Sam B. Rogers

The defendants requested the court to issue a formal judgment following the liability phase of a bifurcated trial to establish res judicata for the upcoming damages phase.

The plaintiffs consented to the form of the draft judgment but argued it was unnecessary at this stage.

The court declined to issue the formal judgment, finding that the trial is a single proceeding and a comprehensive judgment should be issued after the damages phase is completed, though the liability findings remain binding.

This endorsement addresses the entitlement to costs following a medical malpractice action where the plaintiff's claim was dismissed.

The parties had agreed on a quantum of $300,000 for costs.

The court found that the defendant, as the successful party, was ordinarily entitled to costs.

The plaintiff's arguments for denying costs, including the defendant's failure to make a settlement offer, alleged divided success on causation and contributory negligence, and the plaintiff's impecuniosity and tragic circumstances, were rejected.

The court emphasized that the defendant's explicit undertaking not to demand costs alleviated concerns regarding hardship, allowing the ordinary rule that costs follow the event to apply.

The court reserved the right to revisit the disposition if the defendant were to seek enforcement of the costs order.

The plaintiffs, former involuntary patients at the maximum-security Oak Ridge division of the Penetanguishene Mental Health Centre, brought an action against two doctors and the provincial Crown.

They alleged they were subjected to abusive and experimental psychiatric programs, including hallucinogenic drugs, solitary confinement, and harsh disciplinary regimes, without informed consent.

The court found that the doctors breached their fiduciary duties and committed assault and battery.

The court also found the Crown directly and vicariously liable for these breaches and torts, rejecting the Crown's arguments of statutory immunity, limitation periods, and laches.

The trial was bifurcated, with this decision addressing liability and causation, leaving damages to be quantified later.

The plaintiff, a diabetic patient, brought a medical malpractice action against her family physician after requiring a below-knee amputation due to an undiagnosed neuropathic fracture (Charcot foot).

The plaintiff alleged the physician breached the standard of care by failing to order timely imaging or refer her to an orthopedic specialist.

The court found that the physician's treatment did not fall below the standard of care, noting that the condition was rare and not detected by other specialists who examined the plaintiff during the same period.

Although the court concluded that timely imaging would likely have saved the leg, the action was dismissed because the standard of care was not breached.

During a trial, the defendants brought a motion to exclude a new reply report by the plaintiffs' expert, Dr. John Bradford.

The plaintiffs sought to introduce the report to address six questions they claimed arose unexpectedly from the defendants' experts' testimony.

The court reviewed the principles governing late-filed expert reports, noting they are only admissible to address new, unanticipated matters raised by the defence.

The court analyzed each of the six questions and found that only one (Question 4, regarding the difference between segregation in a hospital versus a prison setting) addressed a genuinely new opinion.

The motion to exclude was partially granted, with only Question 4 of the reply report admitted.

In a voir dire during a trial, the plaintiffs challenged the qualification of the defendants' proposed expert witness, a forensic psychiatrist, arguing that a previously undisclosed 2002 draft report demonstrated a lack of independence.

The plaintiffs alleged that the expert's subsequent 2003 and 2019 reports were substantively altered to align with the defendants' legal position.

The court held that while the differences between the reports raised a suspicion sufficient to lift any litigation privilege over the draft report, they did not warrant disqualifying the expert at the threshold stage.

The expert was qualified to testify, with the draft report permitted to be used for cross-examination, and the ultimate assessment of his credibility and independence reserved for the trial judgment.

The plaintiffs brought a mid-trial motion to disqualify the defendants' proposed expert witness, Dr. Vernon Quinsey, arguing he lacked the requisite independence and objectivity.

Dr. Quinsey was previously employed as a staff psychologist and Director of Research at the very psychiatric facility whose programs were being challenged as unethical human experimentation.

The court found that Dr. Quinsey's integral role in evaluating the contentious programs during the relevant period created a serious doubt as to his objectivity.

