Nina Bombier

The plaintiffs brought a motion to certify a class action against a plastic surgeon and his clinic for breach of privacy.

The claims involved two main grievances: the surreptitious video surveillance of patients in the clinic (the Surveillance Complaint) and the posting of patient images on social media without valid consent (the Social Media Complaint).

The court certified the Surveillance Complaint, finding it met all criteria under s. 5 of the Class Proceedings Act, 1992.

However, the court declined to certify the Social Media Complaint, concluding that the issue of valid consent was highly idiosyncratic and required individual inquiries, meaning it failed the common issues and preferable procedure criteria.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike portions of affidavits filed by the plaintiffs in support of certification.

The court granted the motion, striking evidence that was irrelevant, prejudicial, or detailed a College of Physicians and Surgeons investigation contrary to section 36 of the Regulated Health Professions Act.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike the expert report of Dr. Mary Anne Franks, proffered by the plaintiffs for the certification motion.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images online without consent.

The court granted the motion to strike, finding that Dr. Franks' evidence regarding the social and cultural context of non-consensual image distribution and American law was not relevant or helpful to determining the common issues for certification.

In a proposed class action against a plastic surgeon for breach of privacy involving surreptitious video recording and unauthorized social media postings, the plaintiffs brought a preliminary motion for leave to deliver a supplementary affidavit regarding class size after cross-examinations had concluded.

The court dismissed the motion, finding that the defendants had provided their best information based on the plaintiffs' class definition, the supplementary evidence did not respond to matters raised on cross-examination, and allowing the affidavit would amount to prejudicial case-splitting.

The plaintiffs in a proposed privacy class action brought a preliminary motion to strike the complete clinical medical charts and medical records of the plaintiffs and two deponents, which were included in the responding affidavits of the defendant doctor.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images on social media without consent.

The court granted the motion, finding that the detailed medical records were irrelevant and inadmissible for the purposes of the certification motion, as the action concerned privacy breaches rather than medical malpractice.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld the College of Physicians and Surgeons of Ontario's decision to take no further action regarding her complaint against a physician.

The applicant, an autism advocate, complained about the physician's use of chelation therapy for children with autism spectrum disorder.

The Divisional Court dismissed the application, finding that the Board reasonably concluded the College's investigation was adequate and its decision not to refer the matter to discipline was reasonable, given the lack of patient-specific evidence of harm and the statutory protections for alternative medicine.

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.

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.

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.

Dentons Canada LLP ("Dentons") brought an application seeking declarations regarding insurance coverage for a social engineering fraud loss.

Trisura Guarantee Insurance Company ("Trisura"), the respondent insurer, moved to convert the application to an action under Rule 38.10(1)(b), arguing that there were disputed facts, unproduced evidence, and a need to consider other insurance policies and join other insurers.

Dentons subsequently narrowed its application to seek an "advisory opinion" on the interpretation of only the Computer Fraud Rider, without addressing other policy conditions or exclusions.

The court granted Trisura's motion, converting the application to an action.

The judge found that a full determination of coverage issues required a complete factual record, consideration of all potentially responsive policies, and the involvement of other insurers, which could not be achieved through a narrow application seeking an advisory opinion.

The court emphasized judicial efficiency and economy, consistent with Hryniak v Maudlin, to avoid a multiplicity of proceedings and inconsistent findings.

In a negligence appeal arising from an auditor’s failure to detect corporate fraud, the Court applied the Anns/Cooper framework to pure economic loss claims for negligent misrepresentation and negligent performance of a service.

The Court held that liability must be confined to losses that fall within the purpose of the defendant’s undertaking and the plaintiff’s reasonable reliance.

It found no recoverable loss tied to services provided for investment solicitation, but upheld liability for losses flowing from a negligent statutory audit prepared for shareholder oversight.

The appeal was allowed in part, and damages were reduced to reflect only losses causally connected to the statutory audit.

