Nina Bombier

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.

The appellant, General Electric Canada Company, sought a declaration that its insurers had a duty to defend it regarding a request by the Ministry of the Environment (MOE) to delineate the source of TCE contamination on its former property.

The application judge dismissed the application, finding the MOE letter was a request for voluntary action and the costs incurred were compliance costs, not defence costs.

The Court of Appeal upheld the decision, applying the pleadings rule and concluding that the MOE letter did not constitute a claim that triggered the insurers' duty to defend.

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.

The appellant massage therapist appealed a decision of the Discipline Panel finding him guilty of professional misconduct for authorizing an employee to issue false receipts.

He argued the panel erred by convicting him on a different theory of liability than advanced by the prosecutor and erred in its factual findings.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness as the appellant knew the case he had to meet, and holding that the panel's credibility findings and ultimate conclusion were reasonable.

The appellant physician appealed a four-month suspension imposed by the Discipline Committee of the College of Physicians and Surgeons of Ontario.

The suspension resulted from the appellant's failure to maintain a narcotics log, which breached an undertaking he had provided to the College following previous disciplinary concerns regarding his prescribing practices.

The Divisional Court applied a reasonableness standard of review and found that the penalty was within the range of reasonable outcomes, emphasizing the importance of undertakings to the self-regulatory scheme and the need for general and specific deterrence.

The appeal was dismissed.

The appellant appealed a summary judgment decision.

The Court of Appeal reviewed the record and the motion judge's detailed reasons, finding no error.

The appeal was dismissed with no costs.

The appellant physicians, who performed cosmetic surgery without formal surgical residency, were investigated by the College of Physicians and Surgeons of Ontario for potential professional misconduct or incompetence.

The College sought to have investigators observe their surgical practices, which the appellants refused, arguing the governing legislation did not authorize compelled observation.

The Court of Appeal upheld the Divisional Court's decision, finding that the power to 'inquire into and examine the practice' under s. 76(1) of the Health Professions Procedural Code encompasses the direct observation of a member's practice, particularly to protect the public interest.

The appellant appealed a jury verdict regarding a motor vehicle accident where the respondent suffered a severe brain injury.

The jury found the appellant's driver 61% liable and the respondent 39% liable, awarding nearly $14 million for future care costs.

The appellant argued the liability apportionment and damages were perverse and resulted from deficient jury instructions.

The Court of Appeal dismissed the appeal on liability and damages, finding the jury's conclusions were not plainly unreasonable and the trial judge's instructions were adequate.

However, the court allowed the appeal on costs in part, reducing the substantial indemnity costs award to prevent it from amounting to full indemnity.

The applicants, physicians under investigation by the College of Physicians and Surgeons of Ontario, brought applications for judicial review challenging the scope of investigators' powers under the Health Professions Procedural Code.

They argued that investigators could not compel them to submit to interviews or allow observation of their surgical practices.

The Divisional Court dismissed the applications, holding that the statutory power to 'inquire into and examine the practice' includes the power to observe surgeries, and the incorporation of the Public Inquiries Act grants investigators the power to compel interviews.

The court also dismissed as premature the challenge to the Registrar's decision that there were reasonable and probable grounds to initiate the investigations.

The appellants appealed a decision interpreting an accepted settlement offer under Rule 49.10.

The motion judge held that an offer to pay $6,000,000 in damages did not preclude a structured settlement, provided the appellants' obligations ended with the payment of the principal amount plus costs.

The Court of Appeal agreed, noting that the motion judge ensured no added financial or legal obligations were placed on the appellants.

The appeal was dismissed.

The applicant, operator of the Highway 407 toll road, sought an order of mandamus compelling the Registrar of Motor Vehicles to refuse to validate or issue vehicle permits for individuals who failed to pay tolls.

The Registrar had refused to act, arguing that he had a duty to ensure the applicant complied with the statutory scheme and that individuals were not wrongly denied plate renewals.

The Divisional Court granted the application, finding that the Highway 407 Act imposes a mandatory duty on the Registrar to deny permits upon receiving notice of non-payment.

The court held that the Registrar has no discretion or oversight role to look behind the notices or compliance certificates, and declined to exercise its residual discretion to refuse mandamus.

The applicant brought a motion regarding refusals and undertakings arising from examinations in a judicial review application concerning the respondent's authority to enforce notice of licence cancellation.

The court reviewed transcripts and correspondence, ruling on obvious relevancy issues and leaving the remainder to the Divisional Court panel to determine, noting the competing views on the scope of the record.

The Minister of Transportation appealed a final declaratory judgment interpreting a 60-day cure period provision in the Highway 407 Concession and Ground Lease Agreement.

The Court of Appeal held that the application judge lacked jurisdiction to grant a final declaration, as the agreement's comprehensive dispute resolution mechanism reserved such interpretations for an arbitrator.

However, the court found the application judge did have jurisdiction to grant an interim order preserving the parties' rights pending arbitration.

The appeal was allowed and the judgment set aside.

The plaintiffs sought leave to appeal an order dismissing their appeal from a Master's decision.

The Master had ordered the return of inadvertently faxed expert reports but refused to expunge them from the record, allowing the defendants to reserve their right to seek production later.

The Divisional Court dismissed the motion for leave, finding no merit to the application because there was evidence supporting the Master's factual finding that the documents were not sent in error.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding no error in the lower court's decision based on the evidence before it.

The Court also declined to admit a post-judgment letter as fresh evidence, as it did not meet the necessary prerequisites.

The appellants, former senior executives of the respondent corporation, appealed a trial judgment finding that no 'change in control' had occurred to trigger generous compensation provisions in their employment contracts.

During a period of financial difficulty, a shareholder group accumulated proxies for over 35 percent of the voting shares to requisition a special meeting to replace the board of directors.

A settlement was reached before the meeting, and the executives subsequently claimed payouts from a trust fund established for change of control scenarios.

The Court of Appeal affirmed the trial judge's conclusion that the mere accumulation of proxies did not confer the right to control or direct the voting power of the corporation, and thus did not constitute a change in control under the agreements.

The appellant insurer issued a comprehensive general liability policy to the respondent insured.

The insured was sued for wrongful dismissal, including allegations of intentional racial and age discrimination.

The insurer sought a declaration that it owed no duty to defend the discrimination claims.

The application judge ruled the insurer was required to provide a defence.

On appeal, the Court of Appeal allowed the appeal, holding that the fortuity principle of insurance law dictates that liability policies only cover accidental or fortuitous losses.

Because the underlying claims alleged intentional discrimination, they fell outside the scope of the policy, and the insurer had no duty to defend.