Sarit Esther Batner

Following a partial appeal reducing damages and prejudgment interest in an oppression action, the court reconsidered the quantum of trial costs and the cost consequences of a pre-trial offer to settle.

The court held that, once the amended judgment and pre-offer costs were compared to the offer, the plaintiff had obtained a result less favourable than the offer.

Rule 49.10 was therefore engaged.

However, because of the defendants' conduct previously found to justify elevated costs, the court ordered substantial indemnity costs in favour of the plaintiff to the date of the offer, partial indemnity costs to the defendants thereafter, and netted the awards.

The defendants also received costs of the rehearing.

The plaintiffs in a medical malpractice action sought leave to amend their statement of claim to substitute two identified physicians for previously named fictitious “Doe” defendants after the expiry of the limitation period.

The court considered whether the substitution constituted correction of a misnomer under Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002.

Applying the “litigation finger” test, the court held the pleadings sufficiently identified the intended physicians through details of the hospital, department, treatment period, and alleged conduct.

The court found no material prejudice arising from the delay and determined that the plaintiffs had exercised reasonable diligence in attempting to identify the physicians through medical records and inquiries.

Leave to amend and substitute the physicians for the Doe defendants was granted.

The respondent, a silent investor in a private company, brought an oppression action against the managing directors for awarding themselves excessive compensation and failing to provide financial disclosure.

The trial judge found the directors liable for oppression and awarded damages and substantial indemnity costs.

On appeal, the Court of Appeal upheld the findings of oppression and the scale of costs, but found the trial judge erred by not calculating the excess compensation on a net basis over the entire 22-year period, which would have credited the directors for under-compensation in the company's early years.

The Court reduced the damages award from $250,000 to $187,453.51 and remitted the quantum of costs to the trial judge for reconsideration in light of a Rule 49 offer to settle.

The successful plaintiffs brought a motion seeking payment of approximately $1 million held by the Accountant of the Superior Court of Justice to partially satisfy their judgment.

The defendant opposed the motion, arguing that his law firm was entitled to a priority charge on the funds for $825,000 in unpaid legal fees pursuant to s. 34(1) of the Solicitor's Act.

The Court of Appeal dismissed the defendant's arguments, finding that the funds were not preserved through the instrumentality of the law firm and that the equities overwhelmingly favoured the plaintiffs.

The motion was allowed and the funds were ordered released to the plaintiffs.

A former employee of a digital cinema company misappropriated proprietary 2D to 3D conversion software and confidential information while still employed and used it to establish competing businesses in China.

The court found breaches of the duty of good faith and fidelity, misuse of confidential information and trade secrets, misappropriation of a corporate opportunity, and the tort of conversion.

The defendants, most of whom were noted in default, used the stolen technology to win a theatre project and compete in the digital cinema market.

The court awarded damages reflecting the minimum cost of developing the stolen technology, disgorgement of profits from the misappropriated project, punitive damages, and substantial costs.

In an estates application concerning capacity and management of property, a respondent brought a motion to prevent the use of a transcript from an examination conducted in unrelated prior litigation.

The applicant sought to rely on the transcript to demonstrate incapacity.

The court held that the transcript was subject to the deemed undertaking rule under Rule 30.1.01 of the Rules of Civil Procedure and could not be used in collateral proceedings without leave.

The court found that the interests of justice did not outweigh the privacy and litigation integrity concerns underlying the rule.

The transcript was ordered to remain sealed and excluded from the application record.

Multiple tobacco manufacturer defendants sought partial indemnity costs of approximately $300,000 after withdrawing previously scheduled motions to strike the Crown’s statement of claim in a health care cost recovery action under the Tobacco Damages and Health Care Costs Recovery Act.

The defendants argued they were the successful parties because their motions prompted extensive amendments to the pleading and that the Crown delayed notifying them of its intention to amend.

The court held that the amendments addressed only some of the alleged deficiencies and that significant legal issues remained unresolved when the defendants chose to withdraw the motions.

