Morgan Watkins

This is a medical malpractice action arising from the death of Maria Patria Asajar on January 22, 2014, following alleged misdiagnosis and delay in treatment of an aortic dissection at North York General Hospital.

The plaintiffs brought a motion for a status hearing under Rule 48.14(6) of the Rules of Civil Procedure after the action had not been set down for trial within the prescribed timeframe.

The defendants opposed, arguing the action should be dismissed for delay.

The court found that the plaintiffs provided an acceptable explanation for the delay and that there was no non-compensable prejudice to the defendants.

The action was permitted to proceed with new mediation and trial-setting deadlines.

This decision addresses two motions: the plaintiff's motion for a stay of a proposed class action against Apple Canada Inc. pending an appeal in an unrelated case (Lewis v. Uber Canada Inc. et al.), and Apple's scheduling motion for summary judgment to be heard before certification.

The plaintiff's class action alleges Apple overcharged consumers on sales tax in its trade-in program, contrary to the Excise Tax Act and other statutes.

The court dismissed the plaintiff's stay motion, finding no certainty the Lewis appeal would resolve the jurisdictional issue, and that a stay is inappropriate merely because a similar legal issue is being decided in an unrelated case.

The court granted Apple's scheduling motion, affirming the strong presumption under s. 4.1 of the Class Proceedings Act, 1992, that merits-based motions should be heard before certification, especially when they could dispose of the entire case.

Costs were awarded to Apple.

The parents of a one-year-old infant who suffered a catastrophic brain injury appealed a decision of the Consent and Capacity Board.

The Board had found that the parents failed to comply with the principles of substitute decision-making under the Health Care Consent Act, 1996 by refusing to consent to the withdrawal of life support proposed by the treating physician.

The Superior Court of Justice dismissed the appeal, finding that the Board made no error in its objective assessment that the withdrawal of life support was in the infant's best interests, given her irreversible condition and lack of any prospect of recovery.

The appellants, parents of an infant with a catastrophic brain injury, appealed a Consent and Capacity Board decision directing them to consent to a palliative care treatment plan proposed by the treating physician.

As the parents' legal aid certificates did not cover the appeals and the matter was highly urgent, the court issued a procedural direction appointing their previous counsel and the infant's counsel as amicus curiae to ensure the appeals could proceed fairly and quickly without waiting for Legal Aid Ontario decisions.