Stuart A. Zacharias

This motion concerns applications for leave to intervene as friends of the court in an appeal involving a municipal transit authority's refusal to post a political advertisement.

The motion judge considered four proposed interveners: Egale Canada, Free Speech Union of Canada, Charter Advocates Canada, and Association for Reformed Political Action.

The court applied the established test for intervention in constitutional cases, which is more relaxed than in non-constitutional matters.

The motion judge granted leave to Egale Canada and Association for Reformed Political Action, finding they had distinct perspectives and real, substantial interests in the subject matter.

The motions by Free Speech Union of Canada and Charter Advocates Canada were dismissed as they failed to demonstrate how their participation would assist the court or provide perspectives distinct from the immediate parties.

A putative class action concerning allegations of systemic negligence and breaches of fiduciary duty in children's homes.

The defendants brought a pre-certification motion seeking production of the plaintiff's and supporting affiants' Children's Aid Society files, as well as alternative relief requesting that the applicable Children's Aid Societies produce the files of the supporting affiants.

The court dismissed the motion, finding that the defendants failed to establish that the Children's Aid Society files were necessary and relevant to the issues on certification.

The court emphasized the high burden on parties seeking production of child welfare files due to privacy protections and the statutory prohibitions under the Child, Youth and Family Services Act.

The court also clarified that in systemic negligence cases, certification can be determined without reference to individual class members' circumstances.

The plaintiff was awarded costs of $12,500.

This is an appeal from a medical malpractice judgment where the trial judge found the appellant physician negligent in treating a stroke victim, leading to permanent injuries.

The core issue on appeal was causation: whether the trial judge erred in finding that the physician's negligence caused the injuries, specifically by not requiring the plaintiff to establish precisely which treatment option would have prevented the unfavourable outcome.

The Court of Appeal dismissed the appeal, affirming the trial judge's robust and pragmatic application of the "but for" causation test, particularly in the context of an evidentiary gap created by the defendant's negligence.

The plaintiff, Songfu Liu, sued his surgeon, Dr. Jonathan Chan, alleging fraudulent inducement to undergo unnecessary prostate surgery by manipulating test results.

Both parties brought motions for summary judgment.

The court found no evidence of fraud, confirming that Mr. Liu had prostate cancer and that the surgery was medically appropriate based on expert evidence.

The plaintiff's motion for summary judgment was dismissed, and the defendant's motion for summary judgment was granted, leading to the dismissal of the entire action.

This decision addresses costs and prejudgment interest following a seven-day trial where the plaintiffs were awarded $361,875.33 in damages.

The plaintiffs sought $220,915.33 in partial indemnity costs, while the defendant proposed $154,697.70.

The court, applying the modern costs rules, awarded the plaintiffs $130,000 in fees and $50,809.21 in disbursements, totaling $197,709.21 in costs, plus $1,698.90 in prejudgment interest.

The court emphasized proportionality, the non-applicability of the old cost grid, and the need for detailed information for claimed disbursements.

The plaintiff sued her plastic surgeon for negligence, alleging lack of informed consent for a breast reduction surgery.

She claimed the surgeon failed to disclose the material risk of fat necrosis, which was elevated due to her obesity and smoking, and which she subsequently suffered.

The court found that while the surgeon did not specifically disclose the risk of fat necrosis, and should have, the plaintiff failed to establish causation.

Applying a modified objective test, the court concluded that both the plaintiff and a reasonable person in her circumstances would have proceeded with the elective surgery due to significant and persistent back pain, despite the very low, albeit material, risk.

Therefore, the surgeon was not held liable for damages.

The appellant insurer appealed a motion judge's determination that its automobile insurance policy, which included an OPCF 44R Family Protection Coverage endorsement, provided uninsured motorist coverage to the spouse of an employee.

The employee was a delivery driver with a flexible schedule who had discretionary access to the company van during business hours.

The spouse was struck by an uninsured motorist after the company opened for business but before the employee arrived at work.

The court held that the van was available for the employee's "regular use" at the time of the accident, satisfying the temporal nexus requirement under section 2 of the endorsement.

The spouse qualified as an "insured person" under section 1.6(b) of the endorsement.

Police officers sued Crown Attorneys for negligent legal advice provided during a "Mr. Big" undercover investigation that led to the plaintiff's arrest and eventual acquittal.

The police crossclaimed against the Crown Attorneys for contribution and indemnity.

The Court of Appeal held that prosecutorial immunity barred the crossclaim and that Crown Attorneys do not owe a duty of care to police in respect of legal advice provided.

The court emphasized the separate and independent roles of police and Crown Attorneys in the administration of justice and rejected arguments that immunity should not apply to pre-charge conduct or claims by police.

The plaintiffs brought an action for damages following a trip and fall incident involving an elevator mislevelling at a condominium.

The defendants, including the condominium corporation, property manager, elevator maintenance company (thyssenkrupp), and security company, each brought motions for summary judgment, arguing there were no genuine issues for trial.

The court examined the defendants' compliance with their duties under the Occupiers Liability Act, relevant regulations, and maintenance contracts, particularly concerning elevator safety and maintenance.

