Stephen J. MacDonald

The Court of Appeal for Ontario dismissed an appeal by defendants seeking to hold litigation lenders liable for costs incurred by a class member (Mr. Zuber) who pursued an exaggerated damages claim and incurred substantial debt from litigation loans.

The trial judge had refused to order the lenders to pay costs, finding they did not instigate or control the litigation in a manner amounting to an abuse of process, despite the onerous interest rates and the loans impeding settlement.

The Court of Appeal affirmed this decision, reiterating that non-party costs are limited to "person of straw" or abuse of process scenarios, neither of which applied to the lenders' conduct.

The court also refused leave to cross-appeal the trial judge's decision not to award costs of the motion to the lenders, finding no error in principle.

Following a failed motion by the defendants to have their trial costs paid by various litigation loan providers, the loan providers sought their costs of the motion.

The court declined to award costs to the loan providers, finding that the defendants' motion raised a novel issue regarding the enforcement of a costs award against a litigation loan provider and the requirement for court approval of litigation loan agreements.

Given the novelty of the issue, the court exercised its discretion to make no order as to costs.

The moving party, a class member in a train derailment class action, brought a motion to set aside a Registrar's Order dismissing his appeal for delay and sought an extension of time to perfect the appeal.

The court applied the test for setting aside a dismissal order, noting the moving party had an intention to appeal, provided a reasonable explanation for the delay related to obtaining issued and entered orders, and demonstrated an arguable case on the merits.

The court found that truncating the appeal based on a procedural irregularity would be contrary to the interests of justice.

The motion was granted, the dismissal order was set aside, and an extension of time was granted.

The appellant, a class member in a train derailment class action who had an individual trial for damages, brought a motion to set aside a Registrar's order dismissing his appeal for delay and to extend the time to perfect the appeal.

The court applied the test for setting aside a dismissal for delay, noting that the appellant had a continuous intention to appeal, provided a reasonable explanation for the delay related to difficulties in settling the trial judge's orders, and that the respondents suffered no prejudice.

Crucially, the court found that the appellant had an arguable case on appeal regarding the trial judge's credibility assessments and evidentiary rulings.

The motion was granted, the dismissal was set aside, and the appellant was granted an extension of time to perfect the appeal.

The court determined costs following a 106-day individual assessment trial in a class action where the plaintiff recovered $50,000 after claiming $60,000,000.

The plaintiff sought over $7,000,000 in costs, including nearly $3,000,000 in interest on litigation loans.

The court ruled that interest on litigation loans is not a recoverable disbursement.

Finding that the plaintiff unreasonably rejected multiple offers to settle from the defendants, the court awarded the plaintiff partial indemnity costs up to the date of the defendants' first offer in 2009, and awarded the defendants their partial indemnity costs thereafter, resulting in a net costs award of over $2.3 million payable by the plaintiff to the defendants.

The plaintiff, a class member in a class action arising from a 1999 VIA Rail train derailment, sought over $60 million in damages, primarily for past and future loss of income and future care costs.

The plaintiff claimed the accident caused severe, debilitating injuries that destroyed his highly lucrative consulting business in Poland and Eastern Europe.

The court found the plaintiff and many of his lay and medical witnesses lacked credibility, noting significant inconsistencies, lack of documentary evidence (such as tax returns and banking records), and evidence of extensive post-accident travel and business activities.

The court rejected the income loss and future care claims entirely, awarding only $50,000 in general damages for minor soft tissue injuries.

The plaintiff brought a medical malpractice action against two anaesthetists after experiencing intra-operative awareness during a robotic-assisted laparoscopic hysterectomy.

Due to the plaintiff's malignant hyperthermia, the defendants used Total Intravenous Anaesthesia (TIVA) rather than inhaled anaesthetic gases.

The court found that the supervising anaesthetist met the standard of care.

However, the court found that the primary anaesthetist breached the standard of care by administering an inadequate infusion rate of Propofol, particularly after significantly reducing the nitrous oxide levels.

The court concluded that this breach caused the plaintiff's intra-operative awareness.

The plaintiff underwent cataract surgery performed by the defendant ophthalmologist.

Prior to surgery, the defendant measured the plaintiff's eyes using an older A-scan method, which produced highly variable results.

The defendant failed to inform the plaintiff of these variable results and the increased risk of not achieving her expected visual outcome, nor did he recommend the more accurate IOL Master method at that time.

The surgery resulted in significant under-correction (hyperopia).

To correct this, the plaintiff underwent a piggyback lens surgery, which subsequently caused severe dysphotopsia.

The court found the defendant breached the standard of care regarding informed consent by failing to disclose the material risks associated with the variable A-scan results.

The court established causation and awarded damages for pain and suffering, past income loss, future care costs, and a Family Law Act claim for the plaintiff's son.

