Ronald G. Slaght

In a medical negligence appeal arising from a hysterectomy that resulted in ureter injury, the Court of Appeal held that the trial judge erred in law in treating an alleged failure to disclose surgical risks as battery rather than informed consent governed by negligence principles.

Applying the informed consent framework from Reibl v. Hughes, the court found the reasons addressed only part of the subjective inquiry and failed entirely to consider the required objective test.

The court also held that the finding of negligent delayed diagnosis was unsupported because there was no evidence that the CT scan contemplated on July 7 would have revealed the ureter injury or that earlier diagnosis would have permitted immediate repair.

The appeal was allowed, a new trial ordered, and appeal costs fixed at $20,000.

Following a major apartment building fire, the owner and property manager were found liable as one defendant.

The appellant insured both the owner and property manager, while the respondent insured only the property manager.

After the respondent paid the full excess claim to the tort plaintiffs, it sought to recover half the amount from the appellant.

The Court of Appeal upheld the trial judge's decision that the respondent was entitled to recover 50% from the appellant under the principles of equitable contribution and unjust enrichment, as the appellant retained an obligation to indemnify the owner.

The representative plaintiff in a certified securities class action sought court approval of a settlement, class counsel fees, and a modest honorarium under the Class Proceedings Act, 1992.

The proposed settlement required the defendants’ insurers to pay $2.25 million for distribution to class members alleging misrepresentations affecting publicly traded shares.

The court found the settlement fair, reasonable, and in the best interests of the class after considering the likelihood of success, litigation risks, and the absence of objections.

However, the court declined to approve the proposed cy près recipient because of connections between class counsel and the proposed organization, concluding that such links created an inappropriate indirect benefit to counsel.

The settlement and counsel fees were approved subject to the parties proposing a different cy près recipient.

The applicants, comprising 118 limited partnerships, sought judicial review of the Minister of Energy's directions to the Ontario Power Authority (OPA) to change the Feed-In Tariff (FIT) Program rules.

The applicants had submitted numerous applications under the original FIT Rules 1.0 and argued that the new FIT Rules 2.0 were applied retroactively, breached their legitimate expectations, and interfered with vested rights.

The Divisional Court dismissed the application, finding that the Minister's policy directions were subject to a reasonableness standard of review.

The court held that the applicants had no vested rights or legitimate expectations that the program rules would remain unchanged, as the FIT Program was a discretionary government policy initiative subject to modification.

The applicant requested an adjournment of the scheduled hearing dates on the basis of a work-related conflict and insufficient preparation time for his newly retained counsel.

The respondent opposed the request.

The Tribunal denied the adjournment, noting that the new counsel had almost three months to prepare and was assisted by a lawyer familiar with the file.

The Tribunal also found the work conflict could potentially be resolved if the hearing concluded early, and directed counsel to be prepared to address the relevance of a proposed witness's evidence.

The appellant sought to certify a class proceeding on behalf of York University students whose classes were disrupted by a 2008 strike, alleging breach of contract, breach of the Consumer Protection Act, and unjust enrichment.

The motions judge dismissed the certification motion, finding the pleadings failed to disclose a reasonable cause of action because the claims improperly interfered with the university's academic discretion.

The Divisional Court dismissed the appeal, upholding the motions judge's conclusion that the claims were barred by academic discretion and that the pleadings were insufficient to establish a contractual or statutory cause of action.

Tobacco producers commenced a proposed class action alleging that federal and provincial governments failed to enforce tobacco taxation and excise legislation, allowing contraband tobacco markets to flourish and causing economic losses to lawful producers.

The plaintiffs advanced claims in misfeasance in public office and negligence, asserting that public officials deliberately failed to enforce statutory regimes to placate certain communities.

The defendants moved under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the amended statement of claim for disclosing no reasonable cause of action.

The court held that the pleading failed to allege the essential elements of misfeasance in public office, including deliberate unlawful conduct and bad faith by specific officials.

It further concluded that the statutory schemes governing tobacco regulation did not create a private law duty of care owed to tobacco producers and that recognizing such a duty would improperly subject government policy decisions to tort liability.

The amended statement of claim was struck and the action dismissed.

The applicant brought a Request for an Order During Proceeding for the production of an internal adjudicator's notes regarding other students investigated in the same incident.

The respondent opposed production on the basis of privacy and relevance.

The Tribunal found that the applicant's request was based on an allegation of differential treatment during the investigation, which was not pleaded in his Application.

As the documents were not arguably relevant to the issues raised in the pleadings, the request for production was denied.

In long‑running commercial litigation concerning an alleged oral agreement granting the plaintiffs a 50% interest in a casino development project, the parties brought pre‑trial motions addressing potential conflicts of interest involving defence counsel and issue estoppel relating to alleged spoliation of evidence.

The plaintiffs clarified that their spoliation allegations were directed only at the defendants and not at defence counsel, and that they would not seek to call defence counsel as witnesses.

The court treated these statements as binding admissions and issued declarations preventing the plaintiffs from alleging misconduct, spoliation, or false statements by defence counsel at trial.

