Simon A. Clements

Following dismissal of two civil actions, the defendants sought partial indemnity costs and the self-represented plaintiff opposed the amounts and requested that costs be reserved to the Court of Appeal.

The court rejected reserving costs as contrary to established practice, accepted that costs must remain fair, reasonable, and proportionate, and declined reductions based on self-representation alone.

The court allowed a limited objection for case-management-related costs and declined costs thrown away on a prior adjournment, while otherwise finding the defendants’ summary judgment litigation approach reasonable.

Partial indemnity costs were fixed at $45,000 plus HST for the first action and $2,500 plus HST for the second action, payable within 30 days.

A physician with privileges at a hospital brought an action against the hospital alleging defamation, breach of fiduciary duty, breach of contract, negligence, negligent misrepresentation, and intentional infliction of mental suffering.

The claims arose from the hospital's investigation of a complaint made to the College of Physicians and Surgeons of Ontario alleging the physician expedited a patient's death.

The hospital investigated the complaint confidentially without notifying the physician and concluded the complaint was without foundation.

The physician was not notified until after the investigation concluded.

The hospital brought a Rule 21 motion to strike the pleadings and the physician brought a motion to compel production of investigation documents.

The court granted the hospital's motion in part, striking the contract claim as disclosing no reasonable cause of action, but dismissed the motion as to other claims.

The court granted the physician's production motion in part, ordering disclosure of documents relating to the scope and manner of investigation while protecting the identity of the complainant nurse and patient information.

The decision addresses motions for a representative order and for an interlocutory injunction in the context of the de-rostering of patients from a community health centre in Sault Ste.

Marie.

The plaintiff, Michael Da Prat, sought to represent both subscribers and non-subscribers of the Group Health Centre, challenging the de-rostering as a breach of contract, a violation of the Human Rights Code, and as oppressive conduct under corporate statutes.

The court granted a representative order only for the breach of contract claim on behalf of subscribers, denied it for other claims and for non-subscribers, and refused the interlocutory injunction, finding no strong prima facie case or irreparable harm.

The applicant sought judicial review of interlocutory case management and scheduling directions made by the Health Professions Appeal and Review Board (HPARB).

The Divisional Court issued a notice under Rule 2.1 considering the dismissal of the application as premature.

The court found that the HPARB's directions did not finally dispose of any substantive issues and were unambiguously interlocutory.

Finding no exceptional circumstances to justify departing from the general rule against reviewing interlocutory administrative decisions, the court dismissed the application for judicial review.

The defendant hospitals brought a motion to quash the plaintiff's civil proceedings, which arose from the termination of his hospital privileges.

The plaintiff sought an adjournment of the motion pending the disposition of his related appeals before the Health Professions Appeal and Review Board (HPARB) and a review motion in the Divisional Court.

The court granted the adjournment, noting that the results of the administrative proceedings could impact the viability of the civil claims, and stayed the civil proceeding in the interim.

The court heard multiple motions to strike claims against Her Majesty the Queen in Right of Ontario (HMQ), various Children's Aid Societies (CAS), and an expert witness (Julia Klein).

These claims arose from the use of unreliable hair follicle drug testing by the Motherisk Drug Testing Laboratory in child welfare investigations and proceedings, leading to children's apprehension and, in some cases, Crown wardship.

The plaintiffs alleged negligence, breach of Charter rights, bad faith, and other torts against the defendants.

The court granted all motions to strike, finding that HMQ and the CAS did not owe a private law duty of care to the parents or children in their supervisory or investigative roles, as their paramount duty was to the child's best interests.

Many claims were also deemed impermissible collateral attacks on existing court orders.

The claim against the expert witness, Julia Klein, was struck due to witness immunity and a lack of causal connection between her testimony and the alleged damages.

The appellant suffered a bowel leak after surgery and developed septic shock.

He sued the hospital and a nurse for delayed diagnosis and treatment, alleging nursing negligence and medication errors.

The trial judge dismissed the action, finding no breach of the standard of care and that the appellant failed to prove causation, as his injuries were inevitable due to the onset of the sepsis cascade before the alleged negligence occurred.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the evidence or application of the 'but for' causation test.

Appeal from a trial judgment finding that a nurse and hospital were liable for negligence in the care of a newborn who developed kernicterus due to untreated hyperbilirubinemia.

The trial judge found the nurse breached the standard of care by failing to report jaundice to the resident physician and that but for this negligence, phototherapy would have been commenced earlier, preventing the development of kernicterus.

The appellants challenged the causation findings.

The Court of Appeal upheld the trial judgment, finding that the trial judge properly inferred causation based on expert evidence and the factual progression of the infant's condition, and that the appellants could not escape liability by pointing to hypothetical negligence of other physicians.

The plaintiffs brought a medical malpractice action against the defendants after their newborn son developed kernicterus and suffered severe brain damage due to untreated hyperbilirubinemia.

The action against the physicians was settled, and the trial proceeded against the hospital and the nurse who cared for the infant overnight.