During a trial for damages arising from a railway accident, the plaintiff (a class member) sought to qualify an expert witness to provide opinion evidence on the profitability of a proposed European pipeline project, claiming a loss of opportunity.

The defendants objected to the expert's admissibility.

Following a voir dire, the court refused to qualify the expert.

The court found the expert's evidence lacked reliability due to an undisclosed prior business relationship with the plaintiff.

Furthermore, the court held the expert evidence was unnecessary because the plaintiff failed to produce admissible evidence or documentation demonstrating he could have obtained the financing required to build the pipeline.

The applicants, a French-language public school board and a parent, brought a motion for an interlocutory injunction to suspend new regulations enacted by the Ontario Federation of School Athletics Associations (OFSAA).

The applicants argued that the regulations, which restricted students outside designated attendance zones from participating in OFSAA-sanctioned competitions in their designated sport, violated section 23 of the Charter by disproportionately impacting minority language students attending a specialized sports-study program.

The court applied the RJR-MacDonald test, finding a serious constitutional issue, irreparable harm due to the potential assimilation and loss of students, and a balance of convenience favouring the applicants.

The interlocutory injunction was granted.

The applicant, a secondary school student, alleged discrimination based on the respondents' sports eligibility policies after she transferred schools.

She sought to amend her application to increase her claim for damages and add factual allegations regarding her exclusion from a basketball tournament.

The respondents opposed the amendments, arguing prejudice.

The Tribunal granted the request to amend, finding no prejudice to the respondents as the new allegations were limited and the increased damages claim did not change the nature of the allegations.

A case management conference was ordered to address constitutional issues and hearing logistics.

The applicant, a high school student, sought an interim remedy to allow her to play interschool sports at her new French-language school, despite a Transfer Policy that restricted her eligibility for one year.

She alleged the policy discriminated on the basis of ancestry, place of origin, citizenship, ethnic origin, and age.

The Tribunal denied the request for an interim remedy, finding serious doubt about its jurisdiction because the Code's definition of age is restricted to persons 18 years or older, and the applicant's claim relied on a constitutional challenge to that definition.

The applicants, francophone students attending a designated Sports School outside their residential boundaries, alleged that the respondent's by-law modification restricting athletic eligibility for out-of-boundary students disproportionately affected them based on ancestry and ethnic origin.

They requested an interim remedy to suspend the modification.

The Tribunal denied the interim remedy, finding no arguable case that the modification disproportionately affected francophone students compared to anglophone students.

Consequently, the Tribunal directed a summary hearing on its own initiative to determine if the applications should be dismissed for having no reasonable prospect of success.

The applicant sought an order referring her former solicitor’s account for assessment following settlement of a personal injury action arising from a motor vehicle accident.

The solicitor had acted under a retainer providing for payment of up to 30% of any recovery and deducted his fee from settlement funds received in trust.

The court held that the retainer constituted a contingency fee agreement within the meaning of the Solicitors Act and failed to comply with statutory and regulatory requirements, including provisions governing contingency fee agreements and the need for court approval where a minor was represented by a litigation guardian.

Although the account had already been paid, the court found special circumstances justifying an assessment, including statutory non‑compliance, lack of required court approval, concerns about the work performed relative to the fee charged, and the involuntary nature of the payment.

The solicitor’s account was therefore referred for assessment.

The plaintiff developed a lesion on her foot and was referred by her family doctor to a dermatologist, who then referred her to a plastic surgeon.

The lesion was eventually excised and diagnosed as a malignant melanoma, resulting in severe health consequences.

The plaintiff sued both specialists for medical negligence.

The Superior Court of Justice found both defendants liable.

The dermatologist breached the standard of care by failing to adequately communicate his findings and the urgency of the situation in his referral note.

The plastic surgeon breached the standard of care by failing to urgently excise the lesion despite observing signs of a possible melanoma.

The court concluded that their combined negligence materially contributed to the delayed diagnosis and the plaintiff's resulting damages.

The appellants appealed a trial judgment declaring the respondent the owner of a parcel of land and ordering its conveyance.

The trial judge found that the appellants promised to convey the land to the respondent in exchange for road construction work.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's factual findings.

The Court also held that the agreement was not frustrated by municipal conditions and that written municipal applications signed by the appellant satisfied the requirements of section 4 of the Statute of Frauds.

The appellant challenged a contempt order arising from non-payment of a lump-sum support-related amount ordered in dependant support proceedings under Part V of the Succession Law Reform Act.

The Court of Appeal held that rules 60.05 and 60.11(1) of the Rules of Civil Procedure permit contempt enforcement only for orders requiring an act other than the payment of money, and that this includes support orders.

The court rejected any purported family law exception and held that the Rules displaced any inherent jurisdiction to use contempt for money judgments in proceedings governed by the Rules of Civil Procedure.

The contempt order was set aside and the motion for contempt was dismissed.