The Acuity defendants moved for summary judgment in a fire loss claim, arguing no causal connection could be proven between the fire and their light fixtures.

The plaintiff alleged a design defect in the open luminaires led to a metal halide bulb rupture, igniting a tarp.

The court found a genuine issue requiring a trial on causation, noting conflicting expert evidence and deficiencies in the initial fire investigation due to premature site clearance.

The motion for summary judgment was not granted, but the court directed further oral evidence to be adduced on the causation issue to potentially streamline the lengthy and expensive litigation.

The moving party corporation sought leave to appeal an order dismissing its motion to set aside or stay an interim payment order requiring it to advance legal fees to a former officer facing criminal charges in the United States.

The moving party argued that a recent jury verdict of guilty in the US constituted sufficient evidence of mala fides to overcome the indemnification obligation.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's decision, as the US verdict had not yet been entered as a final judgment and the risk of non-repayment did not constitute irreparable harm.

This costs endorsement followed prior motion rulings concerning advancement and indemnification related to U.S. criminal proceedings.

The court held the successful party was entitled to full indemnity costs because the motion costs fell within the defined term “Legal Fees” under an earlier order governing advancement rights.

The court rejected objections based on alleged duplication of counsel and excessive staffing, particularly where the responding party provided no evidence of its own costs.

The only reduction concerned the investigator’s account, which was cut by 50 percent for attendance at discoveries.

Full indemnity costs were then fixed in the amount stated in the endorsement, plus a separate U.S. dollar amount.

Following the dismissal of the appeal and cross-appeal, the Court of Appeal considered the parties' costs submissions.

The court declined to award costs to any party, citing the tragic circumstances of the case and the reasonableness of the appeal, which raised bona fide legal issues.

The appellants appealed the dismissal of their medical malpractice claim following the death of a mother from post-partum haemorrhaging hours after a caesarean section.

The trial judge found that while one anaesthetist breached the standard of care by failing to promptly notify an obstetrician of the patient's deteriorating condition, this breach did not cause her death, which the judge attributed to an untreatable blockage in her lung caused by disseminated intravascular coagulopathy (DIC).

The Court of Appeal dismissed the appeal, holding that the trial judge's findings on the cause of death and lack of causation were supported by the evidence and did not amount to palpable and overriding errors.

A dissenting judge would have ordered a new trial, finding the trial judge's cause of death theory was unsupported by the evidence and not advanced by either party.

Supplementary reasons clarifying aspects of an earlier medical negligence judgment arising from treatment provided at a hospital and by several physicians.

The court clarified that the action was dismissed against one physician and the hospital.

The court also clarified the appearance of additional defence counsel for two of the remaining physician defendants.

The reasons supplement the earlier judgment and resolve ambiguity in the disposition and counsel record.

The plaintiff sustained bilateral wrist fractures after a slip and fall and was treated at the defendant hospital.

The defendant doctors reduced the fractures and applied plaster splints.

The plaintiff subsequently developed a full thickness burn on her right arm, which she alleged was caused by the negligent application of the cast or a failure to properly diagnose and treat the injury.

The court found that the defendant doctors met the standard of care in their treatment and that the burn was an unfortunate, rare, and unforeseeable complication of the exothermic reaction from the plaster.

The action for medical malpractice was dismissed, and costs were awarded to the defendants.

Following a medical negligence trial in which the plaintiffs were unsuccessful in establishing a causal connection between breaches of the standard of care and a patient’s death following a caesarean section, the defendant hospital sought costs of $272,000.

The plaintiffs included the deceased’s spouse and minor children represented by a litigation guardian.

Although the plaintiffs had declined a settlement offer and the defendants had succeeded at trial, the court exercised its discretion under s. 131 of the Courts of Justice Act to deny a costs award.

Considering the plaintiffs’ circumstances, the public nature of the defendant institution, and broader access to justice concerns, the court held that imposing the full costs sought would be inequitable.