dispute, the plaintiffs’ privacy interests in their home are paramount and outweigh the need for production.

The motion for production was dismissed.

The plaintiff, having partially succeeded in her wrongful dismissal action, sought costs.

The defendant argued its earlier offer to settle engaged Rule 49.10, entitling it to costs from the offer date.

The court found the defendant's offer did not trigger Rule 49.10 due to an uncertain release condition, following D'Anscenzo v. Nichols.

Despite divided success, the plaintiff was deemed the successful party.

However, due to significant divided success (failure to prove damages for loss of book of business) and the plaintiff's rejection of a near-mirror offer, her costs were significantly reduced.

The court awarded the plaintiff 30% of her partial indemnity costs, totaling $72,000.00.

The applicant, a residual beneficiary of an estate, brought an application against the estate trustees (respondents) alleging mismanagement.

The claims included undue delay in selling the estate house, improper handling of a joint bank account, misdirection of life insurance proceeds, and premature taking of executor compensation.

The court dismissed the applicant's claims regarding occupation rent, the joint bank account, and the life insurance proceeds, finding insufficient evidence for the rent claim, no specific impropriety with the bank account, and that the presumption of resulting trust for the life insurance was rebutted.

While noting the irregular prepayment of executor compensation, the court directed the respondents to formally pass accounts to determine the proper amount.

The Respondent father sought orders for additional summer parenting time, delivery of a canoe, Annika's iPhone password, and adjustment of child support payments.

The court dismissed the requests for expanded parenting time and travel, emphasizing the children's best interests and the principle against varying interim orders without a substantial change in circumstances.

The child support issue was resolved by consent, reducing the father's payments.

The canoe and password issues were also resolved by agreement.

The court noted the extensive litigation history and urged the parties to proceed to trial.

The respondent/moving party, Mr. Godin, brought an interim motion to terminate spousal support payable to the applicant/responding party, Ms. Vesters.

Ms. Vesters argued that the issues required a full hearing and could not be determined solely on a written record.

The court dismissed the interim motion, finding insufficient evidence to determine the appropriate relief, particularly regarding Mr. Godin's retirement, Ms. Vesters' earning capacity, and the valuation of pensions to address "double-dipping" concerns.

A full hearing was deemed necessary.

This endorsement addresses the quantum of costs following a successful application by Costco Wholesale Corporation to enforce arbitral awards and a U.S. judgment on costs against TicketOps Corporation.

Costco sought $65,000 on a partial indemnity basis, while TicketOps proposed $50,000 plus HST.

The court, considering factors under Rule 57.01, found that while the time spent by Costco's counsel was not disputed, the hourly rates of some junior lawyers were higher than reasonably expected.

The court awarded Costco $60,000 on a partial indemnity basis, deeming it a fair and reasonable amount within the parties' reasonable expectations.

This is a costs endorsement following a successful motion by the Respondent to increase parenting time.

The Respondent sought substantial indemnity costs of $9,000, alleging unreasonable behaviour by the Applicant in refusing to negotiate and ignoring communications.

The Applicant argued the docketed time was excessive and that a punitive costs order was unwarranted, proposing $3,312 plus HST.

The court found that punitive costs were not appropriate as the conduct was not egregious and Rule 18 did not apply.

The court awarded the Respondent $4,000 plus HST in partial indemnity costs, finding the total time spent by the Respondent was higher than reasonably anticipated by the Applicant.

This is a costs endorsement from the Court of Appeal for Ontario, following an appeal where the lower court's judgment and costs order were set aside and the application remitted for rehearing.

The parties were unable to agree on the disposition of the original application costs.

The Court of Appeal determined that the fairest approach was to leave the issue of the application costs to the trier of fact on the rehearing, whether before a Superior Court judge or in an arbitral process.

Appeal costs had previously been awarded to the appellants.

This is an appeal concerning the interpretation of a complex project agreement for the Eglinton Crosstown LRT in the context of the COVID-19 pandemic.

The application judge had found that a specific contractual provision (s. 62.1(c)) requiring a "Variation Enquiry" was triggered by an internal email from the Crown agencies to their own staff, which was never sent to the consortium.

The Court of Appeal found that the application judge made a palpable and overriding error in concluding that this internal email constituted notification to the consortium.

The appeal was allowed, the original judgment set aside, and the application remitted to the Superior Court for a rehearing to consider other arguments, including good faith and the indivisibility of the Crown, which the application judge had not addressed.

Guaranteed Funeral Deposits of Canada (Fraternal) applied to enforce its interpretation of an amending agreement with Assurant Life of Canada.

Assurant cross-applied for rescission of the agreement, alleging misrepresentation.

The court found that Guaranteed misled Assurant by misstating facts regarding the omission of a clause from the 2012 agreement, whether innocently or deliberately.

Assurant relied on this misrepresentation, which was material.

The court granted Assurant's cross-application for rescission, declaring the amending agreement void, and dismissed Guaranteed's application.

The appellant, an employee, appealed a motion judge's order striking parts of his statement of claim in a wrongful dismissal action, which included claims against corporate directors for unpaid vacation pay under the Employment Standards Act, 2000 (ESA) and the Business Corporations Act (OBCA), and for oppression under the OBCA.

The Court of Appeal upheld the striking of the ESA claim without leave to amend, finding the statutory preconditions were not met.

