Paul Harte

A trial management conference was held to provide directions for an upcoming 10-day virtual trial.

The action was proceeding against only one defendant, the others having been dismissed.

The court provided directions regarding the use of a shared document folder, the preparation of trial materials including an Agreed Statement of Facts and Joint Document Book, and the completion of a Report to Trial Judge.

The court also scheduled a practice run for the virtual platform and provided guidance on managing exhibits and video presence during the trial.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

In a class action alleging bacterial infections from epidural injections, the defendant physician, Dr. James, moved for documentary discovery and oral examinations of class members.

The court, considering the plaintiff's novel epidemiological causation theory, granted further documentary production for relevant, non-duplicative information.

However, it denied oral examinations for most class members, ordering written interrogatories for a selected sample instead, citing concerns about litigation delay, expense, and the passive role of class members.

The representative plaintiff could be re-examined orally.

The applicant, who was catastrophically impaired in a motor vehicle accident, sought a determination that the HST charged on attendant care services should be paid outside the statutory monthly limit of $6,000.

The respondent insurer had been paying the HST out of the benefit limit.

The Tribunal found that HST is a tax, not a 'reasonable and necessary expense' under section 19 of the Schedule, and therefore must be paid outside of the attendant care benefit limit.

The Tribunal dismissed the applicant's claim for a special award under O. Reg. 664, finding that the insurer's interpretation of the Schedule, while incorrect, was not unreasonable given the lack of explicit guidance on the issue.

The plaintiff brought a motion to amend the certification order in a class action concerning a bacterial infection outbreak among patients who received epidural steroid injections from the defendant physician.

The plaintiff sought to revise and expand the common issues to include negligence, causation based on epidemiological evidence, fiduciary duty, and limitation periods, and to add two subclasses.

The defendant physician brought a cross-motion to decertify the action, arguing that causation and standard of care required individualized assessments.

The court granted the plaintiff's motion to amend the certification order and dismissed the defendant's motion to decertify, finding that the plaintiff's novel methodology of using statistical correlation to prove causation met the 'some basis in fact' standard for certification and should be tested at a common issues trial.

In a medical negligence action concerning the birth of triplets with severe disabilities, the defendant Dr. Benzaquen brought a Rule 21 motion to dismiss the infant plaintiffs' "wrongful life" claims.

The plaintiffs argued the motion required a full evidentiary record and should be heard at trial.

The court determined that Rule 21 motions, which address questions of law on the pleadings, should generally be heard at the earliest date, prior to trial, to potentially dispose of claims or substantially shorten the trial.

The judge directed counsel to schedule the motion for October 2019 and confirmed a new trial date for March 2021, allowing for potential appeals of the motion decision before the lengthy trial.

The Attorney General of Ontario moved to dismiss 14 proposed class actions against the Crown (specifically, former and current FSCO superintendents Philip Howell and Brian Mills) for non-compliance with the 60-day notice requirement under s. 7(1) of the Proceedings Against the Crown Act.

The plaintiffs had filed 15 class actions alleging that auto insurers failed to comply with FSCO guidelines regarding HST calculation in SABS benefits, and that the FSCO superintendents failed to enforce these guidelines.

The Crown argued that a single notice, the 'Ralston Notice,' was insufficient for the 14 subsequent actions as it did not name all representative plaintiffs.

Applying the 'legislative purpose' approach from Mattick Estate, the court found the Ralston Notice sufficient, as it communicated a complaint reasonably anticipated to result in litigation and provided enough particulars for the Crown to investigate.

The motion to dismiss was denied, and the 14 actions were permitted to proceed.

The appellant suffered a bowel leak after surgery and developed septic shock.

He sued the hospital and a nurse for delayed diagnosis and treatment, alleging nursing negligence and medication errors.

The trial judge dismissed the action, finding no breach of the standard of care and that the appellant failed to prove causation, as his injuries were inevitable due to the onset of the sepsis cascade before the alleged negligence occurred.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the evidence or application of the 'but for' causation test.

A case conference was held to set a schedule for the plaintiff's upcoming motion to amend pleadings and common issues in a certified class action.

The court established a timetable for the exchange of motion materials, expert reports, cross-examinations, and factums, and scheduled the motion to be heard on July 11 and 12, 2019.

The defendants in a medical malpractice and wrongful death action brought a motion for summary judgment to dismiss the Family Law Act claims of the deceased's partner, arguing he did not meet the definition of a spouse.

The defendants also moved to remove him as the litigation guardian for the deceased's minor grandchildren.

The court dismissed the summary judgment motion, finding a genuine issue for trial regarding the partner's spousal status based on conflicting evidence.

The court also dismissed the motion to remove the litigation guardian, finding him qualified, indifferent to the outcome, and not adverse in interest to the minors.

