Sam B. Rogers

The appellants, pediatric neurologists, appealed a trial judgment finding them liable for medical negligence in their treatment of an infant with a rare seizure disorder.

The trial judge found that the appellants breached the standard of care by prematurely concluding that a pyridoxine trial was ineffective and failing to reintroduce it when seizures returned.

The trial judge also found a breach of the duty to obtain informed consent for failing to disclose the pyridoxine trial to the parents.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings on the standard of care were grounded in expert evidence, the failure to disclose a reasonable alternative treatment constituted a breach of informed consent, and the causation finding was supported by a commonsense approach to the evidence.

The appellant tenant appealed the dismissal of its application to restrain the respondent landlord from terminating its commercial lease.

The landlord relied on a 30-day termination clause from a 1998 amending agreement.

The tenant argued that subsequent amending agreements, which included a six-month termination clause conditional on redevelopment, indicated the 30-day clause was confined to the 1998 extension term.

The Court of Appeal found the application judge erred by failing to address this key argument regarding contractual interpretation.

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

The applicant brought a motion under Rule 39.03 to compel the examination of a Vice-President at Infrastructure Ontario in the context of an application for judicial review challenging the expropriation of its properties.

The applicant sought to supplement the record with evidence regarding the scope, rationale, and scheme of the expropriations.

The Divisional Court dismissed the motion, finding no reasonable evidentiary basis that the proposed witness participated in briefing the decision-maker, nor did the proposed topics fall within the limited exceptions for supplementing a record on judicial review.

The moving party, a church, sought an injunction restraining the termination of its commercial lease by the landlord pending its appeal of a decision validating a 30-day notice of termination.

The Court of Appeal granted the injunction, finding that the interpretation of conflicting lease amendments raised a serious issue to be tried, the church would suffer irreparable harm due to its extensive charitable operations and the risk of the appeal becoming moot, and the balance of convenience favoured the church as it continued to pay rent.

The applicant-tenant sought to invalidate a Notice of Termination issued by the respondent-landlord.

The landlord relied on a 30-day termination clause that had been added to the commercial lease in 1997 and modified in 1998.

The tenant argued the clause did not apply to the current lease and relied on principles of commercial lease interpretation.

The court dismissed the application, finding that the termination clause was clear, unambiguous, and had never been expressly removed in subsequent lease extensions.

Furthermore, the tenant had signed an estoppel certificate acknowledging the lease documents containing the termination right.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

The court considered whether a dispute over the calculation of an earn-out under a Purchase and Sale Agreement (PSA) should be referred to an independent accountant, as provided in the PSA, or determined by the court.

The applicants argued that the dispute, which concerned whether certain partnership units received by the respondents should be included in the earn-out calculation, fell within the accountant’s jurisdiction.

The respondents argued the issue was a legal one for the court.

The court held that the PSA’s language and commercial context indicated the parties intended all unresolved disputed items regarding the earn-out to be determined by an independent accountant, not just calculation disputes.

The court directed the parties to submit their dispute to an independent chartered accountant in accordance with the PSA.

The defendant, Hydro One Networks Inc., moved for a temporary stay of an action brought by Nyon Oil Inc. and 1170367 Ontario Inc. regarding land ownership and rights to operate electricity transmission infrastructure.

The court considered the overlap and differences between the Superior Court action and a parallel Ontario Energy Board proceeding, ultimately granting a one-year stay to allow the Board to determine expropriation and related issues first.

The court found that the Board had exclusive jurisdiction over the ongoing operation of the transmission system and that a stay would avoid inconsistent findings and protect the public interest.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

This decision addresses a Rule 2.1.01 motion concerning multiple proceedings commenced by the plaintiff, Aynoush Biniaz-Sarabi, arising from a motor vehicle accident and subsequent denial of accident benefits.

The court reviews the history of related litigation, including prior decisions by the Licence Appeal Tribunal and Divisional Court, and considers whether the current and related actions are frivolous, vexatious, or an abuse of process.

Several actions are dismissed under Rule 2.1.01, and the court declines to declare the plaintiff a vexatious litigant without a formal motion.

The plaintiffs brought a medical malpractice action against two pediatric neurologists for their treatment of an infant's intractable seizures in 2003.

The infant suffered from a rare condition, pyridoxine-dependent epilepsy (PDE).

The court found that the defendants breached the standard of care by setting an insufficient observation period during a pyridoxine empirical trial, improperly concluding the treatment was ineffective, and failing to reconsider pyridoxine when seizures returned.

The court also found the defendants breached their duty to obtain informed consent by failing to advise the parents of the trial and alternative treatment options.

The court concluded these breaches caused or contributed to the infant's severe intellectual and developmental delay.

The plaintiffs brought a medical malpractice action against three obstetricians and a hospital regarding the birth of the infant plaintiff.

The mother alleged that she did not consent to the use of a vacuum or forceps during delivery, claiming medical battery and lack of informed consent.

She also alleged that the doctors breached the standard of care in their antenatal record keeping, failure to recommend a Caesarean section earlier, and the decision to attempt a vacuum and forceps-assisted delivery.

