Stephanie Pearce

The defendant in a medical malpractice action brought a motion under s. 105 of the Courts of Justice Act for an order compelling the self-represented plaintiff to undergo a capacity assessment.

The plaintiffs brought a cross-motion seeking procedural accommodation for the plaintiff's participation to proceed exclusively in written and asynchronous formats due to severe disabilities.

The court found that the threshold requirements under s. 105(3) were met, as the plaintiff's own pleadings and conduct raised genuine concerns about litigation capacity.

The court further held that the requested accommodation of exclusively written and asynchronous participation would cause undue hardship by undermining procedural fairness, prejudicing the defendant's right to cross-examine, and straining court resources.

The defendant's motion was granted, and the accommodation request was dismissed without prejudice pending completion of the capacity assessment.

The court considered a motion by several physician defendants to have Kunal Tipu declared a vexatious litigant under section 140(1) of the Courts of Justice Act.

The court reviewed the history of Mr. Tipu’s litigation, including multiple duplicative and meritless actions, and found that his conduct met the criteria for vexatious litigation.

The court granted the order, prohibiting Mr. Tipu from instituting or continuing any proceeding in Ontario courts without leave, and dismissed several ongoing actions as frivolous and vexatious.

The defendants requested the dismissal of the plaintiff's action under Rule 2.1.01(6) of the Rules of Civil Procedure, alleging it was frivolous, vexatious, or abusive.

The plaintiff, despite being called upon by the court to make submissions, failed to do so.

The court found the claim to be unclear, lacking a pleaded cause of action, misnaming a defendant, and potentially constituting a collateral attack on a prior judicial decision regarding the plaintiff's treatment.

Consequently, the action was dismissed under Rule 2.1.

The plaintiff suffered a wrist fracture and attended the emergency room, where she was assessed by the defendant physician.

The physician discharged the plaintiff to follow up with her family health clinic but failed to provide adequate verbal instructions regarding the need to see an orthopedic surgeon within 7-10 days, nor did he document this timeframe in his chart.

The plaintiff experienced a delayed referral to an orthopedic surgeon, resulting in the fracture healing in a malposition that required surgery.

The court found that the defendant physician breached the standard of care by failing to provide and document adequate discharge instructions, and that this breach caused the plaintiff's poor outcome.

Judgment was issued in favour of the plaintiffs for an agreed-upon amount of damages.

The appellant appealed a decision of the Consent and Capacity Board finding him incapable of consenting to treatment with anti-psychotic medication for schizophrenia.

The appellant argued the Board misapplied the test for capacity and failed to consider relevant evidence.

The Superior Court of Justice found that the Board applied the correct legal test under the Health Care Consent Act and reasonably concluded that the appellant's mental disorder prevented him from appreciating the reasonably foreseeable consequences of refusing treatment.

The appeal was dismissed.

The plaintiffs, a joint venture, sued the Attorney General of Canada for damages arising from a flawed government procurement process for relocation services.

The plaintiffs alleged that the Crown breached its implied contractual duty of fair and equal treatment by designing the Request for Proposals to favour the incumbent contractor, Royal LePage Relocation Services.

The court found that the Crown acted in bad faith, intentionally concealed preferences in the tender documents, and allowed the incumbent to submit a non-compliant bid regarding property management services.

The court declared the plaintiffs the successful tendering party and awarded them $29,166,507 in damages for lost profits.

A claim for punitive damages was dismissed.

During a lengthy civil trial concerning federal relocation service contracts, the plaintiffs brought a motion to vary an earlier production order that had refused disclosure of a competitor’s administration fees.

After hearing extensive trial evidence, the court concluded that the administration fees were relevant to both liability and damages, particularly in understanding the effect of a zero‑percent bid for property management services.

Newly discovered facts showed that the defendant’s expert had requested and used the fees in internal analyses despite earlier representations suggesting otherwise.

Applying Rule 59.06(2)(a) of the Rules of Civil Procedure, the court held that orders may be varied where new facts arise or are discovered that would have materially affected the earlier decision.

The court therefore ordered limited disclosure of the administration fees and related reconciliation documents.

Following a summary judgment motion in a medical negligence action where the plaintiff was largely successful, the court determined the appropriate costs awards.

The plaintiff sought substantial indemnity costs, which the court denied, finding the defendants did not act unreasonably in bringing the motion.

The court awarded the plaintiff $54,000 in partial indemnity costs after reducing the claimed hours for reasonableness.

The court also awarded the defendants $7,500 for their partial success on the motion and awarded Dr. Penning $12,000 for the dismissal of the action against him, with these amounts to be set off against the plaintiff's award.

The plaintiffs brought a motion to amend their statement of claim during the cross‑examination of a witness.

The court addressed the procedural steps required to fairly accommodate the amendments while the trial was ongoing.

The judge ordered that the plaintiffs complete the current cross‑examination, after which the defendant could file an amended statement of defence responding to the amendments.

Additional procedural directions were provided allowing the defendant to recall the witness, conduct examination in chief on new matters, and potentially call further witnesses addressing issues arising from the amendments.

During an ongoing civil trial, the plaintiffs sought leave to amend their statement of claim based on information obtained from documents recently disclosed by the defendant relating to an internal investigation into conflicts of interest in a government procurement process.

The proposed amendments alleged concealment of investigation results, revisions to internal reports, reprisals against the investigator, and motivations behind a subsequent retendering process.

The defendant opposed only the allegations concerning disciplinary threats against the investigator, arguing they were not relevant to the pleaded causes of action.

The court held that the amendments were prima facie meritorious and relevant to the plaintiffs’ theory that the defendant intended to conceal the investigation results and influenced the investigation process.

Finding no non-compensable prejudice under Rule 26 of the Rules of Civil Procedure, the court granted leave to amend the statement of claim.

The plaintiffs sought a ruling confirming the admissibility of documents produced pursuant to a prior court order in litigation concerning federal relocation services procurement processes.

The defendant argued that the documents constituted hearsay, lacked authenticity, and were irrelevant to the fairness of the procurement process.

The court rejected these objections, finding the documents relevant to issues including alleged bias or preferential treatment in favour of another service provider and the conduct of government officials during the procurement processes.

The court held that the documents formed part of contractual documentation required under the relevant requests for proposal and were admissible for evidentiary purposes, including cross‑examination and proof of their contents.

Costs of the ruling were awarded to the plaintiffs on a partial indemnity basis.

The defendant physicians brought a motion for summary judgment dismissing a medical negligence action arising from complications following bowel surgery and epidural analgesia.

The plaintiff alleged failures in diagnosis and treatment of an epidural catheter infection, failure to obtain informed consent, and related causation issues after developing an epidural abscess requiring additional surgery.

Applying the “full appreciation test” for summary judgment from Combined Air Mechanical Services Inc. v. Flesch, the court held that the voluminous evidentiary record, conflicting expert evidence, and credibility issues required a trial for most allegations.

However, certain claims were dismissed: allegations relating to the surgeon’s performance of the initial surgery lacked supporting expert evidence, and claims against one physician based on a novel duty of care as a member of the Acute Pain Service failed to disclose a prima facie duty of care.

The remaining negligence, informed consent, limitation, and causation issues were ordered to proceed to trial.