The plaintiff and defendants both brought unsuccessful motions for summary judgment in an action for solicitor negligence arising from a medical negligence claim.

The court determined the costs for both motions.

The defendants were awarded $18,196.23 in costs for the plaintiff's motion, with expert disbursements of $9,570 ordered as costs in the cause.

The plaintiff was awarded $12,161.56 in costs for the defendants' motion, with the court reducing the plaintiff's claimed fees to reflect the fair and reasonable expectations of the unsuccessful party.

An appeal from a motion judge's decision certifying a class action and granting partial summary judgment against an anaesthesiologist in a bacterial infection outbreak case.

The motion judge certified the class proceeding and found the defendant breached his duty of care regarding infection prevention and control practices.

The appellate court allowed the appeal on procedural fairness grounds, finding that the motion judge reformulated the certified common issue without notice to or submissions from the parties, and then decided the summary judgment motion on the basis of this new formulation.

The court held that this violated procedural fairness and entitled the defendant to a new hearing.

Dr. Stephen Rose James sought leave to appeal portions of a motion judge's order that certified a class action and defined common issues, specifically regarding the wording of the breach of standard of care common issue and the certification of punitive damages as a common issue.

The court granted leave to appeal the breach of standard of care issue, finding serious debate regarding the procedure followed when the motion judge amended the common issue post-hearing without submissions.

However, leave to appeal the punitive damages common issue was refused, as it was deemed common to the class and not an issue extending beyond the parties' interests.

The plaintiff sought certification of a class action and partial summary judgment against an anesthesiologist and a pain clinic following an outbreak of staphylococcus aureus infections among patients who received epidural injections.

The court certified the action as a class proceeding, finding the criteria under the Class Proceedings Act were met.

The court also granted partial summary judgment, finding that the physician breached his duty of care regarding infection prevention and control practices, which established general causation for the class and specific causation for patients whose infections were genetically linked to the physician.

The plaintiff sought to add an orthopaedic surgeon as a co-defendant to a medical malpractice action nearly ten years after the surgery, alleging that the surgeon fraudulently concealed an intraoperative event.

The Master granted the motion to add the surgeon with leave to plead a limitation period defence.

On appeal, the Superior Court of Justice set aside the Master's order, finding that the plaintiff and his counsel knew or ought to have known of the potential claim against the surgeon shortly after the surgery.

The court held that there was no fraudulent concealment and that the claim against the surgeon was statute-barred.

The respondent physician commenced an action for loss of income after his hospital privileges were temporarily restricted following an incident in the operating room.

The appellant hospital and doctors brought a motion for summary judgment, arguing the court lacked jurisdiction because the respondent had not first proceeded to a hearing before the Health Professions Appeal and Review Board (HPARB) under the Public Hospitals Act.

The motion judge dismissed the jurisdictional challenge.

The Court of Appeal upheld the decision, finding that the respondent had followed through with the hospital's internal dispute resolution process, which concluded with his return to full practice, and therefore he was not required to seek a hearing before the HPARB before commencing his civil action.

The plaintiff brought a motion for leave to amend the statement of claim to add a surgeon as a defendant in a medical negligence action after the action had already been set down for trial.

The proposed defendant opposed the motion on the basis that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that there were genuine issues of fact and credibility regarding discoverability, including allegations that the proposed defendant failed to disclose an intra‑operative complication and may have misled the plaintiff’s counsel.

Applying the approach in Wong v. Adler, the court determined that such factual disputes should not be resolved on a motion to amend.

The surgeon was therefore added as a defendant with leave to plead a limitation defence.

On a summary judgment motion in a hospital privileges dispute, the defendants argued that the tort claims were statute barred and, alternatively, had to be stayed pending review by the statutory appeal tribunal under the Public Hospitals Act.

The court held that the claims against two individual physicians were out of time because the alleged conspiracy was discovered in 2008 and there was no evidence supporting continuation of the impugned conduct within the limitation period.

However, the court held the claims against the hospital defendants were not barred because it was not legally appropriate to commence a civil damages action until the statutory hospital process had run its course, and in any event the pleaded conduct could constitute a continuing cause of action.

The court further held no stay was required because no decision cancelling, suspending, or substantially altering privileges had been made that could ground an appeal to HPARB.

The plaintiffs brought a medical malpractice action against the defendant cardiologist following the sudden death of a 36-year-old man who collapsed after completing a half-marathon.

The deceased had severe aortic stenosis.

The plaintiffs alleged the defendant failed to properly advise the deceased against strenuous exercise.

The court ruled that hearsay statements by the deceased regarding the doctor's advice were inadmissible for lack of threshold reliability.

The court accepted the defendant's evidence that he had advised the deceased against distance running and warned him of the risk of sudden death.

The court found the defendant met the standard of care and dismissed the action.