Sean Atwood Lewis

This is a medical malpractice action in which the plaintiff, Kathleen Joanne O’Brien, alleged negligent treatment by the defendant, Dr. Jasjit Lochab, an orthopaedic surgeon, following a hip fracture and subsequent surgery in December 2018.

The parties agreed on damages, leaving liability as the sole issue.

The court found that Dr. Lochab met the standard of care in his choice and use of implant, as well as in his post-operative instructions.

The action was dismissed, with costs awarded to the defendant.

This decision concerns a medical negligence action brought by the family and estate of Kevin John McMullan against several physicians and a hospital, following Mr. McMullan’s sudden death from an aortic dissection.

The plaintiffs alleged that Dr. Naom and Dr. El Jaoudi breached the standard of care in their treatment of Mr. McMullan and that these breaches caused or contributed to his death.

The court found that both physicians met the standard of care in all respects, including the interpretation of diagnostic tests, management of hypertension, and discharge instructions.

The court also found that, even if there had been a breach, the plaintiffs failed to prove causation: the evidence established that Mr. McMullan’s aorta was normal for his age and body size, and that he would not have been referred for surgery or prevented from suffering the fatal dissection.

The action was dismissed in its entirety.

The plaintiff, Tri-South Developments Inc., sued the defendant, 583167 Ontario Inc., for breach of contract, waiver/estoppel, and unjust enrichment related to a failed condominium development project.

The core dispute revolved around a "Severance Condition" in their Contribution Agreement (CA), which required Tri-South to obtain land severance by a specific date.

Tri-South failed to meet this condition, leading to the automatic termination of the CA.

Tri-South alleged the defendant breached its duty of good faith by not disclosing its intent to rely on the severance date and by misleading them regarding design approvals.

The court dismissed all of Tri-South's claims, finding no breach of good faith, no waiver or estoppel by the defendant, and no unjust enrichment, as the plaintiff had control over the condition and failed to meet its obligations.

The respondents, facing multiple class actions related to the manufacture and distribution of opioids over a 20-year period, sought coverage for defence costs from their successive primary and excess liability insurers.

The application judge allowed the respondents to select a single primary insurer to fund the entire defence, permitted the exhaustion of self-insured retentions (SIRs) using payments from other insurers, granted relief from forfeiture for pre-tender defence costs, and required insurers to sign a Defence Reporting Agreement (DRA) to receive privileged defence information.

The Court of Appeal allowed the insurers' appeals in part, holding that defence costs must be allocated on a pro rata time-on-risk basis, that the insureds must exhaust each applicable SIR before an insurer's duty to defend is triggered, and that relief from forfeiture was unavailable for pre-tender costs.

The Court upheld the DRA requirement for insurers seeking to associate in the defence to mitigate reasonable apprehensions of conflict of interest.

The plaintiff sued her gynecologist for medical malpractice after suffering a ureteric injury during a laparoscopic hysterectomy.

The plaintiff alleged the defendant was negligent in failing to detect the injury during surgery and in failing to consider the possibility of a ureteric injury and consult a urologist when the plaintiff presented with post-operative complications.

The court found no breach of the standard of care during the surgery, as the injury was likely a thermal ischemic injury that was not visually observable.

While the court found the defendant breached the standard of care by failing to consider a ureteric injury and consult a urologist post-operatively, the action was dismissed because the plaintiff failed to prove causation.

The court concluded that earlier urological intervention would not have altered the plaintiff's medical outcome or prevented the need for subsequent repair surgery.

The applicant challenged the validity of her late mother's 2019 will, which left the estate to a defunct charity and appointed a neighbour's daughter as estate trustee.

The application was uncontested.

The court found the will invalid due to suspicious circumstances, including the deceased's documented brain injury and lack of capacity since 2012.

The court declared an intestacy, appointed the applicant as estate trustee, and allowed the estate to be processed as a small estate despite being marginally over the financial threshold.

A case conference was held after a scheduled 10-day trial was adjourned due to a lack of judicial resources.

The defendant hospital sought leave to bring motions for partial summary judgment and security for costs.

The court denied leave for the summary judgment motion, noting it should have been brought before the action was set down for trial, and directed that any motion for security for costs proceed through regular channels rather than on an urgent basis.

