Thomas Curry

The defendant physician in a medical malpractice action sought an extension under rr. 53.03(4) and 53.08(1) of the Rules of Civil Procedure to serve three late expert reports.

The court granted the motion with respect to one report, finding that the unexpected death of the originally retained expert constituted a reasonable explanation for the delay.

However, the court denied the motion for the remaining two reports, holding that trial counsel's admitted inattentiveness to the file and deliberate choice to prioritize other matters did not constitute a reasonable explanation, and that the conjunctive test under the amended r. 53.08(1) required dismissal absent satisfaction of that threshold.

This appeal concerned the appropriate remedy for a party who deliberately accessed the opposing party's privileged information.

The application judge had struck the appellant's Notice of Appearance, barred them from filing evidence, and ordered the Partition Application to proceed undefended.

The appellant argued that this remedy was unpleaded, unproven, and that lesser remedies were available.

The Court of Appeal dismissed the appeal, affirming the application judge's decision.

The court found no error in applying the three-part test for unauthorized access to privileged documents, particularly given the appellant's failure to rebut the presumption of prejudice or propose effective alternative remedies.

In a medical malpractice action, the defendant brought a motion to disqualify the plaintiffs' expert epidemiologist, Dr. Michael Freeman.

The court granted the motion, finding that Dr. Freeman lacked specialized knowledge in the specific medical areas (metabolics and neurology) relevant to the causation question.

His "comparative risk" methodology was deemed outside the mainstream study of epidemiology for specific causation, and his reports indicated a lack of objectivity by primarily critiquing other experts rather than offering independent analysis within his own expertise.

The court also noted that his proposed evidence was not necessary, as the plaintiffs' other expert covered the same points.

The defendant in a medical malpractice action brought a motion at the outset of trial to strike the plaintiffs' jury notice.

The defendant argued that the complex scientific evidence relating to the minor plaintiff's rare metabolic disorder and the issue of causation made the case unsuitable for a jury.

Applying the principles from Kempf v. Nguyen, the court declined to strike the jury notice prior to trial, opting instead for the preferred 'wait and see' approach.

The motion was dismissed with leave to renew after the evidence is completed.

The applicant donor pledged $1 million to the respondent charity to develop a workplace mental health program, payable in three installments.

After paying the first installment, the applicant became dissatisfied with the program's direction, withheld the second installment, and demanded a refund.

The applicant then applied under section 6 of the Charities Accounting Act for an order directing the Public Guardian and Trustee to investigate the charity's use of the funds.

The Superior Court of Justice dismissed the application, finding that the applicant's concerns regarding the program's vision and timeline constituted a private interest rather than a public interest.

The court noted there was no evidence of financial mismanagement to justify the costly and disruptive investigation.

The applicants requested that the judge recuse himself from the present application, arguing that an endorsement he made in a motion four years ago involving the individual applicant demonstrated an apprehension of bias.

The judge reviewed the prior endorsement and the test for apprehension of bias, noting that the reasonable person is vested with knowledge of the judicial process.

The judge concluded that a reasonably informed reader would not find an adverse view had been formed, as the prior endorsement explicitly stated no fault was found with either side.

The recusal request was dismissed.