Maureen Whelton

The moving party sought an extension of time to perfect her appeal from a trial judgment awarding her former legal counsel approximately $481,000 in unpaid legal fees.

The responding party opposed the motion.

The Court of Appeal dismissed the motion, finding that while the moving party met the criteria for continuing intention to appeal, explanation for delay, and lack of prejudice, the putative appeal had virtually no chance of success as it primarily attacked the trial judge's factual findings without demonstrating palpable and overriding error.

The plaintiff, a former executive at a property development company, claimed a 5% interest in the profit from the sale of a real estate development project.

The defendant argued the oral agreement was too uncertain to be enforceable and that any such interest was extinguished by a full and final release signed upon the plaintiff's termination.

The Superior Court of Justice found that the agreement was sufficiently certain and that the release, when read with the incorporated settlement correspondence, preserved the plaintiff's 5% interest.

The court awarded the plaintiff $1,372,992 in damages based on his expert's calculation of the profit from the sale of the lands.

The defendant moved for a third adjournment of a five-year-old civil trial, citing the childcare responsibilities of counsel during the third wave COVID-19 lockdown.

The plaintiff opposed further delay, noting the defendant had also served a late expert report during the interregnum.

The court granted a short adjournment to June 2021 to accommodate counsel's family responsibilities, making the new date peremptory to the defendant, but declined to delay the trial until September to accommodate counsel's competing arbitration commitments.

The defendants brought motions for security for costs against the plaintiffs, and the plaintiffs (as defendants by counterclaim) brought a cross-motion for security for costs against the plaintiffs by counterclaim.

The court granted the Langlois defendants' motion against the corporate plaintiffs, finding good reason to believe they had insufficient assets in Ontario.

The court dismissed the motion by a self-represented lawyer defendant, finding no evidence of opportunity cost to justify an award of security for costs in his favour.

The court also dismissed the plaintiffs' cross-motion, as the counterclaim was largely equivalent to a defence to the main action.

The plaintiff underwent cataract surgery performed by the defendant ophthalmologist.

Prior to surgery, the defendant measured the plaintiff's eyes using an older A-scan method, which produced highly variable results.

The defendant failed to inform the plaintiff of these variable results and the increased risk of not achieving her expected visual outcome, nor did he recommend the more accurate IOL Master method at that time.

The surgery resulted in significant under-correction (hyperopia).

To correct this, the plaintiff underwent a piggyback lens surgery, which subsequently caused severe dysphotopsia.

The court found the defendant breached the standard of care regarding informed consent by failing to disclose the material risks associated with the variable A-scan results.

The court established causation and awarded damages for pain and suffering, past income loss, future care costs, and a Family Law Act claim for the plaintiff's son.

The applicant landlord sought leave to appeal an arbitrator's decision which found that the respondent tenant was justified in terminating its commercial lease and ceasing rent payments due to a fundamental breach by the landlord regarding a dangerous sub-ceiling.

The Superior Court of Justice granted leave to appeal, finding that the arbitrator's failure to interpret the lease agreement to determine the allocation of repair responsibilities and failure to apply the established legal test for fundamental breach constituted errors of law.

The court set aside the arbitrator's decision and remitted the matter to a new arbitrator for a rehearing.