Warren WhiteKnight

The appellant doctor appealed a trial judgment finding him liable for negligently administering a tetanus vaccine, which caused the respondent to develop a frozen shoulder and prevented her from working.

The appellant argued the trial judge erred in assessing credibility, applying the 'but for' causation test, and addressing mitigation of damages.

The Court of Appeal dismissed the appeal, finding no reviewable errors in the trial judge's credibility findings, causation analysis, or conclusion that the appellant failed to prove mitigation was possible.

The applicant requested reconsideration of a Tribunal decision denying her claim for statutory accident benefits.

The applicant had witnessed a motor vehicle accident that resulted in the death of her husband and claimed psychological injuries from the event.

The original decision found she was not 'involved in' the accident under s. 3(1)(b) of the Schedule because she was merely a witness and was not struck by a vehicle.

On reconsideration, the applicant alleged factual errors regarding the medical evidence and the identity of the vehicle, as well as legal errors in the application of case law.

The Tribunal dismissed the request, finding that the applicant was attempting to re-weigh evidence and re-litigate the case, and that she failed to establish any material error of fact or law that would have changed the outcome.

The applicant sought statutory accident benefits for psychological injuries sustained after witnessing a police cruiser strike hydro wires, which subsequently killed her husband.

The respondent denied the claim on the basis that the applicant was not an 'insured person' under s. 3(1) of the Statutory Accident Benefits Schedule.

The Licence Appeal Tribunal found that the applicant was merely a bystander and was not 'involved in' the accident, as she was not struck by the vehicle and her psychological impairments stemmed from grief rather than a fear for her own safety.

The application for benefits was dismissed.

The plaintiff, a registered nurse, brought a medical negligence action against the defendant, a family medicine resident, alleging improper administration of a tetanus vaccination.

She claimed the injection was administered too high and too anterior on her left arm, causing immediate severe pain and a subsequent debilitating shoulder condition.

The court evaluated the standard of care for landmarking and administering intramuscular deltoid injections.

Due to the truncated nature of the text, the final determination on liability and damages is not disclosed.

The defendants brought a motion to compel the plaintiff to attend defence medical examinations and to extend the time for serving expert reports.

The plaintiff opposed, arguing the defendants had no reasonable explanation for their significant delay in complying with the Rules of Civil Procedure and a consent timetable order.

The court applied the conjunctive test under Rule 53.08, which requires both a reasonable explanation for the failure and that granting leave would not cause non-compensable prejudice or undue delay.

The court found that the defendants' explanations, including a long-standing intention to obtain reports, misunderstanding of deadlines, and inadvertence over an eight-year period, did not constitute a reasonable explanation.

As the first part of the test was not met, the motion was dismissed, and the plaintiff was awarded costs.

This motion addressed Security National's request to add additional defendants (People on Bikes, Gordon Townley, and His Majesty the King in Right of Ontario) to an existing third-party claim, almost six years after the incident and after the expiry of the statutory limitation period.

The court determined that the applicable rule for adding parties to an existing claim was Rule 5.04(2), not Rule 29.02(1.2), which required considering prejudice to both the plaintiff and the proposed new parties.

The court found that Security National failed to demonstrate that the information regarding the proposed defendants was not discoverable earlier with due diligence, thus prejudicing the proposed defendants due to the expired limitation period.

Furthermore, the court found that allowing the motion would cause significant delay and increased costs, resulting in actual prejudice to the plaintiff, Erin Townley, who has suffered serious injuries and seeks closure.

The court also noted the questionable merit of the claim against uninsured proposed parties.

Consequently, Security National's motion was denied.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision which found she was not catastrophically impaired and denied four treatment plans.

The Vice-Chair dismissed the reconsideration regarding catastrophic impairment, finding no error of fact or law in the original assessment of causation for the applicant's TMJ.

However, the Vice-Chair found the Tribunal erred in law by relying on the 260-week limitation period to deny the treatment plans without considering their reasonableness and necessity, contrary to the persuasive reasoning in Han v. Wawanesa.

Upon reviewing the merits, the Vice-Chair found all four treatment plans for occupational therapy, home modifications, and physiotherapy to be reasonable and necessary to address the applicant's accident-related impairments.

The reconsideration was granted in part, and the treatment plans were approved.

The defendants in a motor vehicle accident case brought a motion to compel the plaintiff to attend three defence medical examinations, months before a scheduled jury trial.

The plaintiff opposed, citing the defendants' non-compliance with the Rules of Civil Procedure and a consent order that set a deadline for expert reports, which the defendants missed.

The court dismissed the motion, finding no reasonable explanation for the defendants' significant delays in arranging the examinations and bringing the motion.

The court emphasized that compelling attendance for examinations whose resulting reports would be presumptively inadmissible at trial, due to the missed deadlines and lack of a motion to extend time for service, was contrary to principles of efficiency and proportionality.

The appellant appealed a decision of the Licence Appeal Tribunal to the Divisional Court while a request for reconsideration of that decision was still pending before the Tribunal.

The respondent raised a preliminary objection that the court lacked jurisdiction because the decision was not final.

The Divisional Court agreed, holding that it has no jurisdiction to hear an appeal from an interlocutory decision of the Tribunal, and that the time for appeal runs from the date of the final order on the reconsideration request.

The appeal was dismissed for want of jurisdiction.

The applicant sought statutory accident benefits following a motor vehicle accident, claiming she sustained a catastrophic impairment.

The central issue was whether the applicant met the 55% Whole Person Impairment (WPI) threshold under the AMA Guides.

The applicant relied on a 12% WPI rating for a temporomandibular joint (TMJ) diagnosis.

The Tribunal found that the applicant failed to establish on a balance of probabilities that the TMJ diagnosis was caused by the accident, applying the "but for" test.

