Sarit Esther Batner

The applicant sought relief in a motion before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Motion dismissed.

This decision concerns an appeal under section 45(2) of the Arbitration Act, 1991, from an arbitral award regarding four disputes arising out of a major public-private partnership infrastructure project (Highway 427 expansion).

The appellant, His Majesty the King in Right of Ontario (as represented by the Minister of Transportation and Ontario Infrastructure and Lands Corporation), challenged the arbitral tribunal’s interpretation of the Project Agreement on four issues: the Crossfall Dispute, the Zenway Boulevard Dispute, the 407 ETR Dispute, and the 2014-2016 Dispute.

The court held that the tribunal correctly identified and applied the principles of contractual interpretation, found no extricable errors of law, and dismissed the appeal.

The case involved three interrelated motions within the receivership of ProjectCo, the entity responsible for the St. Michael’s Hospital redevelopment.

Unity Health Toronto sought to lift a stay of proceedings to terminate the Project Agreement due to ProjectCo's defaults.

The Bank of Montreal, as Administrative Agent for the Lenders, sought an order to assign ProjectCo's rights to enforce a Tower Interim Completion (TIC) payment and to dismiss Unity's motion.

Unity also sought to dismiss the Lenders' TIC application for lack of standing.

The court granted Unity's motion to lift the stay and to dismiss the Lenders' TIC application, and dismissed the Lenders' assignment motion.

The court found Unity would be materially prejudiced by the stay's continuation, while the Lenders' prejudice was contractually prescribed.

The Lenders lacked standing for the TIC application, and no legal or equitable assignment of ProjectCo's rights to enforce the TIC payment existed.

This is an appeal from a medical negligence action.

The appellants, the spouse and sons of the deceased, Brian Willick, sued Dr. Willard (emergency surgeon) and Dr. Csanadi (family doctor) for alleged negligence in treating Mr. Willick after a fall, which they claimed led to his death from a ruptured splenic hematoma.

The trial judge dismissed the action, finding that the doctors met the standard of care and that there was no detectable splenic injury attributable to the initial fall.

The appellants challenged the trial judge's application of causation, sufficiency of reasons on standard of care, and credibility assessments.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the respondent doctors met their respective standards of care, deferring to the trial judge's credibility findings, and concluding that the causation analysis was not flawed given the absence of a breach of duty.

The court also noted that the trial judge's reasons, while terse, were adequate for appellate review.

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

The plaintiffs sought costs following a successful 25-day medical malpractice trial where they "beat" a Rule 49 offer.

The defendants proposed a lower costs amount.

The court awarded the plaintiffs $3 million in costs, finding their request consistent with similar complex medical malpractice cases and justified by the defendants' conduct, which unnecessarily lengthened the proceeding and increased the plaintiffs' legal work.

The court considered factors under Rule 57.01, including the complexity of the case, the plaintiffs' complete success, and the defendants' late disclosure and attempts to introduce contradictory evidence.

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.

This costs endorsement followed successful appeals by the Fram and Kerbel entities against Romandale Farms Limited.

Romandale had initially been awarded substantial indemnity costs for four intertwined actions tried together.

The Court of Appeal, applying the principle of overall success rather than issue-by-issue determination, found that Fram and Kerbel were entitled to partial indemnity costs for the original actions, having achieved overall success on appeal and having beaten a joint settlement offer.

This decision addresses the costs arising from a decade-long, four-action litigation where Romandale Farms Limited was the successful party.

Romandale sought substantial indemnity costs against Fram and Kerbel (and their associated entities).

The court found that Fram and Kerbel's conduct throughout the litigation was "reprehensible and deserving of sanction," including pursuing meritless claims for tactical reasons, making disingenuous arguments, and principals giving false evidence.

The court awarded Romandale substantial indemnity costs of $2,708,651.57, inclusive of fees and disbursements, payable jointly and severally by Fram and Kerbel, finding the amount fair and reasonable given the complexity, stakes, and the losing parties' conduct.

The defendant, John Hancock, brought a motion to dismiss or stay the action, arguing that a forum selection clause in the parties' agreement required the plaintiff, Infinite Media, to bring its claim in Boston, Massachusetts.

Infinite Media contended the clause mandated claims be brought in Ontario, specifically in the responding party's city or county within Ontario.

The court interpreted the clause holistically, considering the agreement's wording and factual matrix, and found that all claims were intended to be brought in Ontario, in the responding party's city or county.

The motion to dismiss or stay was dismissed.

The appellant, a general surgeon, appealed a trial judgment finding him liable for medical negligence in the treatment of an 11-year-old patient who presented with abdominal pain.

The surgeon discharged the patient without ordering imaging or hospital admission, providing discharge instructions that the patient should only return if her condition worsened.

The patient's appendix subsequently ruptured, causing significant bowel damage.

The trial judge found the surgeon breached the standard of care in both his assessment and discharge instructions, and that causation was established.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's findings on standard of care or causation.

