COURT FILE NO.: 424/07 and 425/07
DATE: 20080320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, MOLLOY AND VAN MELLE JJ.
B E T W E E N: File #424/07
ADRIANA MIELE, a mentally incapable person by her Litigation Guardian, ANNE MIELE, MARCO MIELE, a minor by his Litigation Guardian, ANNA MIELE, ENZO MIELOE and the said ANNA MIELE, personally
Plaintiffs (Appellants)
Gavin MacKenzie and Howard Kislowicz, for the Appellants
- AND -
HUMBER RIVER REGIONAL HOSPITAL, S. GREENSPAN, M. NADEL, W. TUROSIENSKI, P. SKOWRON, K. WEREZAK, A. COVELLO, W.RODRIGUEZ, D. WHITING, J. VENTURA, J. GOW, J. BURNETT, J. DOE 1, J. DOE 2, L. HEW, J. DOE 4 THROUGH 18
Defendants (Respondents)
Deborah Berlach, for the Respondents, Humber River Regional Hospital, A. Covello, W. Rodrigues (incorrectly named as W. Rodriquez) and J. Gow
- AND BETWEEN - File #425/07
ANDRAE STEWART, JERROME STEWART and ATRISHA-LEE STEWART, minors by their Litigation Guardian, JUDITH DAVIS, DESMOND STEWART and the said JUDITH DAVIS, personally
Plaintiffs (Appellants)
- AND -
HUMBER RIVER REGIONAL HOSPITAL, A. BELL, M. NADEL, W. TUROSIENSKI, L. LARABIE, S. GORDNER, A. WADDEN, M. RIMMA, J. PIPITONE, L. CAMPBELL, S. BURTON, J. DOE 1 THROUGH 3
Defendants (Respondents)
HEARD at Toronto: March 20, 2008
FERRIER J.: (Orally)
[1] The appellant concedes that if the appeals in these matters are limited to the one issue referred to in paragraph 48 of the Reasons of Carnwath J. and in paragraph 1 of the Order granting leave dated October 25, 2007, then the appeal cannot succeed. That is to say that if the appellant cannot argue before this Court that the presumption that the solicitors were in receipt of privileged information does not apply to the facts of this case, then the appellant could not successfully argue that precautionary measures could be put in place after the fact.
[2] Carnwath J., carefully reviewed Pattillo J.’s Reasons and found his Order correct in every respect except in one narrow aspect. The narrow ground on which leave was granted was solely with respect to remedy and is not so inextricably connected to the substantive of issues that the two must be considered together. It is a stand-alone issue.
[3] Carnwath J. did not grant leave on any of the substantive issues. The only matter which should be considered by this Court is the remedy issue raised by Carnwath J.
[4] Accordingly, in view of the concession above-noted the appeal must be dismissed.
COSTS
[5] For the leave applications and for the appeals, we fix the costs at $20,000, including disbursements and GST, applied $10,000 to each matter. I have endorsed the Appeal Books: “This appeal is dismissed for oral reasons delivered this day. Costs fixed at $10,000, including disbursements and GST for the leave application and the appeal.”
FERRIER J.
MOLLOY J.
VAN MELLE J.
Date of Reasons for Judgment: March 20, 2008
Date of Release: April 2, 2008
COURT FILE NO.: 424/07 and 425/07
DATE: 20080320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, MOLLOY AND VAN MELLE JJ.
B E T W E E N:
ADRIANA MIELE ET AL. v. HUMBER REGIONAL HOSPITAL ET AL.
Divisional Court File #424/07 and 425/07
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: March 20, 2008
Date of Release: April 2, 2008