Tara M. Sweeney

The plaintiff brought a motion to abridge the time for service of a cost of care expert report, which was served 34 days before the pre-trial conference instead of the required 90 days under Rule 53.03(1).

The defendant opposed the motion, arguing there was no reasonable explanation for the delay and that admitting the report would cause prejudice.

The court granted the motion, finding that plaintiff's counsel provided a reasonable explanation of inadvertence due to a busy practice, and that the defendant would not suffer non-compensable prejudice given the trial was still 14 months away when the report was served.

The moving party, the City of Ottawa, sought leave to appeal decisions of the Ontario Land Tribunal.

The Divisional Court granted leave to appeal with costs of $25,000 payable in the discretion of the appeal panel.

The court ordered an expedited appeal process due to an administrative error that had delayed the leave motion.

This decision concerns a request for reconsideration of a prior order granting leave to the plaintiffs to amend their statement of claim.

The defendant argued that an inadvertent error in the draft amendments quoted in the previous reasons was material, suggesting an attempt to introduce a negligent misrepresentation claim after the limitation period.

The court clarified that the actual proposed amendments were less problematic than the version inadvertently quoted.

The court affirmed its previous decision to grant leave to amend, finding the actual proposed amendments were more benign and did not warrant a different outcome.

No costs were awarded for the reconsideration request.

The plaintiffs brought an action against several physicians involved in the treatment of their son, alleging a failure to diagnose Fragile X Syndrome, which led to the birth of a second child with the same genetic disorder.

The plaintiffs moved to amend their statement of claim to provide greater particularity, while the defendant physician moved to strike the claim, arguing he owed no duty of care to the parents of his patient.

The Superior Court of Justice granted the motion to amend, finding it did not introduce a new, statute-barred cause of action.

The court dismissed the motion to strike, holding that it was not plain and obvious that a novel duty of care could not be recognized between a physician and the parents of a patient in the context of genetic testing and family planning.

The moving party sought approval of a settlement dismissing a third party claim without costs.

The court found multiple deficiencies in the motion record, including failure to properly cite the grounds for the motion, failure to include pleadings, and failure to address whether the third party defended the main action, which would trigger the requirement for court approval under Rule 7.08 due to a plaintiff being under disability.

The court also noted the draft order was deficient.

The motion was adjourned with directions to file a proper motion record.

The appellant developer appealed a Local Planning Appeal Tribunal decision that repealed a site-specific zoning by-law amendment, preventing the construction of a 16-storey mixed-use building in downtown Kingston.

The Tribunal had found the development incompatible with the area's heritage character and Official Plan policies.

On appeal to the Divisional Court, the appellant argued the Tribunal erred in law by prioritizing heritage over intensification, misapplying zoning by-laws, and improperly imposing height restrictions.

The Divisional Court dismissed the appeal, finding that the Tribunal's balancing of competing policies and assessment of the public interest involved questions of mixed fact and law, not extricable errors of law.

The plaintiff, Moira Caron, sued for damages following a slip and fall in her workplace kitchenette.

The court dismissed the action, finding that the defendants, as occupiers, met their positive duty of care under the Occupiers' Liability Act by maintaining a reasonable system of cleaning, inspection, and call service.

The court also found that the plaintiff failed to prove that her ongoing complaints and inability to return to work after January 2011 were caused by the slip and fall incident, attributing them instead to a pre-existing anxiety disorder.

Following the dismissal of the defendant physicians' summary judgment motion based on the expiry of the limitation period, the court determined costs.

The defendants argued for divided success because the plaintiff had invited the court to grant summary judgment in her favour on the limitation issue.

The court rejected this, finding the plaintiff was entirely successful in resisting the motion.

The court awarded partial indemnity costs of $25,000 to the plaintiff and $10,000 to the intervenor (the plaintiff's former lawyers), noting that while the moving parties should not be saddled with double costs, the intervenor was entitled to a modest award.

The plaintiff suffered a duodenal perforation during outpatient surgery in January 2013, leading to severe complications.

She initiated three actions: the first against her supervising gastroenterologist and "Dr. John Doe" within the limitation period; the second in May 2016 against the gastroenterology fellow who performed the procedure (Dr. Marc Fournier) and other implicated doctors, after identifying them through hospital records; and the third in December 2016 against an emergency doctor (Dr. Hébert) after an expert report suggested his delayed antibiotic administration contributed to her negative outcome.

The defendants in the second and third actions moved for summary judgment, arguing the actions were statute-barred.

The court dismissed the motion, finding genuine issues for trial regarding discoverability, particularly concerning the plaintiff's reasonable diligence in identifying defendants and obtaining expert opinions, given her severe illness and the complexity of the medical facts.

The defendants appealed a motion judge's decision to certify four additional common issues in two related class actions brought by former employees regarding the distribution of a pension plan surplus.

