Stephen J. MacDonald

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 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.

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 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.