Ryan Stewart Breedon

This addendum clarifies and amends a previous summary judgment ruling.

The court addressed five requests for amendment, largely granting those related to the scope of claims not pursued on summary judgment, legal costs for vacating a Certificate of Pending Litigation (CPL), and utility/maintenance costs for model homes.

The court affirmed its power to amend a ruling before it is finalized and rejected attempts to re-litigate factual findings.

The Applicant was catastrophically injured in a motor vehicle accident and sought $75,461.75 in attendant care benefits for services provided by his daughter, a child and youth worker.

The Insurer denied the claim.

The Arbitrator found that the daughter did not sustain an economic loss, her employment as a child and youth worker was not analogous to providing attendant care to her father, there was no legal obligation to pay her, and the services were not reasonable and necessary given the availability of other family members.

The claim for attendant care benefits was dismissed.

The applicant alleged that the respondent doctor sexually harassed her by unnecessarily exposing her breast during a physical examination for chronic pain.

The respondent doctor testified that examining the pectoralis muscles was medically necessary to assess her condition.

An expert witness in pain management supported the respondent's methodology as meeting the standard of practice.

The Tribunal found that the applicant failed to establish discrimination or harassment on the basis of sex, accepting the medical necessity of the examination.

Application dismissed.

This costs decision followed the dismissal of an appeal from a Consent and Capacity Board decision confirming involuntary patient status under the Mental Health Act.

The appellant had primarily pursued a Charter declaration against the respondent physician concerning the alleged wrongful administration of an injection, relief that had not been sought before the Board or identified in the notice of appeal.

The court held that approach was fundamentally unfair and awarded the respondent physician partial indemnity costs despite the appellant's vulnerable circumstances.

Costs were fixed at $3,000 all-inclusive, payable forthwith, and the Attorney General did not seek costs.

In a discovery motion arising from three related civil proceedings concerning an alleged subdivision development agreement, model homes, and a renovation claim, the moving parties sought answers to undertakings and refusals and leave to examine on an expert loss-of-profits report.

The court held that Rule 31.10 barred examination of the expert author, and that there was no express or implied right to discover a party on its delivered expert report absent exceptional circumstances and clearly identified holes in the expert's analysis.

Relying on proportionality and accessibility principles, the court rejected what would amount to an end run around the expert discovery rules.

The court nevertheless ordered re-attendance to answer outstanding discovery matters, a further and better affidavit of documents, an adjournment of the trial, and a judicial pretrial after the contemplated summary judgment motion.

Appeal from the Consent and Capacity Board arising from a finding that the appellant met the criteria for involuntary patient status under the Mental Health Act.

The appellant no longer challenged the involuntary admission criteria but sought Charter relief based on an alleged non-consensual injection administered while detained, including a declaration under s. 7 and rescission of a certificate of renewal nunc pro tunc.

The court held the declaration could not be granted because it had not been properly raised before the Board or in the notice of appeal and would be procedurally unfair on the existing record.

The rescission issue was moot because the appellant had been discharged and the certificate had expired.

In any event, the requested remedy lacked the necessary nexus to the statutory issue before the Board.

The appellants appealed a decision dismissing their medical negligence action as statute-barred under s. 38(3) of the Trustee Act.

The action was commenced more than two years after the deceased's death.

The appellants argued the limitation period should be tolled due to fraudulent concealment by the respondent hospital and doctors regarding the deceased's INR results.

The Divisional Court dismissed the appeal, finding that the statement of claim and affidavit evidence did not plead facts sufficient to establish fraudulent concealment, but rather attempted to assert discoverability, which does not apply to s. 38(3).

Following a medical negligence trial in which the plaintiffs were unsuccessful in establishing a causal connection between breaches of the standard of care and a patient’s death following a caesarean section, the defendant hospital sought costs of $272,000.

The plaintiffs included the deceased’s spouse and minor children represented by a litigation guardian.

Although the plaintiffs had declined a settlement offer and the defendants had succeeded at trial, the court exercised its discretion under s. 131 of the Courts of Justice Act to deny a costs award.

Considering the plaintiffs’ circumstances, the public nature of the defendant institution, and broader access to justice concerns, the court held that imposing the full costs sought would be inequitable.

The defendants brought a motion under Rule 21.01(1)(a) of the Rules of Civil Procedure seeking dismissal of a medical negligence action arising from the death of a patient in hospital.

The plaintiffs commenced the action more than two years after the deceased’s death and argued that discoverability and fraudulent concealment should extend the limitation period because the alleged negligence was not discovered immediately.

The court held that s. 38(3) of the Trustee Act imposes a strict two‑year limitation period running from the date of death with no discoverability exception.

As the action was commenced outside that period, the estate’s claim was statute‑barred.

The derivative claims under the Family Law Act were also barred.

The plaintiffs brought a medical malpractice action following the death of a mother from postpartum hemorrhage and disseminated intravascular coagulation (DIC) hours after a caesarean section.

