Paul J. Pape

The appellants, a law firm and its principal lawyer, appealed a motion judge's decision denying them a fee premium and reimbursement of disbursements for their representation of a catastrophically injured client under a disability.

During the appeal, the parties reached a settlement for a reduced fee premium and full disbursements.

The Court of Appeal approved the settlement, finding it was in the best interests of the person under a disability and fairly compensated the lawyers for their services and risk.

The appellants, two municipalities, appealed a trial judgment apportioning them 2/3 liability for a motor vehicle accident that rendered two young women quadriplegic.

The trial judge found the unlit, unmarked rural road was in a state of non-repair due to a dangerous 'accident hill' that blinded drivers.

The respondents cross-appealed, arguing the driver's 1/3 liability should be reduced to 10 percent.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge's factual conclusions were amply supported by the evidence and his apportionment of fault was entitled to substantial deference.

The appellants appealed the dismissal of their action for damages against the respondent municipality.

The appellant and a friend had driven down a dead-end rural road, got stuck on a hydro right-of-way, and abandoned their vehicle in extreme cold, resulting in severe frostbite injuries.

The appellants argued the municipality breached its standard of care by failing to post 'No Exit' and checkerboard signs.

The Court of Appeal upheld the trial judge's findings that the road conditions were not potentially dangerous to reasonable drivers and that the appellants would have ignored the signs regardless.

The appeal was dismissed.

The appellant obstetrician appealed a trial judgment finding him negligent in the forceps delivery of an infant who suffered catastrophic brain injuries due to an umbilical cord prolapse.

The trial judge found the appellant breached the standard of care by disengaging the fetal head during the procedure.

The appellant argued the trial judge erred in discharging the jury, finding negligence, and assessing causation.

The respondents cross-appealed the future care costs award.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge's decision to discharge the jury was reasonable, his factual findings on negligence were supported by the record, and the damages award was fair.

The appellant, who was struck on the head with rollerblades by a fellow student in the schoolyard when she was six years old, appealed the dismissal of her negligence action against the school board.

She argued that the absence of an incident report and the presence of rollerblades contrary to school policy compelled a finding of negligent supervision.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the incident occurred suddenly and without warning, and that the appellant failed to establish a breach of the duty of care owed by the school.

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.

The appellant suffered severe physical and psychological injuries, including a leg amputation and clinical depression, in a motor vehicle accident.

He sought enhanced statutory accident benefits, arguing he was catastrophically impaired.

The trial judge held that physical and psychological impairments could not be combined under section 2(1.1)(f) of the Statutory Accident Benefits Schedule to meet the 55 per cent whole person impairment threshold.

The Court of Appeal reversed this decision, finding that the language of the Schedule, the purpose of the American Medical Association's Guides, and the goals of the statutory scheme permit the combination of physical and psychiatric impairments to determine catastrophic impairment.

The appellants sought $207,612.83 in partial indemnity costs for the appeal against the respondent Dr. Librach, who proposed $101,571.06.

The Court of Appeal fixed the appellants' partial indemnity costs against Dr. Librach at $100,000 inclusive of taxes, plus disbursements, noting that even the respondent's proposed figure was on the high end.

The appellant municipality appealed the dismissal of a charge against the respondent for failing to comply with an order under the Building Code Act.

The lower courts had dismissed the charge on the basis that it was laid outside the one-year limitation period.

The Court of Appeal allowed the appeal, finding that the subject matter of the proceeding was the failure to comply with the order, which occurred within the limitation period.

The court clarified that the existence of other remedies under the Act does not preclude prosecution.

The dismissal was set aside and a new trial was ordered.

The appellants appealed the dismissal of their medical negligence action relating to a birth injury that resulted in cerebral palsy.

The trial judge had dismissed the action against the attending obstetrician, nurse, and hospital.

The Court of Appeal allowed the appeal with respect to the obstetrician, finding that the trial judge made inconsistent findings regarding the interpretability of fetal heart rate monitor outputs and erred in concluding that the bradycardia would have occurred regardless of the application of a vacuum extractor.

A new trial was ordered for the claim against the obstetrician.

The appeal regarding the nurse and hospital was dismissed.

The plaintiff was injured in a motor vehicle accident and was required to elect between receiving caregiver benefits or income replacement benefits under the Statutory Accident Benefits Schedule.

He elected to receive caregiver benefits.