The court dismissed the action, finding that the mother had provided informed consent to the use of the instruments in the face of an urgent obstetrical situation involving fetal distress.

The court also found that the doctors met the standard of care in all respects and that the plaintiffs failed to prove that the neonatal injuries caused the infant plaintiff's subsequent neurodevelopmental limitations.

The plaintiffs, Vincent and Rosemary Tookenay, brought a motion to extend the time for service of their statement of claim in a medical malpractice action against the Estate of Dr. Michael O’Mahony and others, and to validate irregular service.

The statement of claim was issued in April 2021 but not properly served until January 2023, well beyond the six-month deadline.

The plaintiffs attributed the delay to a "miscommunication" within their lawyers' office.

The defendant Estate opposed the motion, arguing significant and uncompensable prejudice due to the unavailability of two key witnesses: Dr. O’Mahony, who suffered severe cognitive decline and later passed away, and nurse practitioner Melissa Georgiou, who died of cancer.

The court dismissed the plaintiffs' motion, finding an unexplained one-month delay after the plaintiffs' lawyers realized the claim had not been served, and actual prejudice to the defendant Estate due to the loss of crucial witness testimony.

In a class action seeking certification against the Crown and two psychiatrists (Defendant Doctors) regarding treatment in a psychiatric hospital program, the plaintiffs moved for a partial discontinuance of the action against the Defendant Doctors.

The court granted the discontinuance, finding it to be in the best interests of the putative Class Members.

The decision was based on the lack of additional recovery from the doctors, the streamlining of the claim, the doctors' later involvement in the program, and their agreement to provide de bene esse examinations to preserve evidence.

The court confirmed that the discontinuance was not for an improper purpose and did not prejudice the class members or the co-defendant Crown, as the doctors' evidence remained available.

The Estate of Helen Martindale brought a medical malpractice action against two emergency room physicians, Dr. Lee and Dr. Chiu, alleging negligence in their diagnosis and treatment of Helen Martindale's perianal pain, which was later diagnosed as anal cancer requiring an ileostomy.

The plaintiff contended that the doctors breached the standard of care by failing to properly diagnose, investigate, and provide adequate follow-up.

The court found that both Dr. Lee and Dr. Chiu met the applicable standard of care, concluding that their assessments and treatment plans were reasonable given the patient's presentation and the circumstances at a community hospital.

The court also found the plaintiff's evidence unreliable regarding follow-up instructions and determined that no imaging was medically necessary at the time of the initial emergency room visits.

As no breach of the standard of care was found, the issue of causation was not determined, but the court noted that the plaintiff failed to prove that any alleged breach caused the need for an ileostomy.

The action was dismissed.

The plaintiffs' counsel, Rochon Genova LLP, sought an order to retain costs awarded by various courts, including post-judgment interest, as part of their contingency fee agreement.

The total amount of costs sought was over $5.6 million, bringing their total compensation to over $7.4 million.

The defendants took no position as the costs had already been paid.

The court approved the request, finding the contingency fee agreements fair and reasonable given the exceptional circumstances, high risk, complexity, and two-decade duration of the litigation, which involved novel claims and a protracted procedural history.

The court confirmed the request complied with section 28.1(8) of the Solicitors Act, noting no excessive fees or 'double-dipping.'

The self-represented appellant appealed a Small Claims Court decision striking his claim against two physicians.

The appellant alleged the physicians used improper OHIP billing codes and improperly disclosed his personal health details to the police.

The Divisional Court dismissed the appeal, finding no error in the Deputy Judge's conclusions that the incorrect use of OHIP billing codes does not ground an action in negligence or breach of fiduciary duty, and that the Small Claims Court lacks jurisdiction to review CPSO investigations or grant remedies under the Charter or federal privacy legislation.

The court also found the appellant was not denied procedural fairness.

The self-represented defendant brought a motion for leave to appeal the order of Conway J. dated December 7, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding plaintiff in the amount of $5,000.

Metrolinx brought a motion to quash an appeal by the Haudenosaunee Development Institute (HDI) from an order dismissing its motion for an interlocutory injunction, and also sought to set aside an interim injunction granted by a single judge of the Court of Appeal.

Metrolinx further raised a preliminary allegation of reasonable apprehension of institutional bias against the court.

HDI, in turn, sought an extension of the interim injunction.

The Court of Appeal dismissed Metrolinx's bias challenge, finding no reasonable apprehension of bias.

The court then granted Metrolinx's motion to quash the appeal, concluding that the lower court's order was interlocutory, not final, and therefore the appeal lay with the Divisional Court with leave, not the Court of Appeal.

The Haudenosaunee Development Institute (HDI) sought an interim injunction from the Court of Appeal for Ontario to prevent Metrolinx from removing trees near Osgoode Hall.

This motion was brought pending HDI's motion for leave to appeal the Divisional Court's denial of leave to appeal an earlier injunction denial.

The Court of Appeal dismissed the interim injunction, finding that HDI failed to demonstrate a serious issue to be tried.

The court reiterated that appeals from an intermediate court's refusal of leave to appeal are generally not available unless the lower court mistakenly declined jurisdiction, an exception not met by HDI's arguments regarding constitutional rights or consultation.