The court also addressed the inordinate delay in releasing reasons but concluded it did not impede fair adjudication.

A lawyer brought an application for an interim injunction to restrain a hospital from withdrawing life support from her client without instructions to do so and without notice to the client's family.

The application was granted ex parte but subsequently set aside by the reviewing judge after the client was declared brain dead.

The lawyer then appealed both the substantive decision and the costs award against her personally.

The Court of Appeal dismissed both appeals, finding that the lawyer had no authority to bring the application, acted without instructions, and seriously interfered with the administration of justice by misusing the court process during an emotionally sensitive family decision regarding end-of-life care.

The court heard two motions: the defendants' motion to discharge a Certificate of Pending Litigation (CPL) and the plaintiff's cross-motion to compel answers on cross-examination.

The plaintiff's motion was dismissed as overly broad.

The defendants' motion to discharge the CPL was granted.

The court found that the plaintiff failed to make full and frank disclosure on its ex parte CPL application and that there was no triable issue regarding the plaintiff's claim to an interest in the land.

The Letter of Intent and subsequent amending agreements were deemed unenforceable as they lacked essential terms, constituting "agreements to agree."

In a wrongful dismissal action, the defendant employer brought a motion to amend its statement of defence to add a counterclaim alleging that the plaintiff employee had improperly claimed reimbursement for personal expenses and charged personal expenses to the employer’s credit card.

The plaintiff opposed the amendment, arguing the proposed counterclaim was statute-barred under the Limitations Act, 2002 because the underlying documents had been in the employer’s possession for many years.

The court held that the discoverability issue could not be conclusively determined on the limited evidentiary record before it and that it was not clear a reasonably prudent employer ought to have discovered the alleged misconduct earlier.

The court therefore granted leave to amend the pleading, leaving the limitation defence to be determined at trial.

The plaintiff brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of financial records from a non‑party corporation, including financial statements, shareholder agreements, and accounting records.

The plaintiff argued the records were necessary to quantify damages arising from alleged breach of an oral employment agreement and fiduciary duties by former employees who allegedly diverted business.

The court held that production from a non‑party is exceptional and requires proof of relevance to a material issue and unfairness if production is denied.

Because the plaintiff elected to claim disgorgement of profits only from the named defendants and not the non‑party corporation, and there was no evidence that customers were diverted to the non‑party, the relevance requirement was not met.

The court further found the motion attempted to circumvent an earlier ruling denying the addition of the non‑party as a defendant due to the limitation period.

The motion for non‑party production was dismissed.

The plaintiff brought a motion seeking findings of contempt against a former employee and his company for failure to comply with prior court orders requiring cessation of competitive activities, return of confidential information, and attendance for mediation and examination.

The evidence showed the individual repeatedly ignored court orders, failed to attend examinations, continued competing using confidential information, and attempted to evade the court’s jurisdiction by travelling abroad.

The court found beyond a reasonable doubt that the defendants were in contempt and that the conduct was deliberate, ongoing, and aggravated by attempts to destroy evidence.

The court imposed significant sanctions including a $50,000 fine, struck the individual’s statement of defence, ordered attendance for discovery, and authorized issuance of a warrant of committal for incarceration if compliance was not achieved.

The plaintiffs brought a medical malpractice action alleging that a paediatrician breached the standard of care by failing to conduct follow‑up glucose testing and refer a child to an endocrinologist after a hypoglycaemic episode.

They argued that earlier investigation would have led to a diagnosis of panhypopituitarism and prevented a later hypoglycaemic seizure causing permanent brain injury.

The court considered conflicting expert evidence regarding the appropriate standard of care for paediatricians and whether a single episode of hypoglycaemia required referral or further testing.

The court preferred the evidence of defence experts that the episode was transient and that further investigation was not required absent recurring symptoms.

It also found the plaintiffs failed to establish causation, as it was speculative whether earlier referral would have prevented the later seizure.

Following reasons for judgment in a medical malpractice action, the court considered supplementary costs submissions from the plaintiffs seeking recovery for additional expert and transcript expenses incurred after the initial costs materials were delivered.

The defendant argued the supplementary expert evidence was unnecessary due to the plaintiffs’ change in trial strategy.

The court held that litigants may reasonably adjust trial strategy and should not be penalized in costs where services appeared necessary at the time they were obtained.

The court accepted that the supplementary expert report and transcripts used for closing submissions were reasonable litigation expenses.

The plaintiffs were awarded the additional costs sought.

The plaintiffs brought a medical malpractice action alleging that a physician performed a surgical procedure without consent during ovarian cyst surgery, resulting in sterilization.

The claim ultimately proceeded solely in battery after the plaintiffs abandoned negligence.

The court held that applying Filshie clips to the left fallopian tube constituted a separate procedure that fell outside the scope of the consent provided, and there was no emergency justifying the step.

General consent language permitting additional procedures during surgery did not authorize a sterilizing intervention where the patient had expressed a desire to preserve fertility.

The physician was therefore liable in battery.