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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of April 15, 2024.

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In Denman v Radovanovic, the Court examined the extent of a physician’s duty to obtain informed consent for elective, multi-step medical treatments, and the responsibility for obtaining such informed consent among the several physicians involved in treatment. The decision confirms that the duty to disclose the risks of treatment and to obtain informed consent does not only fall on the physician performing the procedure. It can extend to other consulting physicians who are involved in the treatment.

In Johnson v. Lakeridge Health Corporation, another MedMal case, the Court dismissed the appeal and upheld the trial judge’s finding that a prima facie case on the issue of causation was not established, notwithstanding that negligence had been conceded.

In Matos v. Driesman, the appellant father’s appeal against an order following an uncontested trial seeking to modify child support was dismissed. Since the father’s pleading had been struck for failure to comply with his disclosure obligations, he was found to have no standing to appeal.

Other topics included the right to appeal from an order made in bankruptcy and the dismissal of a motion for security for costs in a family law appeal.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Matos v. Driesman, 2024 ONCA 271

Keywords: Family Law, Child Support, Arrears, Variation, Civil Procedure, Disclosure, Orders, Enforcement, Striking Pleadings, Uncontested Trials, Motions to Change, Matos v. Driesman, 2018 ONCA 660, Freedman v. Freedman, 2022 ONSC 4823, Colucci v. Colucci, 2021 SCC 24

Cardillo v. Medcap Real Estate Holdings Inc., 2024 ONCA 278

Keywords: Bankruptcy and Insolvency, Transfers Under Value, Civil Procedure, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, RSC, 1985, c. B-3, ss 193(a)-(e), Courts of Justice Act, RSO, 1990, c. C.43, s. 7(5), Rules of Civil Procedure, r. 61.16(2.2), Courts of Justice Act, RSO 1990, c C 43, ss. 6, 7(3)(5),  Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Robson (Re) (2002), 33 CBR (4th) 86 (Ont. C.A.), DeMarco v. Nicoletti, 2017 ONCA 417, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

Denman v. Radovanovic, 2024 ONCA 276

Keywords: Torts, Negligence, Medical Malpractice, Duty of Care, Duty of Disclosure, Informed Consent, Causation, Civil Procedure, Evidence, Admissibility, Hearsay, Opinion, Experts, Bias, Costs, Health Care Consent Act, 1996, SO 1996, c. 2, Sched A, s.10(1), s. 29(1), Rules of Civil Procedure, r. 57.01, Reibl v Hughes, [1980] 2 SCR 880, Hollis v Dow Corning Corp, [1995] 4 SCR 634, Van Dyke v Grey Bruce Regional Health Centre (2005), 255 DLR (4th) 397 (Ont CA), Watson v Dr Shawn Soon, 2018 ONSC 3809, Bollman v Soenen, 2014 ONCA 36, Felde v Vein and Laser Medical Centre (2003), 68 OR (3d) 97 (CA), Ross v Welsh, 2003 CanLII 27587 (Ont SC), Levac v James, 2023 ONCA 73, Farej v Fellows, 2022 ONCA 254, R v GF, 2021 SCC 20, Ferguson v Hamilton Civic Hospitals (1983), 144 DLR (3d) 214 (Ont SC), Cuthbertson v Rasouli, 2013 SCC 53, Huisman v MacDonald, 2007 ONCA 391, White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, Wise v Abbott Laboratories, Ltd, 2016 ONSC 7275, R v Whatcott, 2023 ONCA 536

Johnson v. Lakeridge Health Corporation, 2024 ONCA 291]

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Civil Procedure, Evidence, Admissibility, Experts, Rules of Civil Procedure, r. 53.03(03), Clements v. Clements, 2012 SCC 32

Alami v. Haddad, 2024 ONCA 300

Keywords: Family Law, Property, Resulting Trusts, Matrimonial Home, Equalization of Net Family Property, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r.61.06(1), York University v. Markicevic, 2017 ONCA 651, Lavallee v. Isak, 2022 ONCA 290, Heidari v. Naghshbandi, 2020 ONCA 757, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Henderson v. Wright, 2016 ONCA 89

Short Civil Decisions

Sternberg v. Cresford Capital Corporation, 2024 ONCA 283

Keywords: Civil Procedure, Appeals, Leave to Appeal

Margel v. Dawson, 2024 ONCA 275

Keywords: Contracts, Real Property, Mortgages, Damages, Interest, Cheung v. Moskowitz Capital Mortgage, 2018 ONSC 1322, 2257573 Ontario Inc. v. Furney, 2022 ONCA 505

Vyazemskaya v. Safin, 2024 ONCA 288

Keywords: Costs

Public Guardian and Trustee v. Dhuruvasangary, 2024 ONCA 289

Keywords: Wills and Estates, Guardianships, Property, Powers of Attorney, Removal

Ontario (Attorney General) v. $38,570 in Canadian Currency (In Rem), 2024 ONCA 293

Keywords: Civil Procedure, Appeals, Extension of Time, Civil Remedies Act, 2001, S.O. 2001, c. 28, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Nguyen v. Economical Mutual Insurance Co., 2015 ONCA 828, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Philbert v. Graham, 2022 ONCA 122, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.)