As a result, success on the motions was considered divided.

Exercising discretion under s. 131 of the Courts of Justice Act, the court ordered that each side bear its own costs.

Following a trial where the plaintiff was awarded $250,000 in damages for oppression, the court determined the issues of prejudgment interest and costs.

The court rejected the plaintiff's expert calculation for prejudgment interest, instead applying the Courts of Justice Act rate from the date the cause of action arose.

The court awarded the plaintiff substantial indemnity costs, finding the defendants' conduct in taking excess compensation and deliberately withholding information to be egregious and reprehensible.

The defendants' Rule 49 offer did not apply because the judgment, which included substantial indemnity costs, was more favourable than the offer.

Costs were fixed at $413,000.

The appellant construction company appealed a Small Claims Court judgment awarding the respondent residents $14,700 in damages for nuisance, trespass, and negligence arising from noise and odour emitted by a temporary asphalt plant.

The Divisional Court upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding errors in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify the respondents' expert witness despite her employment with an environmental advocacy group.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no compensable personal injury or property damage to ground a negligence claim.

The damages award remained unchanged.

The appellant appealed a Small Claims Court decision finding it liable in nuisance, trespass, and negligence for noise and odour emanating from its temporary asphalt plant.

The Superior Court of Justice upheld the finding of liability in nuisance, concluding the trial judge made no palpable and overriding error in assessing the severity of the interference or the character of the neighbourhood.

The court also upheld the trial judge's decision to qualify an expert witness employed by an environmental advocacy group, finding her employment did not automatically disqualify her.

However, the court allowed the appeal regarding trespass and negligence, finding that noise and odour are indirect intrusions that do not constitute trespass, and that the respondents suffered no personal injury or property damage compensable in negligence.

The damages award of $14,700 was upheld.

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.

In a medical negligence appeal arising from the death of a pregnant hospital patient after rupture of an ascending aortic aneurysm, the court split on whether the trial judge could find the obstetrical Most Responsible Physician liable while absolving the consulting respirologist.

The majority held that the hospital's MRP policy imposed an independent duty to exercise critical judgment, coordinate care, obtain appropriate consultations, and formulate an overall plan of care, and that the obstetrician breached that duty by failing to arrange immediate cardiac assessment and transfer to a tertiary care centre.

The dissent concluded the findings against the obstetrician were irreconcilable with the unchallenged finding that the respirologist's treatment plan met the standard of care, and would have set aside liability.

The majority also upheld causation and dismissed the costs appeal.

Following an appeal from summary judgment decisions in two related actions involving fraudulent investment schemes, the Court of Appeal determined the costs of the motions and the appeals.

The court upheld the costs and Sanderson order in favour of the successful Mauldin group.

However, because the appellant successfully appealed the summary judgment in the Bruno action, the court set aside the costs and Sanderson order in favour of Bruno, reserving the motion costs to the trial judge and making Bruno liable for the co-defendants' costs.

Costs of the appeals were awarded on a partial indemnity scale.

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 three accused, former senior executives of Nortel Networks Corporation, were charged with two counts of fraud over $5,000.

The Crown alleged that they deliberately misrepresented Nortel's financial results by manipulating accrued liability balances to meet earnings targets and trigger bonus payments.

The court conducted a detailed review of Nortel's accounting practices, the use of accrued liabilities, and the restatements of its financial results.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused deliberately misrepresented the financial results or that the financial statements were materially misstated.

The accused were found not guilty on both counts.

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 moving parties sought leave to appeal a $50,000 substantial indemnity costs order made after the parties reached a consent resolution on a relief from forfeiture application.

The court found the costs order was interlocutory, as the underlying consent order did not finally dispose of the parties' rights.

Leave to appeal was granted because there was good reason to doubt the correctness of the costs order, particularly regarding the motions judge's reliance on untested affidavit evidence, the characterization of the tenant as the successful party, and the awarding of costs against a corporate officer personally.

The court also found the proposed appeal involved matters of general importance regarding costs awards following settlements.

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.