Michael Alter Hershkop

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The defendants brought a motion seeking broad production of documents from the plaintiffs' lawyers' files, arguing that the plaintiff had waived solicitor-client privilege by putting her state of mind regarding discoverability in issue for a summary judgment motion.

The court dismissed the motion, emphasizing the fundamental nature of solicitor-client privilege.

It found that the plaintiff's state of mind after retaining current counsel in 2016 was not relevant to the discoverability issue for the limitation period, as the action was commenced within two years of that date.

The court distinguished the facts from cases where legal advice directly impacted the limitation period and suggested a more targeted approach through cross-examination for relevant pre-retainer discussions.

This decision addresses whether a finding of contributory negligence against a plaintiff mother (Kimberley York) should reduce the global damages awarded to all plaintiffs, including her injured child (Cole Parliament) and husband (John Parliament), or only her personal damages.

The court held that such a reduction would only apply to the mother's personal damages, as the defendants failed to properly advance a counterclaim for contribution and indemnity against her within the applicable limitation period, as required by the Rules of Civil Procedure and the Limitations Act.

The plaintiffs brought a motion to disqualify the defendants' proposed expert medical witness, Dr. Karen Fleming, from testifying on the standard of care.

The court reviewed Dr. Fleming's two reports and her testimony during a voir dire, finding that her opinions were based on improper credibility assessments and fact-finding, rather than objective expert analysis.

Dr. Fleming's reports and cross-examination revealed a lack of impartiality and a preferential treatment of the defendants' evidence while disregarding the plaintiffs' evidence without adequate explanation.

The court concluded that Dr. Fleming lacked the necessary independence and objectivity to provide an impartial opinion, rendering her not a properly qualified expert under the Mohan framework.

Consequently, her evidence was deemed inadmissible, and the plaintiffs' motion to disqualify her was allowed.

The plaintiffs sought to exclude a December 17, 1999 note from Dr. Conley's Clinical Notes and Records, which contained hearsay regarding a past conversation about Cole Parliament's head size.

The plaintiffs argued the note was unreliable hearsay, not a proper business record, and highly prejudicial.

The defendants contended it was a business record and admissible.

The court applied the principled approach to hearsay, finding the note admissible as a business record under section 35 of the Ontario Evidence Act.

The court noted that the availability of all relevant witnesses (record keeper, informant, and parties to the original conversation) at trial would allow for cross-examination, satisfying reliability concerns and mitigating prejudice.

The motion to exclude the evidence was dismissed.

The plaintiffs in a long-standing medical malpractice action sought an adjournment of an 8-week jury trial, scheduled to commence April 15, 2019, due to a recent breakdown in counsel-client relationship and subsequent change of solicitors.

The defendants opposed the adjournment, emphasizing the age of the action, extensive trial preparation, and the significant delay a new trial date would entail.

The court, while expressing reluctance and noting that the change of counsel at the eleventh hour did not constitute an "exceptional circumstance" under the Toronto practice direction, ultimately granted the adjournment on terms.

This decision was influenced by the complexity of the medical negligence case and the involvement of a party under disability, necessitating new counsel sufficient time to review the file and address critical issues like Medicare and Medicaid.