The court concluded that the prejudicial effect of his evidence outweighed its probative value, and disqualified him from testifying as an expert, though permitting him to testify as a fact witness.

The defendants brought a mid-trial motion to exclude the expert testimony of Professor Bernard Dickens, an ethicist, regarding the ethical standards of psychiatric care and research applicable in the 1960s and 1970s at the Oak Ridge Division of the Penetanguishine Mental Health Centre.

The defendants argued that Prof. Dickens, not being a physician, was unqualified to speak on psychiatric standards of care and that his reports primarily constituted legal analysis.

The court dismissed the motion, finding Prof. Dickens highly qualified as an expert in medical ethics, distinguishing ethical standards from medical standards of care and legal analysis.

The defendants brought a mid-trial motion to determine the admissibility of two reply expert reports (Prof. Shane O’Mara and Dr. Stephen Xenakis) served by the plaintiffs just before trial.

The defendants argued the reports were late and constituted impermissible case splitting.

The plaintiffs contended the lateness was due to unforeseen circumstances and that the evidence would assist the court.

The court found that the issues addressed by the reply reports were foreseeable and had already been covered by the plaintiffs' initial experts, thus constituting new evidence rather than proper reply.

The court dismissed the motion, ruling the reports inadmissible to avoid prejudice to the defendants and further trial delays, emphasizing the importance of adhering to trial schedules in a long-standing action.

The plaintiffs brought a mid-trial motion to amend their statement of claim to include reliance on section 16(1)(h.2) of the Limitations Act, 2002, and the common law doctrine of discoverability.

The claims arose from their treatment as involuntary patients at a mental health facility between 1966 and 1983, alleging assault through abusive experimentation and physical abuse.

The defendants opposed the amendment, arguing prejudice due to lack of particularity and insufficient discovery on discoverability.

The court granted the motion, finding no prejudice to the defendants as the allegations of assault and dependency were already pleaded, and the defendants had prior notice of the plaintiffs' intent to rely on section 16(1)(h.2) and had extensively explored issues related to discoverability (laches) during previous discovery examinations.

The defendants brought a mid-trial motion to exclude video footage of an interview between a deceased plaintiff and a documentary filmmaker.

The plaintiffs sought to introduce the unsworn footage to demonstrate the deceased plaintiff's sincerity and counter credibility attacks in the defendants' expert reports.

The court held that the video footage did not meet the criteria of necessity and reliability under the principled approach to hearsay, noting that the best available evidence was the deceased plaintiff's sworn examination for discovery transcript and affidavit.

The motion to exclude the evidence was granted.

At a pre-trial conference for a six-week trial, the court provided procedural directions regarding the presentation of evidence.

The court permitted the plaintiffs to use affidavits for their evidence-in-chief to save time, but declined to admit discovery transcripts en masse.

The court also agreed with the defendant that the judge should not read the expert reports until after hearing the plaintiffs' viva voce evidence, to avoid being influenced by the experts' interpretation of the plaintiffs' testimony before hearing it firsthand.

The plaintiff, a solar power installation company, sued the Ontario Power Authority (OPA) for misfeasance in public office.

The plaintiff alleged that the OPA unlawfully amended the microFIT Program rules without providing the required 90 days' notice, intentionally causing harm to the plaintiff's business.

The Superior Court of Justice dismissed the action, finding that the OPA did not engage in deliberate unlawful conduct or act with bad faith.

The court held that the OPA acted in good faith to balance ratepayer interests and implement Ministerial directives regarding renewable energy procurement.

Although the court assessed potential damages at $470,250, no liability was found.

Former patients of the Oak Ridge Division of the Mental Health Centre in Penetanguishene brought a multi-party action against two physicians and the Crown for breach of fiduciary duty, battery, negligence, and violations of international law norms relating to torture and cruel treatment.

The patients alleged they were subjected to intensive therapy programmes involving psychological and physical torture between 1966 and 1983.