The court also ordered further discovery on the plaintiff's loss of income claim and directed counsel to select a trial date in 2022, emphasizing the unacceptability of further delaying a 10-year-old case.

The Applicants sought costs following a partial success in an application concerning insurance coverage, specifically the duty to defend and equitable allocation among insurers.

The court awarded full indemnity costs to the Applicants against AIG and Royal & Sun Alliance Insurance Company of Canada (RSA) for the duty to defend issue, finding the Applicants overwhelmingly successful on that point.

Costs related to the exhaustion of self-insured retentions (SIRs)/deductibles were deferred to a future trial of the issue, as neither party fully succeeded.

Zurich Insurance Company Ltd. was ordered to pay reduced costs due to its partial success on a specific "Single Retention Endorsement" interpretation.

Guaranteed Funeral Deposits of Canada (Fraternal) applied to enforce its interpretation of an amending agreement with Assurant Life of Canada.

Assurant cross-applied for rescission of the agreement, alleging misrepresentation.

The court found that Guaranteed misled Assurant by misstating facts regarding the omission of a clause from the 2012 agreement, whether innocently or deliberately.

Assurant relied on this misrepresentation, which was material.

The court granted Assurant's cross-application for rescission, declaring the amending agreement void, and dismissed Guaranteed's application.

Tallman Truck Centre Limited appealed an order staying its action against K.S.P. Holdings Inc. The stay was imposed because Tallman failed to immediately disclose a settlement agreement with the co-defendant, Secure Capital Advisors Inc., which fundamentally altered Secure's adversarial position to a cooperative one with Tallman.

The Court of Appeal dismissed Tallman's appeal, affirming that such agreements, regardless of type (Mary Carter or Pierringer-type), require immediate disclosure as they change the litigation landscape.

The court reiterated that failure to immediately disclose constitutes an abuse of process, for which a stay of proceedings is the only appropriate remedy, regardless of intent or perceived prejudice.

The applicants sought declarations concerning insurers’ duty to defend multiple opioid class actions, the insureds’ right to select a single defending policy, allocation of defence costs, exhaustion of SIRs and deductibles, and the terms on which insurers could receive defence-side reporting.

The court held that, subject to exhaustion of the relevant SIRs or deductibles, each applicant could select any single policy under which there was a duty to defend, and the selected insurer was required to pay all reasonable defence costs associated with covered claims even if those costs also furthered uncovered claims.

Time-on-risk allocation was accepted only as an equitable mechanism among insurers with concurrent obligations, not as a basis to reduce contractual defence obligations owed to the insureds.

The court further held that pre-tender defence costs could attract relief from forfeiture, that disputed SIR exhaustion issues required a trial, and that insurers seeking privileged defence-side reporting had to maintain robust ethical screens through a defence reporting agreement because both party-based and coverage-based conflicts were present.

The applicant brought an application to enforce his rights under a Memorandum of Agreement (MOA) regarding a cannabis licence in Zimbabwe.

The respondents moved to stay the proceedings, arguing the MOA mandated arbitration at the London Court of International Arbitration.

The applicant argued the MOA also contained a non-exclusive jurisdiction clause for Canadian courts, creating a conflict that allowed him to choose the forum.

The court found that it was arguable the dispute fell within the mandatory arbitration provision and, applying the competence-competence principle, stayed the application to allow the arbitral tribunal to rule on its own jurisdiction.

The appellant, Dr. Colin Ward, appealed a trial judgment finding him liable for negligence in performing a laparoscopic colectomy on the respondent, Karen Armstrong, in February 2010.

The trial judge found that Dr. Ward breached the standard of care by bringing a LigaSure device within one to two millimetres of the respondent's left ureter, causing a thermal injury that resulted in stricturing of the ureter and eventual removal of the kidney.

The majority of the Court of Appeal (Paciocco and Juriansz JJ.A.) allowed the appeal, finding that the trial judge erred in law by defining the standard of care as a goal or result (avoiding injury) rather than as the means a prudent surgeon would employ.

The majority held that since the trial judge found Dr. Ward took the steps a prudent surgeon would take, he should have been exonerated.

Van Rensburg J.A. dissented, finding the trial judge's findings on standard of care were fully supported by the evidence and that staying at least two millimetres away from the ureter was a necessary step, not merely a goal.