The plaintiffs alleged that the nurses, anaesthesiologist, and obstetricians breached the standard of care by failing to recognize and treat the bleeding earlier.

The court found that while the anaesthesiologist breached the standard of care by delaying notification to the obstetricians of the patient's deteriorating condition, this delay did not cause the patient's death.

The court concluded that even if the decision to operate had been made earlier, the patient would still have developed DIC and the fatal blockage would not have been prevented.

The action was dismissed without costs.

During a jury trial arising from a motor vehicle accident, the defendant moved for a determination that the plaintiff’s claim for non‑pecuniary damages was barred under s. 267.5(5) of the Insurance Act.

The court considered whether the plaintiff sustained a permanent, serious impairment of an important physical function, the statutory threshold required to recover such damages.

After reviewing medical evidence, credibility findings, and the plaintiff’s post‑accident activities, the court concluded that the plaintiff did not establish a permanent impairment and, in any event, any impairment was neither important nor serious.

The judge also noted the modest jury award for pain and suffering as consistent with the evidentiary record.

The plaintiff was therefore barred from recovering non‑pecuniary damages.

The appellant orthopaedic surgeon appealed a trial judgment finding him negligent in his post-operative treatment of the respondent's fractured femur.

The trial judge found the appellant breached the standard of care by scheduling a follow-up appointment six weeks later instead of monitoring the patient closely, which led to the femur healing in a deformed position requiring invasive surgery.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on standard of care, causation, and the assessment of damages for future loss of income.

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

The appeal turned on whether the respondent doctor met his disclosure obligations before the appellant elected to have heel surgery.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion that the doctor provided sufficient information for informed consent was reasonably supported by the evidence.

The applicant, the president of the Association of Professional Engineers of Ontario, brought an application for judicial review of a decision by the Association's Council to accept the resignation of a councillor.

The councillor had submitted an unequivocal resignation via email but later attempted to retract it.

The Divisional Court dismissed the application, holding that at common law, the resignation of a director of a corporation without share capital is effective upon delivery and does not require acceptance by the corporation.

Furthermore, once delivered, the resignation cannot be withdrawn without the consent of the remaining directors.

The appellant appealed a costs decision of the Discipline Committee of the Association of Professional Engineers of Ontario.

The Committee had dismissed a complaint regarding the appellant's election campaign material but denied his request for costs, finding the commencement of proceedings was not unwarranted.

The Divisional Court held that although the Committee erred in its view of what the Complaints Committee knew, this error did not render the decision unreasonable, as the election material could still reasonably be viewed as crossing the line into unprofessional conduct.

The appeal was dismissed.

The appellants appealed a decision of the respondent's Discipline Committee denying them the costs of a hearing.

The appellants argued that the Complaints Committee's referral of the matter to a hearing was unwarranted because it relied on an expert opinion that should have been rejected upon more careful investigation.

The Divisional Court dismissed the appeal, finding that the Discipline Committee reasonably concluded the referral was not unwarranted based on the information before the Complaints Committee at the time.

The respondent suffered a Colles' fracture and underwent closed reduction surgery performed by the appellant emergency room doctor.

The appellant failed to take a post-cast x-ray and failed to inform the respondent of the high risk of displacement and the need for weekly x-rays.

The respondent's wrist did not heal properly, requiring multiple corrective surgeries.

The trial judge found the appellant negligent and awarded $90,000 in general damages.

On appeal, the Court of Appeal upheld the findings of negligence and causation regarding the failure to inform, but found the trial judge erred in assessing general damages by holding the appellant responsible for all consequences of the fracture rather than just the incremental harm caused by the delayed detection of displacement.

The appeal was allowed in part, reducing general damages to $30,000.

The appellant lawyer was found guilty of professional misconduct by a Law Society Hearing Panel for sexually harassing a client and an employee.

The case turned entirely on credibility, with the appellant denying all allegations.

The Hearing Panel's decision was overturned by the Appeal Panel but reinstated by the Divisional Court.

On further appeal, the Court of Appeal held that the Hearing Panel's reasons were so inadequate as to foreclose meaningful appellate review.

The reasons consisted of generic generalities, unexplained conclusory observations, and failed to articulate any analysis of the appellant's evidence.

The Court allowed the appeal and remitted the matter for a new hearing.

The appellant appealed a trial judgment finding that the parties were to share a lottery prize equally based on their established practice and relationship.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of fact regarding a central phone call and the parties' confirmatory conduct were entirely open to him and reasonable.

The appellant psychologist provided treatment to the respondent, an injured worker, beyond the sessions approved by the WSIB.

The appellant provided the services based on assurances from the respondent's paralegal that the WSIB would pay.

When the WSIB did not pay, the appellant sued the respondent in Small Claims Court for her unpaid account.

The trial judge dismissed the claim, finding no contract and no unjust enrichment.

The Divisional Court dismissed the appeal, holding that the trial judge made no palpable and overriding error in finding that the respondent had made it clear he could not pay, and that the appellant had assumed the risk of non-payment by the WSIB.