Risa M. Kirshblum

The plaintiff underwent a laparoscopic-assisted vaginal hysterectomy performed by the defendant gynecologist.

Following the surgery, the plaintiff experienced incontinence and was diagnosed with a vesicovaginal fistula caused by two sutures inadvertently placed in her bladder.

The parties agreed on damages prior to trial, leaving only the issue of liability.

The court found that the defendant failed to adequately mobilize the bladder during the procedure, leading to the inadvertent suturing.

The court concluded that the placement of the sutures was the result of negligence rather than non-negligent surgical misadventure, and granted judgment for the plaintiff.

During a medical malpractice trial, the defendant physician moved for production of three expert reports obtained by the plaintiff's former solicitors in a related solicitor's negligence action.

The plaintiff opposed, asserting solicitor-client or litigation privilege.

The court determined the reports were subject to litigation privilege, not solicitor-client privilege, and that the plaintiff had implicitly waived this privilege by commencing the solicitor's negligence action and failing to challenge the former solicitor's defence pleading, which referenced these reports as central to denying negligence.

The motion for production was granted.

The Plaintiffs in a medical negligence action brought a motion seeking leave to admit an expert's affidavit and discovery transcripts of two family members (one deceased, one unwell) into evidence at trial.

The court dismissed the request to admit the expert's affidavit, finding it did not comply with Rule 53 requirements for expert reports and would unfairly deprive the defence of cross-examination.

However, the court granted leave to admit the discovery transcripts of the family members under Rule 31.11(6), subject to the Plaintiffs immediately quantifying their Family Law Act claims and providing the family doctor's notes for the relevant period to the defence, to ensure fairness given the inability of the family members to testify.

Following a successful motion compelling answers to undertakings and refusals from discovery, the defendant sought costs on a substantial indemnity basis.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, including the conduct of counsel and the proportionality of the costs sought.

The court criticized the responding party’s failure to comply with undertakings, delays in responding, and counsel’s conduct during the motion.

Although the moving party sought substantial indemnity costs exceeding $11,000, the court reduced the award to partial indemnity in light of proportionality and the plaintiff’s financial circumstances.

Costs were fixed at $8,728.22 payable to the defendant.

The applicant, a university student with a disability, alleged discrimination in services when the university denied her petition to retroactively drop a course without academic penalty.

The applicant failed to attend the scheduled Case Resolution Conference but submitted written materials, which the Tribunal accepted as a request to determine the application in writing.

The Tribunal found that while the applicant had a documented disability, she failed to provide medical evidence establishing a connection between her disability and her inability to withdraw from the course by the deadline or to file her petition within the required one-year period.

The application was dismissed.

The appellant, RBC Dominion Securities, sued its former branch manager and several investment advisors who left en masse to join a competitor, Merrill Lynch.

The trial judge found the branch manager breached his implied contractual duty of good faith by orchestrating the departure, and awarded substantial damages for loss of profits.

The trial judge also awarded damages against the investment advisors for unfair competition during the notice period.

The Court of Appeal overturned these awards.

The Supreme Court of Canada allowed the appeal in part, reinstating the damages against the branch manager for breach of good faith, but upholding the Court of Appeal's decision that the investment advisors were not liable for unfair competition during the notice period.

The Member appealed the revocation of its membership in the Vintners Quality Alliance Ontario.

The revocation followed two Provincial Offences Act convictions for selling mislabelled wine and subsequent audits revealing continued non-compliance.

The Member argued the mislabelling resulted from employee error and initial verbal approval.

The Board found the Member violated section 10 of the VQA Act and upheld the membership revocation, noting the bylaws mandate revocation upon conviction and continued contravention.

The appellants appealed an order interpreting Articles 5 and 8.09 of a Companies' Creditors Arrangement Act plan of compromise.

The Court of Appeal dismissed the appeal, finding that the motion judge's interpretation was reasonable, fostered a fair and efficient administration of the plan, and was entitled to deference given his familiarity with the complex negotiating process.

A claim for rectification advanced for the first time on appeal was also dismissed for lack of an evidentiary basis.

The Ontario Teachers' Federation (OTF) appealed a decision declaring its By-law X invalid.

By-law X required its affiliates, including the Ontario Secondary School Teachers' Federation (OSSTF), to collect and remit membership fees to OTF, and allowed OTF to suspend an affiliate for default.

The OSSTF had withheld a portion of the fees designated for the Canadian Teachers' Federation.

The Court of Appeal held that sections 1-5 of By-law X, which established the fee collection mechanism, were validly enacted under the Corporations Act as a matter of internal management.

However, section 6, which permitted the suspension of an affiliate, was ultra vires because it interfered with the OSSTF's statutorily protected role within the OTF.

The appeal was allowed in part.