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 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.

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.

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.

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.

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.