The court found that the nurse breached the standard of care by failing to report her observation of the infant's jaundice to a physician.

Applying a robust and pragmatic approach to causation, the court concluded that but for the nurse's negligence, a physician would have ordered a bilirubin test and initiated phototherapy in time to prevent the infant's injuries.

The hospital was held vicariously liable.

An employee of the Ontario Psychological Association appealed a motion judge's decision striking out paragraphs of her counterclaim that sought contribution and indemnity against six named defendants who were officers and/or directors of the Association.

The Court of Appeal upheld the motion judge's decision, finding that the six individuals owed no duty of care to the employee.

The court rejected the appellant's arguments that the individuals failed to supervise her properly and that they owed a duty to the Association that, if breached, would result in liability for the appellant's conversion of the Association's money.

Leave to amend was denied.

During a medical malpractice trial involving a newborn who developed kernicterus from untreated jaundice, the plaintiffs sought to qualify a registered nurse as an expert in perinatal nursing.

The defendants objected, arguing she lacked specific recent experience in tertiary hospital nurseries and was a 'roaming expert.' The court applied the Mohan and White Burgess frameworks, finding the proposed expert possessed the requisite specialized knowledge and experience in newborn care and jaundice assessment.

The court admitted the expert evidence, concluding its probative value outweighed any potential prejudice.

The Ontario Psychological Association (OPA) sued its former employee, Charlotte Mardonet, for misappropriating over $1.6 million.

Mardonet counterclaimed against the OPA and its individual officers and directors, seeking contribution and indemnity based on their alleged failure to supervise her.

The individual officers and directors moved to strike these paragraphs of the counterclaim, arguing they disclosed no reasonable cause of action.

The court granted the motion, finding it plain and obvious that officers and directors owe no duty of care or fiduciary duty to an employee to protect them from their own wrongdoing.

The appellant appealed from orders striking his statement of claim against seven respondents without leave to amend and setting aside a noting in default against one respondent.

The motions judge found the claims, which included allegations of torture and invasion of privacy, to be frivolous, vexatious, an abuse of process, and lacking any reasonable cause of action.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the decision to set aside the noting in default and agreeing that the pleadings were properly struck under Rules 21.01(1)(b) and 25.11(b) of the Rules of Civil Procedure.

Following a medical negligence trial in which the plaintiffs were unsuccessful in establishing a causal connection between breaches of the standard of care and a patient’s death following a caesarean section, the defendant hospital sought costs of $272,000.

The plaintiffs included the deceased’s spouse and minor children represented by a litigation guardian.

Although the plaintiffs had declined a settlement offer and the defendants had succeeded at trial, the court exercised its discretion under s. 131 of the Courts of Justice Act to deny a costs award.

Considering the plaintiffs’ circumstances, the public nature of the defendant institution, and broader access to justice concerns, the court held that imposing the full costs sought would be inequitable.

The plaintiffs brought a medical malpractice action following the death of a mother from postpartum hemorrhage and disseminated intravascular coagulation (DIC) hours after a caesarean section.

The plaintiffs alleged that the nurses, anaesthesiologist, and obstetricians breached the standard of care by failing to recognize and treat the bleeding earlier.

The court found that while the anaesthesiologist breached the standard of care by delaying notification to the obstetricians of the patient's deteriorating condition, this delay did not cause the patient's death.

The court concluded that even if the decision to operate had been made earlier, the patient would still have developed DIC and the fatal blockage would not have been prevented.

The action was dismissed without costs.

The appellants appealed a summary judgment dismissing their medical malpractice action against a doctor and hospital.

The action arose from a delayed diagnosis of testicular torsion, resulting in the removal of the affected testicle.

The motion judge found that even if the doctor had properly diagnosed the condition when he first saw the patient, there was at most a 10 per cent chance of saving the testicle.

The Court of Appeal upheld the motion judge's conclusion that the 'but for' test for causation was not met and dismissed the appeal.

The appellant, a paediatric dental surgeon, appealed a trial judgment regarding damages for a wrist injury sustained in a fall at the respondent hospital.

She argued the trial judge erred in calculating her 2007 and future income loss, provided insufficient reasons, and failed to apply the 'real and substantial risk' test for future loss.

The Court of Appeal dismissed the appeal, finding the trial judge correctly determined that the 2007 income drop was not caused by the injury, provided adequate reasons, and properly applied the real and substantial risk test to award $100,000 for future pecuniary loss based on the risk of a tendon rupture.

The insured died accidentally when a cocaine-filled condom burst in his stomach.

The appellant insurer refused to pay the life insurance proceeds to the respondent, the insured's former spouse and designated innocent beneficiary, arguing that public policy prevents a person from insuring against their own criminal act.

The Supreme Court of Canada held that the public policy rule preventing a criminal from profiting from their crime does not apply to an innocent beneficiary claiming in their own right, rather than through the criminal's estate.

The appeal was dismissed, and the respondent was entitled to the insurance proceeds.