Paul J. Pape

The appellants appealed a jury award of over $1.6 million in damages arising from a motor vehicle accident.

They argued the trial judge improperly interfered with cross-examination, erred in admitting a medical report during a life-care planner's testimony, and that the damages awarded were inordinately high.

The Court of Appeal dismissed the appeal regarding the trial judge's conduct and evidentiary rulings, finding no unwarranted interference and a proper exercise of discretion.

The court upheld the general damages and housekeeping awards, but reduced the future income loss award by $140,000 on consent to account for the respondent's mandatory retirement age from the military reserve.

The appellant appealed the dismissal of her counterclaim and a subsequent motion to set aside the judgment.

At trial, the appellant asked the trial judge to recuse himself because his former law firm had represented one of the defendants over ten years prior.

The judge refused, noting he had no personal involvement in the file and a significant amount of time had passed.

The appellant and her counsel then left the courtroom, leading the judge to dismiss the counterclaim.

Days later, the judge realized he had a past association with another defendant and informed the parties, but later dismissed a motion to set aside the judgment as he was functus officio.

The Court of Appeal dismissed the appeals, finding no reasonable apprehension of bias and noting that the appellant's abandonment of the trial left the judge with no other option but to dismiss the counterclaim.

The appellant commercial tenant appealed an order granting relief from forfeiture on strict terms.

The tenant argued that the landlord's notice of default did not comply with s. 19(2) of the Commercial Tenancies Act and that the terms of the relief, which required extensive repairs and financial disclosure, were too strict.

The Court of Appeal dismissed the appeal, finding the notice of default sufficient and the terms of the discretionary relief appropriate and within the scope of the lease.

The appellants appealed a jury verdict that attributed 15% responsibility for a motor vehicle accident to the appellant driver and 85% to an unidentified driver.

The jury found the appellant negligent for failing to speed up and lacking defensive driving when an erratic driver approached from behind.

The Court of Appeal held that it was unreasonable to find negligence in the appellant's failure to speed up, as there was no evidence it would have avoided the accident.

The appeal was allowed, the jury verdict against the appellant was set aside, and 100% liability was attributed to the respondent.

In a CCAA proceeding, the appellant sought to enforce a Memorandum of Agreement to purchase the debtor's assets after missing a deadline.

The motion judge found the agreement had expired.

The respondents moved to quash the appeal on the basis that leave was required under s. 13 of the CCAA.

The Court of Appeal held that leave was required because the order was made under the CCAA.

The Court dismissed the appellant's cross-motion for leave to appeal, finding no basis to interfere with the motion judge's findings on expiration and estoppel, and concluding the proposed appeal lacked significance to the practice.

Following the release of the appeal decision, counsel requested clarification regarding the costs of the trial.

The Court of Appeal clarified its previous ruling, ordering that the respondent pay the costs of the action at trial, to be fixed by the trial judge, if demanded.

The plaintiff suffered a major depressive disorder and phobia after seeing a dead fly in an unopened bottle of water supplied by the defendant.

The trial judge awarded damages for psychiatric injury, finding the plaintiff's extreme reaction was due to his particular cultural background and sensibilities.

The Court of Appeal allowed the defendant's appeal and dismissed the action.

The Court held that in tort, psychiatric harm must be reasonably foreseeable in a person of normal fortitude and robustness.

The plaintiff's highly unusual reaction did not meet this objective test.

The Court also dismissed the contract claim, finding that psychiatric harm was not in the reasonable contemplation of the parties at the time the contract was formed.

The defendants appealed an order certifying a class action regarding defective blood glucose monitors.

The motion judge certified the action on the basis that the pleadings disclosed a cause of action in 'waiver of tort', seeking restitutionary remedies of constructive trust or disgorgement of profits rather than compensatory damages.

The Divisional Court dismissed the appeal, holding that the law regarding waiver of tort as an independent cause of action and the availability of the requested restitutionary remedies is unsettled.

Therefore, it was not plain and obvious that the plaintiffs' claims would fail, and the issues should be resolved on a full factual record at trial.

The appellant sued her former family law lawyer for negligence, alleging he failed to adequately protect her equalization claim against her husband, who was a known flight risk.

The trial judge dismissed the action, finding that while the lawyer breached the standard of care in some respects, his recommendation to settle was not an 'egregious error' and his delays did not cause the appellant's loss.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by applying the 'egregious error' test instead of the standard of reasonableness, and by using a segmented time grid analysis that failed to assess the lawyer's overall failure to advance the case to trial.

The defendant appealed a jury verdict in a personal injury action arising from a motor vehicle accident.

At trial, the judge excluded defence video surveillance evidence intended for impeachment, failed to provide a correcting instruction after the plaintiffs' counsel made an inflammatory closing address, and failed to fairly review the defence's medical evidence of malingering in the jury charge.