It also upheld the striking of the OBCA oppression claim with leave to amend, noting insufficient pleading of reasonable expectations.

However, the Court set aside the striking of the OBCA s. 131 claim for unpaid vacation pay without leave to amend, finding material facts were pleaded, and allowed it to proceed with amendment.

It also set aside the striking of certain paragraphs (14-23) related to the reprisal claim and varied the striking of paragraph 40, only removing irrelevant allegations.

The original costs award against the appellant was reduced to reflect his partial success on appeal.

The respondent father brought a motion to change the custody provisions of a 2013 final order and requested a section 30 assessment under the Children's Law Reform Act.

The applicant mother opposed, arguing no material change in circumstances, bad faith, and parental manipulation.

The court dismissed the motion for an assessment, emphasizing the long-standing status quo of primary parenting by the mother, previous consent orders, and concerns about the father's manipulation, concluding that an assessment was not warranted.

The College of Physicians and Surgeons brought a motion to settle an order flowing from previous reasons for judgment and to vary its terms due to the COVID-19 pandemic.

The motion addressed the wording of the order regarding the handling of Patient A's medical file, specifically the inclusion of a caveat allowing transfer of records "to the extent necessary for the College to carry out its regulatory functions." The court found the College's proposed wording, though an addition, accurately captured the implicit logic of the prior reasons.

Additionally, due to public health concerns, the court varied the order to allow the College's investigator, Greg Hutchinson, to be the repository for Patient A's file instead of SJO's counsel, and permitted the investigator to share materials with the College's expert, Dr. Sian Rawkins.

The court also clarified that newly discovered emails from SJO's hospital account were part of the file covered by the ruling and that the restrictions on file handling did not apply past the investigation stage.

An amended Reasons for Judgment was also ordered to address privacy concerns.

The College of Physicians and Surgeons initiated an investigation into a psychiatrist, SJO, concerning boundary violations and the receipt of confidential information from a patient (Patient A), who was a former College employee.

SJO resisted producing Patient A's medical records, arguing patient-psychiatrist privilege and a conflict of interest for the College due to parallel investigations.

The court dismissed SJO's application for an injunction, holding that the College's statutory investigatory powers under the Regulated Health Professions Act and Health Professions Procedural Code override common law claims of privilege and patient confidentiality in this regulatory context.

The court ordered SJO to produce the patient's medical records and communications to an external investigator, with strict confidentiality protocols to limit College staff access.

The plaintiff moved to compel answers to undertakings and refusals from the defendants, while the defendants moved for a confidentiality order.

The court upheld the defendants' refusal to answer one question regarding "any other assets under administration" as too broad and irrelevant to the plaintiff's claims.

However, the court compelled a more responsive answer regarding Sun Life's typical practice for commission payments.

The defendants' motion for a confidentiality order concerning client investment information and an executive's employment contract was dismissed, as much of the information was already publicly available or had been filed with the court, negating a serious risk of commercial harm or privacy violation.

RBC Dominion Securities Inc. (RBCDS) sought leave to amend its statement of defence to a counterclaim by Jeffrey Kowal, introducing new grounds for his employment termination.

Kowal did not oppose the amendment but sought compensation for prejudice in costs.

The court granted leave to amend, finding that while RBCDS was successful in obtaining the amendment, Kowal was more successful on the issue of terms, particularly costs.

The court ordered RBCDS to pay Kowal $10,000 in costs as a condition of filing the amended defence, acknowledging the delay by RBCDS and the additional work required by Kowal.

The court determined costs following a successful application where oppression and breach of fiduciary duty were found, leading to a corporate wind-up.

The applicant sought substantial indemnity costs, which were awarded due to the seriousness of the misconduct, including breaches of statutory and fiduciary duties, self-dealing, and obstructive litigation conduct by the respondents.

The court also directed that the costs of the litigation be borne solely by the individual respondents, with adjustments made during the corporate winding-up process to prevent the applicant from indirectly bearing the respondents' costs.

A motion to strike brought by the respondents was also dismissed with costs to the applicant.

The defendant, Dr. Nicholas Peter Plaskos, moved for summary judgment to dismiss a medical malpractice action, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiffs, Ms. Lewis and her sons, alleged delayed diagnosis due to a failure to order an MRI.

The court found that the plaintiffs' counsel did not exercise objective reasonable diligence in reviewing hospital records, leading to a delayed discovery of Dr. Plaskos's potential involvement.

Consequently, the claim against Dr. Plaskos was deemed statute-barred and dismissed.

The applicant, as estate trustee, brought an oppression application alleging breach of fiduciary duties and corporate opportunity appropriation by the individual respondents concerning the "Greystar" transaction and mismanagement of Di Battista Gambin Developments Limited (DBG).

The court found that the individual respondents breached their fiduciary duties and statutory obligations under the OBCA by appropriating a corporate opportunity (Markham property) for Greystar's benefit and engaging in self-dealing through a $3 million mortgage from DBG to Greystar without proper disclosure or shareholder approval.

The directors also abdicated their responsibilities, leading to an unjustified accumulation of cash.

The court concluded that the conduct was oppressive and unfairly prejudicial, warranting a remedy of either winding-up DBG and Whitwood or a buy-out of the applicant's interests by the DiBattista respondents at fair market value, along with an accounting of benefits from the Greystar transaction.