Civil Litigation - Plaintiff - SCJ

The plaintiff brought a medical malpractice action against two radiologists for failing to detect a lung lesion on three chest x-rays taken between April 2012 and June 2013.

The court found that both radiologists breached the standard of care by failing to identify the abnormality.

On causation, the court held that 'but for' the first radiologist's failure to detect the lesion in April 2012, the plaintiff would not have required adjuvant chemotherapy, suffered a recurrence of his lung cancer, or experienced the associated psychological harm.

However, the court found that the second radiologist's failure to detect the lesion in October 2012 did not cause the plaintiff's outcome, as the cancer had already progressed to a stage requiring the same treatment.

The first radiologist was found liable for the agreed-upon damages, and the action against the second radiologist was dismissed.

The plaintiff sued a motel and a snow removal contractor for injuries sustained in a slip and fall on an icy walkway.

The motel pleaded contributory negligence against the plaintiff for consuming alcohol, and also brought a third party claim against a tavern for commercial host liability, alleging it over-served the plaintiff.

The tavern moved to strike the third party claim under Rule 21.01(1)(b), arguing the motel could not claim contribution for alcohol-related negligence already attributed to the plaintiff.

The court dismissed the motion, finding that a commercial host's liability for over-service is distinct from a plaintiff's contributory negligence for consuming alcohol, and thus the third party claim disclosed a reasonable cause of action.

The moving defendants in a medical malpractice action sought an order compelling the plaintiffs to produce child welfare files from the Children's Aid Society and Nogdawindamin Family and Community Services, arguing the plaintiffs undertook to produce them at discovery.

The plaintiffs resisted, arguing the undertakings were subject to relevance and privilege, and that the files were highly sensitive and irrelevant.

The court dismissed the motion, finding the undertakings were qualified and that production of the entire child welfare files was disproportionate and highly prejudicial given the speculative relevance to the damages claims.

The plaintiff brought a motion for summary judgment against the defendant, an independent contractor, for funds stolen through a fraudulent cheque scheme.

The defendant did not appear at the hearing.

The court found that the defendant had altered cheques written in her favour and deposited them multiple times, stealing $38,139.15.

The court granted summary judgment for the plaintiff, dismissed the defendant's counterclaim for outstanding wages, and awarded prejudgment interest from the date the fraudulent activity commenced.

Costs were awarded to the plaintiff on a substantial indemnity basis due to the defendant's reprehensible conduct.

The plaintiff brought a motion to strike the defendants' jury notice in a personal injury action arising from a pedestrian/motor vehicle collision.

The matter was ready for trial but faced significant delays due to the suspension of civil jury trials during the COVID-19 pandemic.

The court granted the motion, finding that the anticipated delay of over a year would prejudice the plaintiff and undermine the service guarantee of an expeditious determination on the merits.

The jury notice was struck to ensure justice was better served by a timely judge-alone trial.

The self-represented defendant brought an ex parte motion seeking an adjournment of a summary trial, consolidation of actions, and revisions to a discovery plan.

The plaintiffs brought a separate motion in a newly commenced related action seeking its dismissal as an abuse of process.

The court found that neither motion was ready for hearing due to late service of materials and unrealistic time estimates.

Both motions were adjourned to a special appointment hearing, with a temporary stay imposed on the new action.

The plaintiffs brought a basket motion in writing for non-party disclosure under Rule 30.10.

The court previously declined to grant the order due to evidentiary deficiencies regarding the consent or non-opposition of the non-parties and defendants.

The plaintiffs filed supplementary evidence addressing these concerns to the court's satisfaction.

The defendants Jing Liu and Yu De Xing (the "Xing defendants") brought a motion to enforce a Third Party Offer to Settle dated July 4, 2017, which they accepted on February 15, 2020.

The plaintiffs and Third Party argued that a subsequent global offer to settle from January 2020 impliedly withdrew the earlier offer, or that the court should exercise discretion due to inadvertent error.

The court found the two offers to be fundamentally distinct and that the later offer did not impliedly withdraw the earlier one.

The motion to enforce the July 2017 Offer to Settle was granted, and partial indemnity costs were awarded to the moving parties.

The moving defendants sought leave to vacate a Certificate of Pending Litigation (CPL) registered by the plaintiffs to allow a corporation to grant a second mortgage to the Royal Bank of Canada.

The plaintiffs and other defendants opposed the motion.

The court dismissed the motion, finding that the grounds for discharging the CPL did not satisfy the criteria under section 103(6) of the Courts of Justice Act, nor did the equities favour the moving parties, as ownership interests remained in dispute and the proposed mortgage would dilute the plaintiffs' interests.

The moving party and respondent entered into a joint venture to develop condominiums.

After the moving party's family assets were frozen, he transferred his shares in the project companies to the respondent to allow the respondent to secure financing, executing a document styled as a 'trust agreement'.

The moving party later brought a motion seeking the return of the shares, arguing the agreement created a bare trust that could be collapsed under the rule in Saunders v. Vautier.

The court dismissed the motion, finding the document was a contractual agreement rather than a trust, and that the rule in Saunders v. Vautier would not apply regardless because the moving party did not have absolute beneficial ownership of the shares.

