Sarit Esther Batner

Following earlier motions seeking to set aside or vary an ex parte order and discharge certificates of pending litigation registered against properties connected to bankrupt estates, the trustee sought costs.

The moving parties argued they had achieved partial success and that costs should be in the cause or borne by each party.

The court found the trustee had been essentially successful in maintaining the certificates of pending litigation and defending the scope of the production order, notwithstanding limited clarification provided in the earlier endorsement.

After considering objections regarding time spent on cross-examinations and the factors in rule 57.01(1), the court fixed partial indemnity costs in favour of the trustee.

The spouses of two bankrupt individuals and related family trusts moved to set aside or vary an ex parte order obtained by the bankruptcy trustee that authorized production of financial records and permitted the registration of certificates of pending litigation against matrimonial homes held in the spouses’ names.

The applicants argued that the trustee improperly proceeded without notice, failed to provide full and fair disclosure, and did not follow statutory investigative steps under the Bankruptcy and Insolvency Act before seeking court relief.

The court held that the trustee had reasonable grounds to proceed ex parte due to concerns that the bankrupts might encumber the properties and that there had been no material non‑disclosure.

However, the court found that the authorization of certificates of pending litigation was procedurally irregular because no proceeding claiming an interest in land had yet been commenced.

The order was varied so that the certificates would be discharged unless the trustee commenced a proceeding asserting an interest in the properties within a specified period.

The defendants appealed a Master's order dismissing their motion to sever the claims of two plaintiffs who alleged sexual misconduct against their deceased family physician.

The Master had dismissed the motion primarily because it was brought at a late stage in the litigation, after discoveries were completed and the action was set down for trial.

The Superior Court of Justice dismissed the appeal, finding that the Master made no error of law and reasonably exercised her discretion in concluding that the conduct of the trial, including rulings on the admissibility of similar fact evidence, should be left to the trial judge.

The plaintiffs appealed an order of a case management master requiring them to post additional security for costs in complex civil litigation.

The plaintiffs were non-residents of Ontario and did not claim impecuniosity, but argued that the strength of their claims justified denying security for costs.

The court held that the master applied the wrong legal standard by requiring the plaintiffs to show an "overwhelming likelihood of success" rather than the correct standard of a "good chance of success" when assessing the merits under Rule 56.01 of the Rules of Civil Procedure.

Because this constituted an error of law, the appeal was allowed in part and the matter was remitted to the case management master for reconsideration using the proper standard.

Following a lengthy medical malpractice trial, the court had found one physician negligent and liable while two co-defendants were not found liable.

The parties had previously agreed that damages would be fixed at $430,000 inclusive of interest if liability were established.

The successful plaintiffs sought costs exceeding $529,000 including substantial indemnity fees and disbursements.

The court considered the complexity of medical negligence litigation, the reasonable expectations of the parties, the absence of a formal Rule 49 offer to settle, and the fact that the plaintiffs succeeded against only one of three defendants.

Applying the principle of proportionality and overall reasonableness, the court reduced the requested amount and fixed costs at $400,000 inclusive of disbursements and exclusive of taxes.

These consolidated appeals addressed the interpretation and application of the amended summary judgment regime under Rule 20 of the Rules of Civil Procedure.

The Court of Appeal held that summary judgment may be granted not only where claims or defences are without merit or the parties agree, but also where the motion judge can achieve a full appreciation of the evidence and issues required to make dispositive findings on the motion record, possibly supplemented by limited oral evidence.

The court articulated the “full appreciation” test, confirmed that the standard of review on whether there is a genuine issue requiring a trial is correctness, and explained the proper use of the new powers to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence on discrete issues.

Applying those principles, the court dismissed the Combined Air, Misek, and Parker appeals, dismissed the Mauldin appeal, and allowed the Bruno appeal by setting aside summary judgment and dismissing the motion.

The appellant underwent a laparoscopically assisted vaginal hysterectomy and subsequently developed a severe infection and an ileovaginal fistula.

She sued her gynecologist and the general surgeon who performed a subsequent exploratory laparotomy for medical malpractice, alleging a burn injury to her small bowel caused the fistula.

The trial judge dismissed the action, finding no breach of the standard of care and that the fistula was caused by infection, not a burn.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings of fact and concluding that the 'but for' test for causation was correctly applied.

The moving party sought to set aside a Registrar's order dismissing its appeal for delay.

The underlying action involved a claim against environmental consultants for allegedly overstating PCB contamination, which was dismissed on summary judgment as statute-barred.

The Court of Appeal dismissed the motion to set aside the Registrar's order, finding that the moving party failed to adequately explain its delay and, crucially, that the appeal lacked merit because the principal of the moving party admitted on discovery that he knew all material facts to start a claim well before the limitation period expired.

Following a successful appeal, the respondents requested to make submissions on the costs of the lower court proceeding, arguing the motion judge made no costs award due to the novelty of the issues.

