Nina Bombier

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.

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.

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.

Following the granting of a summary judgment motion in favour of the defendants in a medical negligence action, the court considered the defendants’ request for costs against the remaining plaintiffs.

The defendants sought modest costs despite incurring substantially higher legal fees and disbursements, largely related to expert reports.

The plaintiffs made no submissions on the costs issue despite having the opportunity to do so.

The court found the defendants’ request reasonable, particularly given conduct by the responding party that had unnecessarily prolonged the proceedings.

Costs of $5,000 were awarded to each of the two defendants seeking costs.

Following a civil jury trial dismissing a medical malpractice claim, the successful defendant sought partial indemnity costs exceeding $74,000.

The court assessed costs under Rule 57 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality articulated by the Court of Appeal.

While the court accepted the reasonableness of senior counsel’s rates and most claimed hours, it reduced mediation costs and limited recovery for junior counsel’s trial preparation and attendance where the work resembled tasks that could have been performed by a law clerk.

The court emphasized that training junior counsel should not be funded by the opposing party through costs awards.

Total costs were fixed at $55,437.84 inclusive of fees, HST, and disbursements.

The plaintiffs brought a medical malpractice action following the death of a mother from postpartum hemorrhage and disseminated intravascular coagulation (DIC) hours after a caesarean section.

The plaintiffs alleged that the nurses, anaesthesiologist, and obstetricians breached the standard of care by failing to recognize and treat the bleeding earlier.

The court found that while the anaesthesiologist breached the standard of care by delaying notification to the obstetricians of the patient's deteriorating condition, this delay did not cause the patient's death.

The court concluded that even if the decision to operate had been made earlier, the patient would still have developed DIC and the fatal blockage would not have been prevented.

The action was dismissed without costs.

During a civil medical malpractice jury trial, the plaintiff sought to read portions of the defendant physician’s examination for discovery relating to pre-surgery discussions about the desired breast size following cosmetic surgery.

The defendant requested that additional portions of the discovery transcript also be read in pursuant to Rule 31.11(3) of the Rules of Civil Procedure, arguing they qualified or explained the plaintiff’s selected excerpts.

The court reviewed the purpose and scope of Rule 31.11(3) and the jurisprudence governing qualifying read-ins.

The court held that additional discovery evidence may be compelled where necessary to prevent the trier of fact from being misled by partial admissions or incomplete answers.

Because the additional answers addressed the same issue and could qualify the earlier discovery evidence, the court directed that both sets of questions and answers be read to the jury.

Following the granting of summary judgment dismissing the plaintiff’s claims against two defendants in a medical negligence action, the court determined the issue of costs.

The successful defendants sought costs after the self‑represented plaintiff failed to deliver responding submissions within the allotted time.

Although the defendants had incurred significantly higher legal costs, each requested a reduced amount.

The court found the proposed amounts reasonable and fixed costs at $7,500 for each successful defendant.

The plaintiff alleged wrongful psychiatric detention and negligence against a hospital and psychiatrist after being held as an involuntary patient for approximately two weeks and reported to the Ministry of Transportation, which led to suspension of his driver's licence and alleged financial losses.

The defendants brought motions for summary judgment, arguing there was no genuine issue requiring a trial because the plaintiff had produced no expert evidence establishing breach of the medical standard of care.

The defendants filed expert reports concluding that the psychiatrist’s clinical decisions and the nursing care met the applicable standards and that the report to the Ministry of Transportation was appropriate.

The court held that medical malpractice claims generally require expert evidence and that without such evidence the plaintiff had no reasonable prospect of success.

Statutory protections under the Health Care Consent Act, 1996 and the Highway Traffic Act also shielded the physician for actions taken in good faith and for mandatory reporting.

Summary judgment was granted dismissing the action against the hospital and physician.