GSI Environnement Inc. sued the City of Ottawa for unpaid invoices related to a biosolids disposal contract.

The City counterclaimed for breach of contract, alleging GSI wrongfully repudiated the agreement.

GSI argued the City breached the contract first by supplying non-conforming biosolids due to Quebec regulatory changes.

The court found that a 2007 amendment to the contract addressed the non-conforming biosolids issue by adjusting the pricing structure, and alternatively, any breach by the City was not fundamental.

Although the City's counterclaim was statute-barred, the court allowed an equitable set-off, effectively denying GSI's claim.

The City was awarded judgment against EnGlobe Corp. for unpaid disposal costs.

The plaintiffs brought an action to enforce a $408,000 promissory note and consulting agreements executed in 1992 as part of a family grocery business succession plan.

The defendants argued the consulting payments were intended to pay off the note and claimed the third-party solicitor was negligent for acting for all parties.

The court found the agreements were independent, the defendants fully understood the terms, and the sale of the business triggered the note's payment.

The court dismissed the solicitor negligence claim, finding no breach of the standard of care as the parties were in agreement at the time.

Following a summary judgment granting possession of a condominium unit to the plaintiff corporation for unpaid common expenses, the parties disputed the scale and assessment of costs.

The original default was approximately $500, but the claimed arrears grew to over $46,000, largely due to legal fees and interest.

The court ordered the costs to be assessed and held that, despite the condominium declaration stipulating solicitor-client costs, the court retains discretion to award costs on a partial indemnity scale.

The court ordered partial indemnity costs due to the disproportionate nature of the legal fees, the corporation's failure to mitigate conflict, and the defendants' earlier offer to settle.

The plaintiff was injured in a single-vehicle accident involving his own vehicle and sought to amend his statement of claim to assert a claim against his own automobile insurer under the OPCF 44R family protection endorsement.

He alleged that an unlicenced acquaintance was driving the vehicle at the time.

The motion judge dismissed the motion on the basis that the claim was not tenable in law.

The Divisional Court dismissed the appeal, finding that while the motion judge erred in her interpretation of the endorsement, the proposed claim was ultimately untenable in any of the possible factual scenarios.

The applicant municipality successfully obtained an interlocutory injunction to prevent the respondents from blockading various development sites and successfully defended a motion to quash its by-laws.

The applicant subsequently sought its costs of the proceedings.

The respondents argued they were public interest litigants and that costs should be in the cause or paid by the province.

The court rejected these arguments, finding the respondents' unlawful conduct necessitated the litigation and they were not acting in the public interest.

The court awarded the applicant costs fixed at $350,000, significantly reducing the $887,000 claimed due to duplication, excessive time, and the exclusion of costs for a court-ordered consultation process.

The plaintiff, Canadian Pacific Railway Company, sought to convert an interim injunction into a permanent injunction to restrain the defendant truck drivers from picketing and blockading its Vaughan Intermodal Terminal.

The defendants, who were independent contractors for trucking companies serving CPR, had been protesting pay cuts.

Following reports of vandalism and safety concerns, the court found that the plaintiff met the test for an injunction and ordered that the existing interlocutory injunction be made permanent pending trial.

The plaintiff brought a motion for summary judgment against the defendant to enforce a debt obligation under a promissory note.

The defendant admitted to signing the note and acknowledging the debt but raised a defence of duress during cross-examination, which was not pleaded.

The court applied the full appreciation test under Rule 20 and found no genuine issue requiring a trial, as the defendant's evidence did not support a finding of operative duress.

Summary judgment was granted in favour of the plaintiff for the acknowledged debt amount.

The defendant moved for summary judgment seeking a declaration that his motor vehicle insurance policy with the third-party insurer was in full force and effect when he struck the plaintiff pedestrian.

The insurer brought a cross-motion for summary judgment, arguing the policy was validly terminated for non-payment of premiums prior to the accident.

The court found that the defendant had implicitly agreed to the premium amount by paying it for three months before defaulting.

The court also accepted the insurer's calculation of the 30-day notice period required by the Statutory Conditions.

The insurer's cross-motion was granted, and the defendant's motion was dismissed.

The plaintiff brought a civil action seeking her share of proceeds from the sale of a house purchased during a relationship with the defendant.

Although title to the property was registered in the name of a third party who agreed to hold it for them due to financing constraints, the evidence established that the parties jointly funded the purchase and mortgage payments.

The court found that the parties operated in a shared economic partnership and each held a 50% beneficial interest in the property.

The defendant received the sale proceeds but failed to prove deductions he claimed for renovation costs, credit card debts, and alleged expenditures on a property in Ghana.

Judgment was granted for half of the proven net proceeds.

The respondents brought a motion to transfer the hearing of an application regarding a road access dispute from Toronto to Parry Sound.

The applicants, who reside in British Columbia, commenced the application in Toronto.

The court considered the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While the events occurred in Parry Sound and the subject property is located there, the court found that transferring the matter would not be desirable in the interests of justice, primarily because an expeditious hearing date had already been set in Toronto and it was unclear if a timely hearing could be accommodated in Parry Sound.

The motion was dismissed.