Michael Dalton Hodgins

The appellants appealed a trial judge's decision to reduce prejudgment interest on non-pecuniary damages from the presumptive 5% to 1.3%.

The Court of Appeal found the trial judge erred by misinterpreting the statutory scheme under the Courts of Justice Act and Rules of Civil Procedure, failing to consider all mandatory factors under s. 130(2), and misinterpreting "changes in market interest rates." The Court clarified that the 5% rate is presumptive and can only be deviated from in unusual or special circumstances, with the onus on the party seeking deviation.

The appeal was allowed, and the 5% rate was reinstated.

This is an appeal in a medical malpractice case where the appellant, Dr. Marshall Zaitlen, challenged a jury's verdict finding him liable for damages to Sean Henry due to a delayed diagnosis of a spinal dural arteriovenous (SDAV) fistula.

The appellant argued that the jury's finding on the standard of care was unreasonable, their explanations for conclusions revealed non-judicial conduct, and the future income loss award was improper.

The Court of Appeal dismissed the appeal, affirming the jury's verdict.

The court held that the jury's conclusions on breach of standard of care and causation were reasonable and supported by expert evidence, emphasizing the high deference accorded to civil jury verdicts and their explanations when read holistically.

The court also found the damages award for future income loss to be reasonable and consistent with the evidence, allowing for a finding of early retirement due to the injuries.

The moving parties, Societe Air France and Air France-KLM Group, brought a motion for leave to appeal the order of Pollak J. dated July 8, 2022.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding parties in the fixed amount of $5,000.

The parties sought to settle the judgment following a jury trial in a personal injury action.

They disagreed on the wording of a consent reduction for a past loss of housekeeping award and the applicable prejudgment interest rate for non-pecuniary damages.

The court determined the wording of the order to reflect that the reduction was made pursuant to Rule 52.08 on consent.

Applying MacLeod v. Marshall, the court exercised its discretion under s. 130 of the Courts of Justice Act to reduce the prejudgment interest rate on non-pecuniary damages from the presumptive 5% under Rule 53.10 to 1.3%, finding that 5% would overcompensate the plaintiffs given historical market rates.

Following a 25-day medical malpractice jury trial, the plaintiffs were awarded damages of $1,918,491.96.

The defendant had made a pre-trial offer to settle the issue of damages for $2,150,000, which the plaintiffs rejected.

The defendant argued for a distributive costs award, seeking costs for the portion of the trial dedicated to damages.

The court held that an offer to settle only damages does not trigger the strict cost consequences of Rule 49.10(2) and declined to make a distributive costs award.

However, applying Rule 49.13 and Rule 57.01, the court reduced the plaintiffs' costs by 30% to reflect their divided success and the unnecessary lengthening of the trial on the damages issue, awarding the plaintiffs $800,000 in partial indemnity costs.

This post-verdict motion concerned the deductibility of long-term disability (LTD) and pension contribution benefits from a jury's award for past income loss in a medical malpractice action.

The defendant sought to deduct these benefits to prevent double recovery by the plaintiff.

The court dismissed the motion, finding that while the LTD benefits were an indemnity and the plaintiff did not prove direct contribution, the City's contractual right to reimbursement for any overcompensation negated the concern of double recovery.

The pension contributions were also found not to be an indemnity and thus not deductible.

The appellants appealed an order requiring them to produce their former lawyers' file in a medical negligence action.

The respondents sought the file to support a limitation period defence, arguing the appellants' former lawyers' file was relevant to the incapable plaintiff's capacity and whether his brother acted as a de facto litigation guardian, and that privilege had been impliedly waived.

The Divisional Court allowed the appeal, holding that instructing counsel does not make one a de facto litigation guardian, and that the appellants had not impliedly waived solicitor-client privilege over the file.

In a medical malpractice trial against a single defendant neurologist for delayed diagnosis, the parties disagreed on the formulation of jury questions regarding causation and damages.

The trial judge ruled that the causation question must use the 'but for' test rather than 'caused or contributed', as the latter could confuse the jury in a single-defendant case.

The judge also ordered the jury to provide reasons for its finding on causation to ensure a rational analysis.

On damages, the judge ruled that mitigation and collateral benefits should be addressed in jury instructions rather than separate questions.

Finally, the judge removed the Estate's claim for past value of care from the jury due to insufficient evidence, but allowed the claim for past value of loss of housekeeping to proceed.

This decision provides reasons for rulings made during a medical malpractice jury trial concerning the admissibility of expert testimony under Rule 53 of the Rules of Civil Procedure.

The court addresses objections from both the plaintiffs and the defendant regarding whether expert opinions proffered in testimony exceeded the substance of their expert reports.

The rulings clarify the application of the 'latency' principle, which permits experts to explain and amplify opinions 'latent in' or 'touched on' by their reports, but not to introduce new fields of opinion without leave, especially where it would cause prejudicial surprise or undue delay.