The Court of Appeal affirmed its decision to award the appellants costs of both the appeal and the lower court motion, applying the general principle that costs follow the event and noting that the appellants were entirely successful in being permitted to continue their actions against new defendants.

The plaintiff, who suffered severe brain damage at birth rendering him mentally incompetent, commenced a medical malpractice action in 2002 against his mother's obstetrician and the hospital.

In 2006, a second action was commenced against the doctors who treated him post-birth.

The motion judge struck the second action as statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that under the transition provisions in s. 24, the former limitation period applied because the claim was discovered by the litigation guardian before January 1, 2004.

Under the former Limitations Act, the limitation period was suspended due to the plaintiff's mental incompetence, meaning the second action was commenced in time.

The respondent doctor prescribed Accutane, a teratogenic drug, to the mother of the appellant child, relying on the father's 4.5-year-old vasectomy as birth control.

The vasectomy failed, the mother became pregnant, and the child was born with severe disabilities.

The child sued the doctor for negligence.

The Court of Appeal held that a doctor does not owe a duty of care to a future, unconceived child of a female patient when prescribing medication, as recognizing such a duty would create an impossible conflict of interest between the best interests of the future child and the best interests of the patient.

The appeal was dismissed.

The appellant tenant appealed a trial judgment awarding the respondent landlord damages for the cost of restoring commercial premises at the end of a tenancy.

The Court of Appeal upheld the trial judge's finding that a 1999 consolidation lease did not eliminate the tenant's repair obligations from earlier leases.

The court also upheld the assessment of damages for floor, electrical, and HVAC repairs as supported by the evidence.

However, the court allowed the appeal in part, finding that an administration fee for loss of rent was not supported by the wording of the lease.

The appellants appealed the dismissal of their medical malpractice action against the respondent gynaecologist.

During a laparoscopic bilateral oophorectomy, the appellant's colon was burned by a cautery instrument.

The trial judge found that the respondent caused the burn but concluded there was insufficient evidence to find he fell below the standard of care, as the appellants' expert did not address the specific location where the respondent testified he applied the cautery.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to decline to draw an inference of negligence given the gap in the expert evidence.

The plaintiff sued the defendant for sexual assault and sought production of the Crown brief from the defendant's related criminal proceedings.

The criminal trial had been stayed, and the defendant's statements to the police had been excluded due to a breach of his s. 10(b) Charter rights.

The Court of Appeal upheld the Divisional Court's creation of a screening mechanism, requiring notice to the Attorney General and police before a Crown brief can be produced in civil proceedings.

However, the Court of Appeal reversed the Divisional Court's ruling that the defendant's excluded police statements were shielded from production, holding that the criminal rule of automatic exclusion for conscriptive evidence does not apply in the civil discovery context.

The appellant appealed a judgment of Justice Juriansz.

The Court of Appeal dismissed the appeal, agreeing with the lower court's conclusion and reasons.

The court also granted leave to appeal the costs decision but dismissed that cross-appeal, finding no error in principle in fixing costs based on a summary procedure quantum.

Costs of the appeal were fixed at $7,000 on a partial indemnity basis.

The plaintiff sued the defendant doctor for sexual assault.

Criminal charges against the defendant were stayed, but during the criminal proceedings, the defendant received a Crown Disclosure Brief, which included a statement he made to police that was ruled inadmissible due to a s. 10(b) Charter violation.

In the civil action, the plaintiff sought production of the Crown Brief.

The Divisional Court held that while the existence of the Crown Brief must be disclosed, its contents should not be produced until the Attorney General and relevant police service are notified and either consent or a court orders production.

Furthermore, the defendant's Charter-infringing statement to police was protected from production in the civil proceeding.

The plaintiff brought a civil action for damages for sexual assault against the defendant, whose criminal charges for the same allegations were stayed.

The plaintiff sought production of the Crown Disclosure Brief from the criminal proceedings, which included a statement the defendant made to police that was ruled inadmissible in criminal court due to a breach of his s. 10(b) Charter rights.

The Divisional Court held that while the existence of the Crown Brief must be disclosed, its contents should not be produced without a screening mechanism involving the Attorney General and police to protect public interest.

Furthermore, the court ruled that the defendant's Charter-infringing statement to police was protected from production in the civil proceeding.

The moving party sought leave to appeal an initial order made under the Companies' Creditors Arrangement Act that authorized the debtor to obtain debtor-in-possession financing with superpriority over existing security.

The initial order was made without notice but included a comeback clause allowing interested parties to seek variations.

The Court of Appeal dismissed the motion for leave to appeal as premature, holding that the moving party should first utilize the comeback clause to have their concerns heard by the supervising judge on a full record.

The plaintiffs appealed the dismissal of a medical malpractice action on summary judgment.

The respondents had relied on expert opinion evidence that the standard of care was met, while the plaintiffs had no expert evidence supporting negligence.

The court held that neither the alleged "high forceps" theory nor the "excessive force" theory raised a genuine issue for trial.

The appeal was dismissed and no costs were awarded.