In his subsequent tort action, the defendants sought to deduct the value of the income replacement benefits from his past income loss claim, arguing they were 'available' to him under s. 267.8(1) of the Insurance Act.

The Court of Appeal held that because the plaintiff was legally permitted to receive only one type of benefit, once he elected caregiver benefits, the income replacement benefits were no longer 'available' to him.

The appeal was allowed and the defendants were not permitted to deduct the income replacement benefits.

The appellants, representative plaintiffs in a certified class action, appealed a motion judge's decision dismissing their request to amend the list of common issues to include questions regarding constructive trust, disgorgement, and waiver of tort.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that it would be unfair to add a potential new cause of action at this late stage of the proceedings.

The Court noted that the remedies of constructive trust and disgorgement remain available to the appellants at the second stage of the trial, as originally contemplated in the certification order.

The appellants (Developers) appealed a trial judgment finding them indebted to the respondent (Contractor), allowing the Contractor to allocate advance payments to older invoices, and finding the Developers in breach of their trust obligations under s. 7 of the Construction Lien Act.

The Contractor cross-appealed the disallowance of certain invoices and the failure to grant equitable relief.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the Developers owed some debt, that the Contractor properly allocated the advances after making reasonable inquiries, and that the Developers breached their trust obligations by commingling funds.

The cross-appeal was allowed in part to permit recovery on specific basement subexcavation invoices supported by approved purchase orders.

The plaintiff suffered a cracked sacrum after a bed collapsed at the defendant hospital.

She later developed fibromyalgia, which the trial judge found was caused by the hospital fall despite an intervening car accident.

The trial judge awarded over $3 million in damages, including approximately $1.7 million for future care costs based on expert reports.

On appeal, the defendants challenged the liability finding and the future care costs.

The Court of Appeal upheld the liability finding, noting the trial judge properly applied foreseeability and the thin-skull rule.

However, the Court allowed the appeal in part regarding damages, reducing the future care costs award by $374,640.65 because several home maintenance items lacked evidentiary support.

The appellant underwent breast augmentation surgery and subsequently experienced complications.

She consulted another plastic surgeon who advised her that the initial surgery was performed below the standard of care and that she should contact a lawyer.

The appellant delayed commencing her action until she received a formal written expert report, by which time the one-year limitation period under the Health Professions Procedural Code had expired.

The Court of Appeal upheld the motion judge's summary judgment dismissing the claim, finding that the appellant had discovered the material facts necessary to base an allegation of negligence during her initial consultation with the second surgeon, and did not need to wait for a formal written opinion or her medical charts to discover her claim.

The appellants appealed the judgment of Justice Tausendfreund of the Superior Court of Justice dated November 4, 2009.

The Court of Appeal for Ontario dismissed the appeal without costs in a brief endorsement.

The appellants appealed an order granting a mistrial in a motor vehicle accident damages trial.

The trial judge ordered a mistrial after finding that the cumulative effect of inflammatory comments made by the appellants' trial counsel during closing arguments impaired trial fairness and could not be cured by a correcting instruction.

The trial judge also declined to decide the issue of damages herself, preserving the respondents' right to a jury trial.

The Court of Appeal dismissed the appeal, deferring to the trial judge's assessment of the impact of counsel's statements and her decision to order a mistrial.

The appellants appealed the dismissal of their medical malpractice action arising from the death of the patient due to a pulmonary embolism following arthroscopic knee surgery.

The appellants argued the respondent orthopaedic surgeon was negligent in failing to warn the patient about the symptoms of a pulmonary embolism upon discharge.

The trial judge found the respondent met the standard of care, as the patient was not at a heightened risk of a pulmonary embolism at the time of discharge.

The Court of Appeal (majority) dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and application of the standard of care.

The defendant supplied a helicopter engine to the plaintiff under a commercial agreement containing a forum selection clause specifying Arizona as the exclusive jurisdiction.

After the helicopter crashed in Saskatchewan, the plaintiff sued in Ontario.

The motion judge dismissed the defendant's motion to stay the action, applying a forum non conveniens analysis.

The Court of Appeal allowed the appeal, holding that the motion judge erred by treating the forum selection clause as merely one factor in a forum non conveniens analysis.

Under the strong cause test, a forum selection clause in a commercial contract must be enforced unless exceptional circumstances are shown.

Following the outcome of the appeals, the court awarded costs to the respondent in the amount of $43,000, inclusive of GST and disbursements.