Without this 12% rating, the applicant's WPI fell short of the 55% threshold.

Consequently, the applicant was not deemed catastrophically impaired and was denied entitlement to the disputed medical, rehabilitation, and case management benefits, as more than 260 weeks had elapsed since the accident.

The plaintiff suffered a wrist fracture and attended the emergency room, where she was assessed by the defendant physician.

The physician discharged the plaintiff to follow up with her family health clinic but failed to provide adequate verbal instructions regarding the need to see an orthopedic surgeon within 7-10 days, nor did he document this timeframe in his chart.

The plaintiff experienced a delayed referral to an orthopedic surgeon, resulting in the fracture healing in a malposition that required surgery.

The court found that the defendant physician breached the standard of care by failing to provide and document adequate discharge instructions, and that this breach caused the plaintiff's poor outcome.

Judgment was issued in favour of the plaintiffs for an agreed-upon amount of damages.

This endorsement addresses three issues arising from a prior trial judgment: the statutory deductible for non-pecuniary damages, the prejudgment interest rate, and the costs of the action.

The court determined that the 2019 statutory deductible applied, reducing the net non-pecuniary damages.

The prejudgment interest rate was fixed at 1%, rejecting the plaintiff's request for a higher rate due to the defendant's conduct.

On costs, the court found the plaintiff was entitled to partial indemnity costs up to the Rule 49 offer date and substantial indemnity costs thereafter, criticizing the defendant's inflexible settlement approach.

The court adjusted the plaintiff's requested hourly rates and disbursements, ultimately fixing fees at $300,000 plus HST and disbursements at $39,864.56 plus HST.

The applicant sought income replacement benefits following a 2002 motor vehicle accident, which the respondent denied in 2011.

The applicant commenced an application at the Tribunal five years after the two-year limitation period expired.

The Tribunal found the respondent's denial was valid and clear, triggering the limitation period.

Applying the four-factor test for extending time under section 7 of the LAT Act, the Tribunal declined to extend the limitation period due to the significant five-year delay and resulting prejudice to the respondent.

The application was dismissed as statute-barred.

The plaintiff, Peter St. Marthe, sued the defendant for injuries sustained in a bicycle-car collision.

The defendant admitted liability, leaving the court to determine damages, contributory negligence, whether the plaintiff met the permanent serious impairment threshold, and if the action was statute-barred.

The court found the plaintiff's claim was not statute-barred, he met the permanent serious impairment threshold, and was not contributorily negligent.

Damages were awarded for non-pecuniary loss, past and future income loss, and future housekeeping and home maintenance expenses.

The plaintiffs sued the defendant cardiac surgeon for failing to obtain informed consent after the plaintiff suffered permanent vision loss following life-saving heart valve surgery.

The defendant moved for summary judgment.

The court held that the presence of a jury notice does not alter the test for summary judgment.

Applying the modified objective test for causation, the court found that even if the remote risk of blindness was a material risk that should have been disclosed, no reasonable person in the plaintiff's position—facing an 80% chance of death within three years without the surgery—would have declined the procedure.

The plaintiff also admitted in cross-examination that he would have consented if presented with the relative risks.

The motion for summary judgment was granted and the action dismissed.

The defendants, CP REIT Ontario Properties Limited and Arcturus Realty Corporation, brought motions for summary judgment to dismiss the plaintiff's claim under the Occupiers' Liability Act.

The plaintiff was struck by a car in a shopping plaza managed by the defendants.

The court considered conflicting expert opinions regarding site safety and pedestrian "desire lines" and the impact of a jury notice on summary judgment motions.

The court found that a genuine issue for trial existed, as a reasonable jury, properly instructed, could find the defendants liable for breaching the Occupiers' Liability Act.

Consequently, the motions for summary judgment were dismissed.

The plaintiff and defendants brought cross-motions to determine the appropriate forum for resolving the quantum of costs following an accepted offer to settle.

The plaintiff sought assessment by an assessment officer under Rule 57.04 of the Rules of Civil Procedure, while the defendants argued for resolution by a judge under Rule 49.09, citing non-compliance with the offer.

The court found that Rule 49.09 did not apply as the defendants were prepared to pay costs, and the issue was the method of adjudication.

The court concluded that the resolution of costs and disbursements should proceed before an assessment officer pursuant to Rule 57.04, emphasizing that Rule 58.01 mandates assessment for costs not fixed by the court.

No costs were awarded for this motion due to the ambiguity of rule interpretation.

The parties sought clarification of a previous order regarding the conditions of the plaintiff's independent medical examinations.

The court issued supplementary reasons clarifying that the prohibition on using a questionnaire in advance of the assessment does not preclude the use of psychometric testing forms.

Furthermore, the condition that the plaintiff's health records not be disclosed to anyone other than defence counsel does not prevent the expert from utilizing administrative staff or a psychometrist.

This endorsement addresses the costs of a contested motion where the defendants successfully obtained independent medical examinations, but on terms largely advocated by the plaintiff.

The court found success was divided, with the plaintiff being "more successful" on the central issue of the conditions for the medical assessments, particularly regarding "ghostwriting" concerns.

Applying Rule 57, the court awarded the plaintiff partial fixed costs, acknowledging the legitimate differences of opinion on novel issues.

The defendant Jamie Macari moved for an order compelling the plaintiff to undergo two independent medical examinations (IMEs) and to pay a late cancellation fee for a missed appointment.

The plaintiff sought additional conditions for the IMEs, specifically regarding "ghost writing" of expert reports, and opposed paying the cancellation fee.

The court allowed the defendant's motion in part, imposing modified conditions for the IMEs to ensure expert reports are solely authored by the examining doctor and are compliant with Rules 33.06 and 53.03(2.1), and ordered the plaintiff to pay a reduced portion of the cancellation fee.