Neil Oakley

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

Following a 42-day medical negligence trial where damages were agreed at $12 million, the plaintiffs sought costs of over $4.5 million.

The court considered the complexity of the case, the high hourly rates of senior counsel, and the defendants' stout denial of liability.

The court awarded the plaintiffs $4,218,052.00 in partial indemnity costs and disbursements, payable two-thirds by the unsuccessful physicians and one-third by the hospital.

The court declined to make a Sanderson Order, instead ordering the plaintiffs to pay $250,000 in costs to the two successful defendant physicians.

Following a 70-day medical malpractice jury trial where the plaintiff was awarded $3.75 million in damages, the court determined the appropriate quantum of costs.

The plaintiff sought over $3.3 million in costs and disbursements, while the defendants argued for a significantly lower amount, citing proportionality and excessive hours.

The court analyzed the Rule 57 factors, noting the complexity of the case, the necessity of extensive preparation by plaintiff's counsel, and the fact that defence costs themselves exceeded $3.2 million.

The court fixed the plaintiff's costs at $2,404,765 for fees and $628,387 for disbursements, totaling $3,033,152.

The plaintiffs in a medical malpractice action requested an urgent case management conference to seek an extension of time to deliver their expert reports on income loss and liability.

The defendants opposed the extension, arguing the plaintiffs should be barred from delivering the reports due to their breach of the existing timetable.

The court granted the extension, finding that the timetable could be varied to allow the plaintiffs more time without reducing the time afforded to the defendants to deliver their responding reports, thereby preserving the scheduled trial date.

During a medical malpractice jury trial, the defendant physicians sought leave under Rule 53.08 to file a supplementary expert report and to elicit testimony from their experts on matters not explicitly stated in their reports.

The court denied leave for the supplementary report, finding it failed to comply with Rule 53.03 by omitting the reasons for its conclusions, and its admission would cause undue prejudice to the plaintiffs.

The court also ruled on several evidentiary objections, narrowly interpreting the 'latency' principle.

The court held that experts cannot use conclusory statements in their reports to ambush opposing parties with new reasons or theories at trial, though exceptions were made where testimony directly responded to new developments during the trial.

Prior to a medical malpractice jury trial, the court ruled on several procedural and evidentiary motions.

The plaintiffs had entered into a Pierringer Agreement with the defendant hospital and nurses, leaving only the physicians as defendants.

The court ruled that both the plaintiffs and the physicians could cross-examine the settling nurses at trial.

The court also determined the sequencing and phrasing of jury questions, ruling that standard of care must be determined before causation, and permitting 'caused or contributed' language due to the presence of multiple tortfeasors.

Finally, the court allowed the plaintiffs to use photographs of the amputations in their opening address but restricted the experts' use of lengthy PowerPoint presentations.

The court conducted a case management conference in a medical malpractice action initiated in 2011.

The plaintiffs' renewed request to schedule a partial summary judgment motion against one physician defendant on liability was denied due to its partial nature, previous dismissal, and the plaintiffs' breach of an order to set the action down for trial.

The court provided specific directions for the action's progression, including allowing the plaintiffs to file a motion to extend time for setting down for trial, noting the discontinuance against Nurse Defendants, and scheduling further discussions on a de bene esse examination and expert report deadlines.

This ruling addresses the admissibility of expert medical evidence from Dr. Harmeet Gill, an ophthalmologist, in a medical malpractice trial.

The plaintiffs sought to have Dr. Gill testify on the standard of care for ophthalmologists, diagnosis and treatment of orbital cellulitis, the general standard of care for physicians dealing with orbital cellulitis (including emergency room and infectious disease specialists), and causation.

The defendants objected to Dr. Gill testifying outside his specialization and on causation.

The court admitted Dr. Gill's evidence regarding the standard of care for ophthalmologists, general physician knowledge (e.g., sepsis identification), and multidisciplinary team communication and record-keeping, finding it relevant and necessary to the plaintiffs' theory of the case.

However, the court excluded Dr. Gill's opinions on causation, as he admitted lacking expertise on the ultimate outcome of septic patients.

Following a successful partial summary judgment motion in a medical malpractice action, the plaintiffs sought costs of $169,022 on a substantial indemnity basis.

The court rejected the request for substantial indemnity, finding no bad faith by the defendant physician.

However, noting the defendant's refusal to concede uncontroverted medical evidence, the court found a higher than normal partial indemnity award was justified.

Costs were fixed at $60,000 all-inclusive.

In a medical malpractice action arising from a three-year delay in diagnosing and treating an acoustic neuroma, the moving parties sought partial summary judgment identifying the specific injuries caused by the admitted negligence and dismissing the defence of contributory negligence.

The court held that the expert evidence on causation and the listed injuries was largely uncontroverted and that the injuries could be summarily established without a trial.

Applying the reasonable patient standard, the court also found no evidentiary basis for the allegation that the patient unreasonably missed appointments or delayed follow-up in a manner contributing to her injuries.

Partial summary judgment was granted listing the injuries and dismissing contributory negligence.

The plaintiffs brought an action against the provincial government alleging that a child's death in a hospital emergency department was caused by government funding cuts and restructuring decisions.

The plaintiffs claimed negligence, abuse of public office, and breach of fiduciary duty.

The government appealed a motions judge's refusal to strike these claims.

The Divisional Court allowed the appeal and struck the statement of claim, finding that the government owed no private law duty of care to the plaintiffs, the funding decisions were protected policy decisions, and the elements of abuse of public office and breach of fiduciary duty were not properly pleaded.

The applicant sought judicial review of the Ontario Human Rights Commission's decision to decline to deal with her complaint of discrimination based on marital status and age.

The Commission had found the complaint to be vexatious and out of time under section 34 of the Human Rights Code.

The Divisional Court held that the Commission was entitled to rely on the definition of 'vexatious' from Black's Law Dictionary and that its decision was not patently unreasonable.

The application for judicial review was dismissed.