Paul J. Pape

The appellant hospital appealed a trial judgment awarding the respondent doctor $3,000,000 in damages for the bad faith revocation of his hospital privileges.

The doctor cross-appealed the damage assessment, arguing it should have been higher.

The Court of Appeal dismissed both the appeal and the cross-appeal.

The Court found ample evidence to support the trial judge's finding that the hospital acted in bad faith and for an oblique motive when it summarily revoked the doctor's privileges.

On damages, the Court held that while the doctor failed to produce readily available evidence of his income loss, the trial judge was entitled to assess damages based on the proven magnitude of the loss, and was justified in reducing the claim by approximately half.

The appellant was rendered a tetraplegic after diving into shallow water at a provincial park and striking his head.

The trial judge dismissed the action, finding the appellant was contributorily negligent, failed to prove he hit a sandbar rather than the lake bottom, and that the sandbars were not a hazard under the Occupiers' Liability Act.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made fundamentally inconsistent findings on factual causation, disregarded relevant expert and eyewitness evidence, and misapprehended the evidence regarding the absence of previous injuries at the park.

Class counsel appealed an order fixing their fees at $6.3 million plus GST, which was approximately half the amount agreed upon in their contingency fee agreements.

The motion judge had reduced the base fee by 25% and applied a multiplier of 2.6, finding the requested $12 million fee excessive in relation to the $40 million settlement recovery.

The Court of Appeal dismissed the appeal, holding that the motion judge applied the proper test, considered all relevant factors, and made no palpable and overriding error in determining a fair and reasonable fee.

The appellant was bitten by the respondent's dog while canvassing door-to-door.

At trial, a jury found the appellant 100% at fault for the incident, noting he ignored warnings from the respondent and the dogs.

The appellant appealed, arguing the trial judge erred in her jury charge regarding apportionment of liability.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions and concluding it was open to the jury under section 2(3) of the Dog Owner's Liability Act to find the appellant entirely at fault.

The appellant anaesthetist appealed a trial judgment finding her liable for medical negligence after a patient suffered hypoxia, a heart attack, and permanent brain damage following premature extubation after gastric bypass surgery.

The appellant argued the trial judge demonstrated a reasonable apprehension of bias and made palpable and overriding errors in his factual findings, particularly regarding expert evidence and causation.

The Court of Appeal dismissed the appeal, finding no evidence of bias and concluding that the trial judge's factual findings were supported by the evidence and free of palpable and overriding error.

The appellants' farm property was destroyed by fire.

They sued the respondent volunteer firefighters and township for negligence.

The trial judge found the respondents breached a professional standard by failing to conduct an adequate size-up of the fire scene, but dismissed the action, concluding their fire attack plan was reasonable and the destruction was inevitable.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge's conclusions on breach and reasonableness were contradictory, and his causation analysis was materially incomplete because it relied on a theory of inevitability whose factual foundation was disproven at trial.

The respondents brought a motion requesting the Court of Appeal vary its order for a new trial to an order remitting the matter to the trial judge.

The Court declined to grant the relief, finding it would not be appropriate to ask the trial judge to revisit her conclusions on the critical causation issue based on the Court's reasons.

The motion was dismissed without costs.

The appellants appealed a trial judgment awarding the respondent damages for breach of a consulting and management contract.

The appellants argued that one of the corporate defendants was not a party to the contract and that the trial judge erred in calculating the damages period.

The Court of Appeal held that the non-party corporation was bound by the contract through its conduct and acceptance of services.

However, the Court found that the trial judge made a palpable and overriding error in interpreting the contract's term.

The Court allowed the appeal in part, reducing the damages award to reflect a five-year initial term.

The appellant, a Senior Vice-President at the respondent bank, appealed the dismissal of his constructive dismissal claim.

The claim was based on a 13% reduction in his variable compensation package between 2001 and 2003.

The Court of Appeal upheld the trial judge's findings that the appellant's compensation was not fixed, that the bank was entitled to align his compensation with other executives, and that the reductions did not constitute a fundamental breach of the employment contract.

The appeal was dismissed.

The respondents sued the appellant hospital and several doctors for medical malpractice following the birth of their daughter, who suffered severe brain damage due to asphyxia during labour.

The trial judge dismissed the claims against the doctors but found the hospital vicariously liable for its nurses' failure to properly monitor the fetal heart rate between 6:30 and 7:00 p.m.

The trial judge inferred that proper monitoring would have detected the asphyxia, leading to an expedited delivery that would have spared the child's injuries.

The Court of Appeal allowed the hospital's appeal and ordered a new trial, finding that the trial judge misapplied the law of causation by using a 'robust and pragmatic approach' to infer causation without reviewing and making necessary findings on conflicting expert evidence regarding whether the earlier period of asphyxia was actually detectable by intermittent auscultation.

The respondent doctor prescribed Accutane, a teratogenic drug, to the mother of the appellant child, relying on the father's 4.5-year-old vasectomy as birth control.

The vasectomy failed, the mother became pregnant, and the child was born with severe disabilities.

The child sued the doctor for negligence.

The Court of Appeal held that a doctor does not owe a duty of care to a future, unconceived child of a female patient when prescribing medication, as recognizing such a duty would create an impossible conflict of interest between the best interests of the future child and the best interests of the patient.

