Naphtali Silverman

The defendant Phillip Franchetto brought a motion for summary judgment to dismiss negligence claims against him arising from a head-on motor vehicle collision.

The plaintiffs, passengers in the other vehicle, alleged Franchetto was negligent for his speed and evasive maneuvers.

The court dismissed the motion, finding that Franchetto's actions were reasonable and did not breach the standard of care, nor were they a legal cause of the plaintiffs' injuries.

The court emphasized that expert opinions based on hindsight and counterfactuals cannot supplant the legal standard of a reasonable and prudent driver in an emergency.

The Estate of Helen Martindale brought a medical malpractice action against two emergency room physicians, Dr. Lee and Dr. Chiu, alleging negligence in their diagnosis and treatment of Helen Martindale's perianal pain, which was later diagnosed as anal cancer requiring an ileostomy.

The plaintiff contended that the doctors breached the standard of care by failing to properly diagnose, investigate, and provide adequate follow-up.

The court found that both Dr. Lee and Dr. Chiu met the applicable standard of care, concluding that their assessments and treatment plans were reasonable given the patient's presentation and the circumstances at a community hospital.

The court also found the plaintiff's evidence unreliable regarding follow-up instructions and determined that no imaging was medically necessary at the time of the initial emergency room visits.

As no breach of the standard of care was found, the issue of causation was not determined, but the court noted that the plaintiff failed to prove that any alleged breach caused the need for an ileostomy.

The action was dismissed.

The defendants brought a motion at the commencement of trial to exclude a late-served expert radiology report from the plaintiff.

The plaintiff argued the report was necessary for a fair determination on the merits, as it analyzed actual CT images rather than relying on previous radiology reports.

The court found the evidence relevant, probative, and necessary.

The court granted leave to admit the late-served report and adjourned the trial to allow the defendants to obtain a responding radiologist's report.

The defendants brought a motion seeking to exclude the plaintiff from the examination for discovery of the defendant C.H., who alleged sexual assault by the plaintiff when C.H. was a minor.

The plaintiff denied the allegations and opposed exclusion, asserting his right to be present.

The court, considering medical evidence of C.H.'s distress and drawing parallels to testimonial accommodations in criminal law (e.g., Criminal Code s. 486.2), ordered a testimonial accommodation.

C.H. was to be examined in a separate room, with the plaintiff observing via closed-circuit television.

The court clarified that such accommodation does not imply an admission of guilt and that the additional costs would be borne by the defendants.

The appellant employer appealed the dismissal of its motion for summary judgment seeking to enforce a release signed by the respondent employee upon his dismissal.

The release purported to waive any claim for long-term disability benefits.

The motion judge found the release unconscionable and unenforceable as it related to the long-term disability claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred in determining unconscionability on summary judgment.

The court held that the issue of unconscionability and enforceability of the release was a genuine issue requiring trial determination.

The plaintiff, Joe Swampillai, brought an action for long-term disability (LTD) benefits against his former employer, Royal & Sun Alliance Insurance Company of Canada (RSA), and Sun Life Assurance Company of Canada (Sun Life).

The defendants moved for summary judgment, arguing that a full and final release signed by Swampillai barred his claim.

Swampillai pleaded unconscionability to set aside the release as it pertained to LTD benefits.

The court found that the release was unconscionable regarding the LTD claim because the transaction was grossly unfair and improvident, Swampillai lacked independent legal advice on this specific aspect, there was an overwhelming imbalance in bargaining power, and RSA knowingly took advantage of his vulnerability.

Consequently, the release was set aside as it related to the LTD claim, and the defendants' motions for summary judgment were dismissed.