The motions judge granted partial summary judgment for breach of fiduciary duty and dismissed the defendants' motions to dismiss the action as statute-barred or barred by laches.

The appellants appealed, arguing procedural fairness violations and that the action was time-barred.

The Court of Appeal found the motions judge erred in granting partial summary judgment without proper notice and opportunity for the defendants to respond, and set aside those paragraphs.

The court remitted the matter for trial, finding genuine issues requiring trial on limitation and laches issues.

The applicant's lawyer brought an emergency ex parte application to enjoin a hospital from withdrawing life support from a patient.

The court initially granted the order but rescinded it the next day after the hospital and treating physician provided evidence that the patient was brain dead and the family had consented to withdrawing support.

The hospital and physician sought costs personally against the applicant's lawyer.

The court found the lawyer brought the application without instructions, submitted misleading material, and caused costs to be incurred unnecessarily.

The court ordered the lawyer to personally pay $15,000 in costs to the respondents.

The Plaintiffs sought costs following their successful partial summary judgment motion, where the Defendants' motion to dismiss claims as statute-barred was dismissed, and the Plaintiffs' cross-motion for partial summary judgment on breach of fiduciary duty was granted.

The Plaintiffs requested $821,580.08 in costs and disbursements on a partial indemnity basis.

The Defendants argued for a significantly lower award of $50,655, alleging over-lawyering and inclusion of costs unrelated to the specific summary judgment motion.

The court awarded the Plaintiffs $282,504.34, disallowing costs for an unsuccessful productions motion and reserving discovery costs for the final adjudication, while finding the Plaintiffs' remaining claims for the summary judgment motion reasonable despite the Defendants' "over-lawyering" argument.

The defendants brought a summary judgment motion to dismiss the plaintiffs' multi-plaintiff action as statute-barred.

The plaintiffs, former involuntary patients at the Oak Ridge psychiatric facility, alleged they were subjected to abusive human experimentation and torture by the defendant doctors between 1966 and 1983.

The court dismissed the defendants' motion, finding that the plaintiffs had a free-standing claim for breach of fiduciary duty that was not subsumed by the expired limitation periods for medical malpractice or tort claims.

The court granted the plaintiffs partial summary judgment on the breach of fiduciary duty claim, leaving issues of harm and damages for trial.

The plaintiff air freight company brought a motion under Rule 45.02 of the Rules of Civil Procedure seeking an order requiring the defendant sales agents to pay 732,376.72 EUR into court.

The plaintiff argued the funds represented unpaid cargo sales revenues.

The court dismissed the motion, finding that the plaintiff failed to establish a legal right to a specific, readily identifiable fund, as the defendants deposited all monies into a general corporate account without segregation.

The court concluded the plaintiff's claim was essentially for damages and granting the relief would amount to execution before judgment.

The appellant emergency room physician appealed a trial judgment finding him liable in negligence for the death of a patient from bacterial meningitis.

The trial judge found the appellant breached the standard of care by failing to consider meningitis, perform a lumbar puncture, or administer standard treatment when the patient presented with confusion, fever, and a history of decreased consciousness.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the patient's mental status, her reliance on an infectious disease specialist's standard of care evidence, or her causation analysis applying the 'but for' test.

A Sanderson costs order against the appellant was also upheld.

The approval holder brought a motion arguing that the Tribunal lost jurisdiction to determine the remedy for a revoked renewable energy approval because the statutory six-month time limit had expired, resulting in a deemed confirmation of the Director's decision.

In the alternative, the approval holder sought the recusal of the Tribunal panel due to a reasonable apprehension of bias.

The Tribunal dismissed the motion, finding that it had disposed of the hearing within the statutory time limit when it issued its original decision, and that the deeming provision did not apply to a remedy hearing remitted by the Court of Appeal.

The Tribunal also found no evidence to support the allegations of bias.