Robert E. Somerleigh

The plaintiffs, Daniele Marthe Hutterli and Charles Hutterli, brought a medical negligence action against Dr. Douglas Scott, alleging he failed to meet the standard of care in assessing Mrs. Hutterli's ankle injury.

Mrs. Hutterli sustained an ankle fracture but was misdiagnosed with a sprain, leading to delayed treatment.

The plaintiffs claimed increased cartilage damage and higher risk of osteoarthritis due to the delay.

The court found that Dr. Scott met the standard of care in applying the Ottawa Ankle Rules, despite the misdiagnosis, concluding it was an error in judgment, not negligence.

Furthermore, the court found the plaintiffs failed to prove causation or damages, as there was no evidence that the alleged harm (increased cartilage damage, osteoarthritis risk) was caused by the delay, rather than the original fracture, or that a better outcome would have resulted.

The action was dismissed.

The defendants brought a motion for security for costs against the non-resident plaintiff in a slip and fall action.

The court found that the defendants' cost estimates were excessive and projected partial indemnity costs at under $10,000.

The court dismissed the motion, concluding that the plaintiff had sufficient assets in Missouri, a reciprocating jurisdiction where an Ontario costs award could be enforced, to satisfy any potential costs order.

The appellant, a unionized employee of Lakehead District School Board, sought long-term disability benefits following a motor vehicle accident.

The respondent Sun Life Assurance Company of Canada, which administered the benefits under contract with the school board, denied her claim.

The appellant commenced an action against Sun Life seeking a declaration of total disability and an order for payment of benefits.

The motion judge dismissed the action for lack of jurisdiction, finding the dispute arose from the interpretation and administration of the collective agreement.

The Court of Appeal upheld this decision, holding that the dispute was arbitrable under the collective agreement and that Sun Life, as a mere agent of the school board, lacked standing to be sued directly.

The appellant's remedy lay in arbitration against the school board.

The defendants brought a motion for leave to appeal to the Divisional Court from an order denying their request to file a jury notice late.

The court applied the two-part test under Rule 62.02(4) of the Rules of Civil Procedure, considering whether there was a conflicting decision or good reason to doubt the correctness of the order and if the matter was of general importance.

The court found no conflicting decision, as the motion judge had correctly applied the established two-factor test for late jury notices (delay and prejudice) and was entitled to deference on factual findings.

Furthermore, the court found no good reason to doubt the correctness of the motion judge's decision, which had determined that the delay in filing the jury notice was unconscionable and would cause prejudice to the plaintiff by delaying the trial.

The motion for leave to appeal was dismissed.

The defendants sought leave to amend their statement of defence to include a waiver defence, leave to file a jury notice late, and security for costs from the non-resident plaintiff.

The court granted leave to amend the statement of defence on terms that the defendants pay the plaintiff's reasonable substantial indemnity costs for additional steps required due to the amendment.

However, the court denied leave to file a jury notice late, finding the delay unconscionable and prejudicial to the plaintiff.

The motion for security for costs was deferred pending further affidavit evidence from both parties regarding costs and the enforceability of an Ontario judgment in Missouri.

This medical malpractice action concerned whether Dr. Henry Fairley breached the standard of care by performing a hysterectomy on Francine Breton in 2010, five years after a previous subtotal hysterectomy by another doctor.

The plaintiff alleged the surgery was unnecessary and resulted in a bladder injury.

The court found that Dr. Fairley had a reasonable clinical basis to proceed with the surgery, based on the plaintiff's persistent symptoms, imaging reports suggesting residual uterine tissue, and the previous pathology report confirming adenomyosis.

The court dismissed the plaintiff's action, concluding that Dr. Fairley met the standard of care.

The plaintiffs, an auto recycling business and its owner, sued the lead investigator and the Thunder Bay Police Services Board for negligent police investigation after being acquitted of multiple counts of possession of stolen property.

The court found the police investigation was negligent because the officers failed to familiarize themselves with auto recycling industry practices, misunderstood the relevant law, ignored and failed to document innocent explanations, and failed to secure seized property.

The court awarded the plaintiffs $1,581,116.62 in damages, including compensation for lost business income, legal fees, property damage, and non-pecuniary losses for reputational harm and emotional distress.

A 90‑year‑old grocery store patron was struck by another customer pushing an overloaded cart and suffered catastrophic injuries resulting in quadriplegia before his death several years later.

The estate and spouse sued the patron and the store operators alleging occupiers’ liability and negligent failure to control the use of overloaded carts.

The court held the store owed a duty under the Occupiers’ Liability Act but had reasonable safety policies and no employee had sufficient opportunity to observe and prevent the hazardous conduct.

Liability was found entirely against the patron who pushed the cart without being able to see where he was going.

Damages for general damages, pecuniary loss, and Family Law Act loss of care and companionship were awarded against the patron, while the claims against the store defendants were dismissed.

The plaintiffs brought a medical negligence action alleging that a hospitalist physician negligently prescribed excessive doses of hydromorphone (Dilaudid) to a patient who had previously received morphine and was allegedly opioid‑naive.

The patient died several hours after receiving multiple doses of Dilaudid, and the coroner’s report listed the cause of death as acute mixed hydromorphone and morphine intoxication.

The court heard competing expert evidence regarding opioid equivalency ratios, titration practices, and whether the physician’s 5 mg dosing fell below the standard of care for a hospitalist managing severe uncontrolled pain.

The court preferred the defence experts’ evidence that the dosing decision was a reasonable clinical judgment given the patient’s persistent severe pain and lack of response to morphine, and that reliance on experienced nurses for monitoring was appropriate.

The court also found the clinical course inconsistent with opioid toxicity and concluded the plaintiffs had not proven causation on a balance of probabilities.

The negligence claim was dismissed.

The plaintiff underwent an ambulatory phlebectomy for a varicose vein near her ankle, during which the defendant physician inadvertently removed a 20.5 cm segment of her sural nerve, causing permanent damage.

The plaintiff sued for medical malpractice, alleging negligence in both the recommendation of the procedure and its execution.

The court found that while recommending the procedure met the standard of care, the execution of the procedure was negligent based on circumstantial evidence, including the amount of force required to avulse the nerve and the physician's failure to recognize he had hooked the nerve.

The plaintiff was awarded agreed-upon damages of $128,975.00.

The moving party sought costs after bringing a motion to dismiss the action against it in a motor vehicle negligence claim.

The plaintiff had initially included the moving party as a defendant due to a potential vicarious liability theory but indicated willingness to discontinue once insurers confirmed that dismissal would not prejudice coverage claims.

The court found the plaintiff acted reasonably and did not prolong the proceedings.

However, the court concluded that one insurer’s delay in consenting contributed to additional procedural steps.

Costs were awarded to the moving party on a partial indemnity basis and apportioned primarily against that insurer.

The plaintiffs brought a medical malpractice action alleging that two obstetrician-gynecologists breached the standard of care during a laparoscopic assisted vaginal hysterectomy, resulting in the transection of the plaintiff’s ureter.

The court considered expert medical evidence regarding the standard of care, the surgical technique required to protect the ureter, and whether circumstantial evidence could support an inference of negligence.

The court held that ureteric injury can occur even when surgeons exercise appropriate care and that the evidence did not establish that the surgeons deviated from accepted surgical practice.

The court accepted the defence explanation that the injury resulted from aberrant anatomy and that the procedure was performed with appropriate supervision and technique.

The plaintiffs failed to prove negligence on a balance of probabilities.