The appeal was dismissed.

The appellant was severely injured when she lost control of her vehicle after hitting the respondent's dog on a country road.

At trial, a jury found the respondent 35% responsible and the appellant 65% contributorily negligent, assessing damages accordingly.

The appellant appealed the jury's findings on contributory negligence, apportionment of liability, and damages, arguing that the jury relied on unreliable evidence from child witnesses and was misdirected on mitigation.

The Court of Appeal dismissed the appeal, finding that the trial judge properly instructed the jury and that the jury's verdict was not so plainly unreasonable and unjust as to warrant appellate interference.

The plaintiffs were riding a tandem bicycle downhill when they lost control, struck an embankment, and suffered severe injuries, resulting in the husband's death.

The trial judge found the defendant municipality entirely liable for the accident due to road disrepair and inadequate signage.

On appeal, the defendant argued the trial judge erred in admitting expert evidence beyond the expert's qualifications and in failing to find contributory negligence.

The Court of Appeal held that while the expert should not have testified on matters outside his expertise, the defendant suffered no prejudice.

However, the Court found the trial judge ignored evidence of the husband's excessive speed and failure to keep a proper lookout, and apportioned liability 60% to the defendant and 40% to the plaintiffs.

The appellant sued the respondent bottled water supplier for psychiatric injury after finding dead flies in an unopened replacement bottle of water.

The trial judge awarded damages, but the Court of Appeal overturned the decision.

The Supreme Court of Canada dismissed the appeal, holding that while the respondent owed a duty of care and breached it, the damage was too remote.

The Court established that for psychiatric injury to be compensable in negligence, it must be reasonably foreseeable that a person of ordinary fortitude would suffer serious injury from the breach.

Mylex Ltd. appealed a trial judgment finding it liable in contract and tort for failing to meet delivery dates and providing poor quality ready-to-assemble furniture to Magnussen Furniture Inc. Magnussen cross-appealed the damages and costs awards.

The Court of Appeal found that while the trial judge erred in finding an 'overall contract' existed, this did not affect the ultimate liability finding based on breached purchase orders and negligence.

The Court upheld the trial judge's assessment of damages, which limited lost profits to a two-year period due to contingencies, and affirmed the discretionary costs award.

Both the appeal and cross-appeal were dismissed.

The appellants appealed a trial judgment dismissing their medical malpractice action.

The trial judge found that the obstetrician negligently failed to obtain informed consent for a mid-forceps delivery, which caused the infant's brachial plexus injury and brain damage.

However, the trial judge concluded that even with proper disclosure, the doctor would have recommended the forceps delivery and the mother would have consented.

The Court of Appeal dismissed the appeal, holding that the trial judge's factual findings on causation were supported by the evidence and did not amount to palpable and overriding error.

The appellant obstetrician prescribed the fertility drug Clomid to the respondent mother, who subsequently gave birth prematurely to twin girls with severe disabilities.

The jury found the appellant negligent for failing to properly inform the mother of the risks of twinning and premature birth associated with Clomid, and that she would not have taken the drug if properly informed.

The trial judge held that the twins had a valid cause of action against the appellant and that the parents could recover future care costs for the twins beyond the age of 18.

On appeal, the Court of Appeal upheld the jury's verdict on causation and the parents' entitlement to future care costs.

However, the Court allowed the appeal regarding the twins' claims, holding that the appellant owed no duty of care to the unborn children when prescribing a fertility drug to the mother, as his duty was solely to provide the mother with sufficient information to make an informed choice.

The appellants appealed the dismissal of their motion to certify a class action against the respondent bank for allegedly charging undisclosed and unauthorized fees on foreign currency credit card transactions.

The motion judge had refused certification on the basis that compensatory damages could not be determined on a class-wide basis, as it would require individual assessments of how each cardholder would have behaved had the fees been disclosed.

The Court of Appeal allowed the appeal, finding that the motion judge erred in applying a tort-like approach to assessing damages for breach of contract.

The Court held that an aggregate assessment of damages was possible under section 24 of the Class Proceedings Act, 1992, and that a class proceeding was the preferable procedure.

The appellant mother purchased a used pool slide and asked the respondent pool store if it was 'okay' to install it on her 4-foot-deep aboveground pool.

The store employees assured her there would be 'no problem' but failed to warn her of the risk of catastrophic injury if the slide was used improperly in shallow water.

The appellant daughter used the slide, entered the water head first, and was rendered quadriplegic.

The Court of Appeal allowed the appeal, finding the pool store breached its duty of care by failing to warn of the non-obvious danger, and that this failure caused the injury.

The daughter was found 20 per cent contributorily negligent for ignoring her mother's instructions to slide feet first.

The appellants appealed a trial judgment holding them jointly and severally liable for $105,647.98 in unpaid legal fees owed to the respondent law firm.

The trial judge found that the appellants, who were defendants in the underlying action, colluded with the plaintiffs (the law firm's clients) to reach a secret settlement designed to defeat the law firm's claim for its fees.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellants knew of the outstanding fees and that the settlement, which lacked commercial reasonableness, was structured specifically to avoid paying the law firm.