The Court of Appeal allowed the appeal, finding that the trial judge applied the wrong legal test for admitting impeachment evidence under Rule 30.09 and erred in his handling of the closing address and jury charge.

The cumulative effect of these errors resulted in a miscarriage of justice, necessitating a new trial.

The parties, equal shareholders in a land development company, reached a deadlock.

The trial judge ordered the company wound up and gave the appellant the first right to buy the respondent's shares at fair market value.

After the parties failed to agree on a price, the trial judge fixed the share value and ordered a descending auction if the rights of refusal were not exercised.

The Divisional Court set aside this order and directed a public auction.

The Court of Appeal allowed the appeal, finding that the trial judge erred by abandoning the valuation mechanism without notice, and the Divisional Court erred by removing the appellant's right of first refusal.

The matter was remitted to the trial judge.

The appellant appealed a trial judgment awarding the respondent over $4 million in damages for the lost opportunity to develop a shopping plaza after the appellant repudiated an oral agreement to be the anchor tenant.

The appellant argued the trial judge erred in finding an independent oral agreement, assessing damages, and failing to consider post-agreement conduct.

The respondent cross-appealed the trial judge's 50% reduction of its disbursements.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no palpable or overriding errors in the trial judge's factual findings or exercise of discretion.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.

The plaintiff suffered permanent vestibular toxicity after being treated with the antibiotic Gentamicin for a severe sinus infection.

At trial, the otolaryngologist was found liable for failing to properly monitor for ototoxicity and failing to emphasize the need for ongoing vigilance regarding symptoms.

The trial judge also granted a non-suit dismissing the action against the home care nurses (VON).

On appeal, the Court of Appeal overturned the finding of liability against the doctor, concluding there was no evidence that the two-to-three-day delay in discontinuing the medication caused the plaintiff's injuries.

The Court also rejected an alternative argument based on lack of informed consent, finding that a reasonable person in the plaintiff's position would have continued the medication.

The appeal against the VON was dismissed as no expert evidence established the standard of care for home care nurses.

Following an appeal decision, the parties provided a joint submission regarding the costs of the first and second trials.

The Court of Appeal issued supplementary reasons ordering that the costs of both prior trials be reserved to the judge presiding over the third trial, in accordance with the parties' agreement.

The appellant appealed an order enforcing Minutes of Settlement.

Under the settlement, the respondent was required to provide two quotes for hazardous waste management, and the appellant was to pay half of the lowest 'acceptable' price.

The Court of Appeal found that the quotes provided were shams, as the individuals submitting them did not carry on a legitimate hazardous waste management business and lacked the necessary licences and equipment.

The motion judge erred by focusing on whether the prices were reasonable rather than whether the quotes were acceptable.

The appeal was allowed and the order enforcing the settlement was set aside.

The infant plaintiff suffered severe brain injuries during birth following unsuccessful attempts by the defendant obstetrician to perform a forceps delivery in the labour room.

The trial judge found the obstetrician negligent for failing to transfer the mother to a delivery room where a c-section could be performed more quickly if the forceps failed.

The Court of Appeal allowed the obstetrician's appeal and ordered a new trial, finding that the trial judge erred by basing liability on a 'risks management' theory that was not pleaded or argued by the plaintiffs, and by using hindsight to impute knowledge of severe fetal distress to the obstetrician at the critical time.

The Court of Appeal issued a costs endorsement following an appeal.

The court made no order as to the costs of the motion before the motion judge, as no submissions were made and the issue was not raised at the Divisional Court.

The Divisional Court's costs order was maintained.

The court fixed the costs of the appeal at $10,000 each for the MFP respondents and the Bondy Riley respondents, inclusive of disbursements and GST.

The appellant appealed a trial judgment finding it liable for breach of contract and awarding damages to the respondent.

The Court of Appeal upheld the trial judge's finding that the appellant breached an implied term of the contract by unreasonably refusing to allow a pile of unmarketable mulch to be moved, thereby frustrating the respondent's performance.

The Court also upheld the damages assessment and the 30% reduction in damages, noting that while the trial judge erred in applying contributory negligence to a contract claim, the reduction was supportable on the basis of causation because the respondent failed to separate pulp from mulch.

The appellants commissioned an investigative report in preparation for a fraud action.

A senior official mistakenly believed a former lawyer for the appellants was still part of their legal team and sent him a copy of the report to review as a potential witness.

The appellants later added the lawyer's former firm as a defendant in the action without first retrieving the report.

When the appellants demanded the return of the report claiming litigation privilege, the lawyer refused.

The Court of Appeal held that while the initial disclosure did not waive privilege against the adversaries, the appellants lost the right to assert privilege over the document in the lawyer's hands once they sued his firm without first demanding its return.