Sarah Mahoney

The plaintiff in a medical malpractice action brought a motion at trial to prohibit the defendant physicians from advancing theories of failure to mitigate and break in the chain of causation, arguing lack of prior notice.

The plaintiff contended that the defendants failed to update an undertaking given at discovery regarding mitigation.

The court dismissed the motion, finding that the plaintiff had adequate notice of the defence theories through the statement of defence, an expert report, and the defendants' pre-trial conference memorandum.

The court held that it would be fundamentally unfair to preclude the defendants from relying on these theories and that the trial remained fair to the plaintiff.

During the second week of a medical malpractice trial, the defendant physician sought leave to bring a motion for summary judgment to dismiss the claim against him.

The court dismissed the motion for leave, finding that the defendant failed to provide a satisfactory explanation for the delay, the motion would unduly delay the ongoing trial, and there was insufficient evidence that a summary judgment motion would be a proportionate or cost-effective alternative to continuing the trial.

During a medical malpractice trial, the plaintiff objected to the defendants' opening statement, arguing lack of notice regarding certain defences.

The defendants brought a cross-motion seeking leave to file an excerpt from their pre-trial conference memorandum to prove notice was given.

The court considered the prohibition on communicating pre-trial conference statements under Rule 50.09 of the Rules of Civil Procedure.

Applying Rule 2.03, the court found it was in the interests of justice to dispense with the prohibition and permit the defendants to file the excerpt solely to address the issue of notice.