Remaining issues, including whether issue estoppel barred certain spoliation arguments, were left for determination by the trial judge.

After dismissing a municipal defendant’s motion for summary judgment in a procurement dispute, the court addressed the successful plaintiff’s claim for costs.

The plaintiff sought approximately $50,000 on a partial indemnity basis, while the defendant argued that $20,000–$25,000 would be reasonable.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court reduced several components of the claim.

Reductions were made for the junior counsel’s billing rate, duplication between counsel, and unnecessary expert evidence.

The court fixed costs at $30,000 all-inclusive payable by the defendant.

The defendant municipality brought a motion for summary judgment seeking dismissal of a procurement dispute arising from a waste haulage contract tender.

The plaintiff carrier alleged its bid was wrongly rejected as non‑compliant despite literal compliance with the tender terms and sought damages for lost profits.

The court held the motion record was inadequate and contained unresolved evidentiary conflicts regarding the interpretation of tender documents, the purpose of amendments to the request for quotation, and the municipality’s handling of clarification opportunities.

The court found that the summary judgment process would not provide a fair and just determination of the dispute.

A full trial was required in the interests of justice.

The successful appellant sought costs of the appeal and a stay motion.

The respondent and the Receiver argued that costs should be in the cause or paid from funds held in trust, citing special circumstances including the matter returning to the Superior Court and the Receiver managing the property without rent payments.

The Court of Appeal found no reason to depart from the usual rule that a successful party is entitled to costs forthwith, and awarded costs to the appellant payable jointly and severally by the respondent and the Receiver.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The appellant estate appealed a trial judgment awarding damages for medical malpractice following a fatal infection caused by a dislodged feeding tube.

The trial judge found the surgeon breached the standard of care by failing to suture the jejunum to the abdominal wall, relying on expert opinion interpreting the operative notes.

The Court of Appeal allowed the appeal, holding that the trial judge erred in preferring expert opinion over the direct evidence in the subsequent operative report, which clearly indicated the jejunum was attached.

The action was dismissed.

The appellant appealed a decision denying certification of a class proceeding.

The appellant sought to proceed with the appeal based on a proposed Amended Statement of Claim that was not before the motions judge.

The Divisional Court held that it could only review the decision based on the original record and was not the proper forum for a first-instance decision on certification based on new pleadings.

Given the appellant's intention to seek an amendment regardless of the appeal's outcome, the appeal was deemed moot and stayed, with directions for the appellant to bring a motion to amend and certify in the court below.

The appellants, a law firm and its partner, appealed a partial summary judgment finding that a cause of action for solicitor's negligence had been validly assigned to the respondent, Gentra Canada.

The Court of Appeal held that a claim for solicitor's negligence is assignable if the assignee has a legitimate commercial interest, departing from older jurisprudence.

The Court found the assignment language was broad enough to include the claim and that Gentra Canada could sue in its own name without joining the assignor.

However, the appeal was allowed with respect to a subsidiary company that was not a party to the assignment.

The plaintiffs, former executives and shareholders of Med-Eng, sued the company and its directors for oppressive conduct regarding a share repurchase.

After Med-Eng was acquired by Allen-Vanguard, the plaintiffs commenced a new action against the original defendants and added defendants (the acquirer, offeree shareholders, and escrow agent), seeking a constructive trust over an escrow fund.

The motions judge struck the new action as an abuse of process and for disclosing no reasonable cause of action against the added defendants.

The Court of Appeal dismissed the appeal, finding the new action circumvented the rules for amending pleadings and adding parties, and that no cause of action in unjust enrichment, breach of fiduciary duty, or resulting trust was pleaded against the added defendants.

The appellants appealed a trial judgment finding them liable for defamation, intentional interference with economic relations, and inducing breach of contract arising from the peremptory removal of the respondent from a military aerospace consulting project.

The Court of Appeal clarified the elements of intentional interference with economic relations and inducing breach of contract, adopting the House of Lords' approach in OBG v. Allan.

The court held that unlawful means for intentional interference must be directed at a third party and not directly actionable by the plaintiff.

While the trial judge erred in using defamation directly actionable by the plaintiff as unlawful means, the court upheld liability based on a conspiracy against a third party and breach of contract.

The court also confirmed that inducing breach of contract requires an actual breach, not mere frustration.

The appeal was dismissed and the damages awards were upheld.

The plaintiff sought leave to appeal a motion judge's order certifying a class proceeding in part.

The motion judge had declined to certify claims for fraudulent misrepresentation, negligent misrepresentation, and civil conspiracy, and had restricted the class to Canadian purchasers.

The Divisional Court granted leave to appeal solely on the issue of the civil conspiracy claim, finding conflicting decisions and good reason to doubt the correctness of requiring the plaintiff to plead special damages at the certification stage.

Leave to appeal was denied for the misrepresentation claims and the class definition.

The appellant appealed an order of the Superior Court of Justice regarding the interpretation of an agreement.

The Court of Appeal dismissed the appeal, agreeing with the application judge's analysis that Sections 8 and 2 of the agreement must be read together.

The court found the application judge's reasoning sufficient to dispose of the interpretative issue in favour of the respondents.