The court found that the defendants had reasonable systems in place, complied with the CSA B44 Code and other legislation, and that the plaintiffs failed to establish a causal link between any alleged negligence and the injuries.

All summary judgment motions were granted, dismissing the plaintiffs' action.

The appellants appealed the dismissal of their action for construction deficiencies in their cottage.

The motion judge had granted summary judgment to the respondents on the basis that the appellants' claims were statute-barred under the Limitations Act, 2002, finding that the claims were discoverable in 2009 when the appellants first noticed problems with a sinking deck pier.

The Court of Appeal allowed the appeal, finding that the motion judge made material misapprehensions of the expert evidence and erred in his discoverability analysis.

The court held that the appellants did not have sufficient knowledge of the construction defects until receipt of the Terraprobe report in 2012, which identified that the stone retaining wall and cottage foundation had been negligently constructed on loose soil.

The court emphasized that knowledge of a problem is insufficient; the claimant must know that the loss is non-trivial and that litigation is an appropriate remedy.

The appellants appealed a trial judgment dismissing their negligence action arising from an injury sustained at a municipal winter festival.

The plaintiff was injured when she struck a piece of hardened ice protruding from a snow slide at the City of Barrie's Winterfest event.

The trial judge found that while the injury was caused by the ice, the municipality had not breached the standard of care in maintaining the slide.

The appellants raised three grounds of appeal challenging the characterization of the ice as "small," the trial judge's inference from hearsay evidence, and the standard of care analysis.

The Court of Appeal upheld the trial judgment on all grounds, finding no palpable and overriding error.

The appellant appealed a summary judgment decision dismissing his action against the Ottawa Police Services Board for malicious prosecution, negligent investigation, and Charter infringement.

The appellant had been arrested and charged with first-degree murder, conspiracy to commit murder, and possession of explosives.

He was convicted at trial but the conviction was overturned on appeal due to misdirection and inadmissible hearsay evidence.

On retrial, the Crown's case collapsed due to evidentiary difficulties and the appellant was acquitted.

The Court of Appeal upheld the summary judgment, finding that the committal for trial and the order for a new trial constituted sufficient judicial determinations to support reasonable and probable grounds for the prosecution, absent a fundamental flaw in the criminal proceedings.

A minor plaintiff catastrophically injured in a motor vehicle accident in 2007 sought to add a municipality as a defendant in 2015.

The municipality argued the claim was statute-barred under the Limitations Act, 2002 and that notice was not given within the required ten-day period under the Municipal Act, 2001.

The motion judge allowed the amendment.

On appeal, the Court of Appeal held that while the two-year limitation period did not bar the claim (as it began running when the mother held herself out as litigation guardian in June 2014), the ten-day notice requirement was not satisfied.

The mother, as litigation guardian, had no reasonable excuse for failing to give notice within ten days of the accident, and the claim against the municipality was therefore barred.

A plaintiff, unsuccessfully prosecuted for murder, sued police investigators and Crown attorneys for various torts.

The motion judge dismissed the plaintiff's claim against the Crown due to prosecutorial immunity and struck a cross-claim for contribution, but allowed a cross-claim for indemnity based on negligent legal advice to proceed.

The Crown defendants sought leave to appeal this decision.

Leave to appeal was granted, as the motion judge failed to adequately consider policy reasons against recognizing a duty of care from Crown attorneys to police, which raised doubts about the correctness of the order.

The plaintiff, James Rausch, sued the City of Pickering for damages arising from alleged trespass, abuse of process, malicious prosecution, and negligence related to the enforcement of by-laws concerning her wild boar farming operation.

The court dismissed the claims for trespass due to de minimis damages, and abuse of process and malicious prosecution for lack of improper purpose and causation.

While the City was found negligent for failing to train its by-law officers on the Farming and Food Production Act, the plaintiff's claim for damages for loss of animals and business revenue was dismissed because her actions in killing the wild boars were deemed unreasonable and she failed to adequately prove the quantum of damages.

The defendant, having successfully obtained summary judgment, sought costs of both the summary judgment motion and the action.

The plaintiff conceded liability for costs but disputed the quantum.

The court, applying Rule 57 factors and principles from appellate decisions, fixed partial indemnity costs for the motion and the action, rejecting the plaintiff's proposed all-inclusive amount and adjusting the defendant's requested amounts to account for internal billing and potential overlap with a resolved claim.

The minor plaintiff, Bayden Zachary Azzeh, brought a motion to add the City of Greater Sudbury and other parties as defendants in an action for traumatic brain injuries sustained in a 2007 motor vehicle accident.

The City opposed, arguing prejudice due to late addition, an expired limitation period, and failure to meet the Municipal Act's ten-day notice requirement.

The court found no uncompensable prejudice to the City, determined the limitation period for the minor did not run until a litigation guardian was appointed (June 2014 at earliest), and accepted that being an infant constituted a reasonable excuse for the initial lack of municipal notice.

The court further found that the subsequent litigation guardian provided notice within ten days of her appointment.

The motion to add the City as a defendant was granted, and other parties were added by consent, with the order made nunc pro tunc.