The Divisional Court dismissed the appeal regarding the viability of the cause of action under s. 8(10) of the Pension Benefits Standards Act, 1985, finding it was not plain and obvious that the employer-administrator was not in a conflict of interest.

However, the court allowed the appeal in part to amend the class definition in one of the actions to remove restrictive and vague language.

The plaintiffs moved to certify a class proceeding arising from a pension surplus dispute involving former employees who left the pension plan after taking commuted values during a work force adjustment.

The court treated the action as a companion to related pension litigation and certified common issues mirroring those already certified in the related action, including additional conflict of interest issues under the PBSA.

The court rejected the argument that the proposed class definition was irrationally over-inclusive or under-inclusive, found the class action procedure preferable, and accepted the proposed representatives.

The action was certified, the plaintiffs were directed to deliver an updated litigation plan, and the two related actions were ordered to be tried together subject to the trial judge's discretion.

The appellant law firm acted for the purchaser in a commercial real estate transaction.

After closing, the purchaser discovered a 0.3 metre reserve on the property that required a significant cost recovery payment to the municipality for road access.

The purchaser successfully sued the law firm for negligence.

On appeal, the law firm challenged the negligence finding and the dismissal of its cross-claim against the vendor for contribution and indemnity.

The Court of Appeal dismissed the appeal, finding that the law firm failed to properly investigate the access issues raised by the reserve, and that the vendor had no legal or equitable obligation to disclose the unregistered cost recovery agreement.

The applicants brought an application for judicial review to challenge the Chief Coroner's decision not to hold an inquest into the death of their son.

At the hearing, the applicants withdrew their request for an inquest and instead sought an order in the nature of mandamus to compel the Coroner's Office to change the manner of death determination from suicide to undetermined.

The Divisional Court dismissed the application, holding that the applicants only had standing to challenge the decision not to hold an inquest, and that mandamus could not be used to compel the Coroner to exercise discretionary investigative functions or to usurp the role of a coroner's jury.

The plaintiff was injured when she was dragged by a car and then struck when the driver reversed.

The driver's insurer denied coverage, arguing the driver's actions were intentional and thus excluded under s. 118 of the Insurance Act.

The motion judge granted summary judgment, finding the insurer had a duty to defend and indemnify the driver and his parents, and awarded full indemnity costs to the insureds.

The Court of Appeal dismissed the insurer's appeal, holding there was no genuine issue requiring a trial regarding the driver's intent, as the evidence showed the harm was not intentional.

The court also upheld the duty to defend and the costs awards.

The appellants, former employees of CMHC, sought to certify class proceedings claiming that CMHC breached its duties by failing to partially terminate its pension plan and distribute the surplus to them after a workforce downsizing.

The motion judge and Divisional Court refused to certify the common issues, finding no viable cause of action.

The Court of Appeal dismissed the appeal, holding that under the Pension Benefits Standards Act, 1985, the court lacks jurisdiction to order an employer to partially terminate a pension plan or to award damages premised on a partial termination.

The court also upheld the refusal to certify a misrepresentation claim and the denial of costs out of the pension fund.

The appellant farmer sued the respondent, claiming it supplied animal feed that caused death and illness to his livestock.

The motion judge granted summary judgment dismissing the action, noting the appellant failed to present expert evidence or cross-examine the respondent's affiant.

The Court of Appeal dismissed the appeal, finding the motion judge correctly concluded the appellant failed to put his best foot forward and meet his evidentiary burden.

The appellants appealed a Master's order granting summary judgment dismissing their action against the respondents.

The action arose from the allegedly defective installation of a hot water heater in their new home, which they claimed caused carbon monoxide exposure and adverse health effects.

On appeal, the appellants argued the Master erred by denying an adjournment, exceeding his jurisdiction, reversing the burden of proof, and applying the wrong legal test for causation.

The Divisional Court dismissed the appeal, finding that the Master correctly applied the law, properly held the moving parties to their burden of proof, and correctly concluded that the appellants failed to present sufficient evidence to establish a genuine issue for trial regarding causation.

The appellants, including the builder and contractors, appealed a trial judgment awarding damages to the respondent condominium corporation for structural deficiencies in a block back-up wall.

The appellants argued the action was barred by res judicata, issue estoppel, and the six-year limitation period, and challenged the findings of breach of warranty and negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the structural defects could not have been discovered earlier with reasonable diligence, and that the warranty clause, interpreted contra proferentem, did not limit claims to one year.

The damages assessment was also upheld.

The appellants appealed an order of Justice Cosgrove dated July 8, 2003, which made findings of contempt.

The Court of Appeal agreed with counsel that it was an appropriate case to allow the appeal and set aside the findings of contempt in accordance with a filed draft order.