Allen v. Kumar, 2024 ONCA 294

Keywords: Civil Procedure, Appeals, Security for Costs


CIVIL DECISIONS

Matos v. Driesman, 2024 ONCA 271

[Harvison Young, Coroza and Gomery JJ.A.]

Counsel:

M. Polisuk, for the moving party

N. R. Leite, for the responding party

Keywords: Family Law, Child Support, Arrears, Variation, Civil Procedure, Disclosure, Orders, Enforcement, Striking Pleadings, Uncontested Trials, Motions to Change, Matos v. Driesman, 2018 ONCA 660, Freedman v. Freedman, 2022 ONSC 4823, Colucci v. Colucci, 2021 SCC 24

facts:

The appellant father, DD, brought an appeal against an order made following an uncontested trial (the “Order”). The proceeding in which that Order was made was initiated in 2015 by the respondent mother, MM, who sought to change the final order for child support for the parties’ two children made in 2010 by Mesbur J. (the “Motion to Change”).

On September 24, 2015, the mother brought the Motion to Change to address the continuation of child support. The Motion to Change requested that the father pay a minimum of $1,000 per month for special and extraordinary expenses related to the children’s York School, extracurricular activities and summer camp.

On September 22, 2017, Paisley J. struck the father’s pleadings due to his failure to comply with earlier disclosure orders. His appeal of this order was dismissed: Matos. This resulted in an uncontested trial of the Motion to Change.

The motion judge imputed $240,000 in income to the father for the calendar year 2015, rising by 3% cost of living each year thereafter. He awarded the mother $505,783.85 in arrears for s. 7 expenses related to the York School, extracurricular activities, summer camp and university expenses for the children. The father appealed from this Order. The mother moved to quash his appeal.

issue:

Does the father have standing to appeal given that his pleadings had been struck?

holding:

Motion granted. Appeal quashed.

reasoning:

No.

The father had no standing to appeal. The Court in Lamothe, at para. 3, held that it “will not typically hear an appeal by a party from an unopposed proceeding” because “[p]articipation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice.” The Court in that case recognized, at para. 3, that there may be exceptions to this rule where the issues raised in the appeal have clear merit or show that an injustice has been done.

The father relied on Freedman, in which the Court found that a party in an uncontested trial can only seek relief claimed and served in the proceeding. In the view of the Court, this case was distinguishable on the basis that Freedman involved claims for entirely different heads of relief. In Freedman, the mother had initially sought spousal and child support, division of property and equalization. During oral argument at the uncontested trial, she sought an order adding various individuals and companies to the proceeding for enforcement purposes, as well as an order awarding the mother damages: para. 18. The trial judge had found that these claims had not been pleaded and therefore could not be granted: see paras. 18 and 82.

In contrast, in this case, the mother had not attempted to claim any new heads of relief and the motion judge did not grant her relief not requested in her pleadings. Her 2015 pleadings in the Motion to Change requested s. 7 expenses. While the types of s. 7 expenses changed as the children grew older, she had not attempted to argue for any new relief. The allegedly new heads of relief were not new. The Court noted that they simply reflected the evolving nature of the sorts of expenses associated with raising and educating children, which the court below accepted as reasonable and necessary in the circumstances of this family.

The Court agreed with the mother’s submission that to require parties to submit a new application or amend their pleadings any time a s. 7 expense changed would be an unreasonable burden. The Court also agreed that it was clear from the record that the father was aware that university expenses were at issue. In a motion to change brought by the father before Nishikawa J., he referenced the oldest child’s university tuition when arguing that he was unable to continue to pay child support and s. 7 expenses.

The father’s pleadings had been struck for his failure to comply with his disclosure obligations. As the Supreme Court of Canada has emphasized recently, disclosure is the linchpin on which fair child support depends: Colucci at para. 48.


Cardillo v. Medcap Real Estate Holdings Inc., 2024 ONCA 278

[Harvison Young, Coroza and Gomery JJ.A.]

Counsel:

F. Scott Turton, for the moving parties

B. Jaffe, for the responding party, B. Riley Farber Inc., Trustee in Bankruptcy of the Estate of Medcap Real Estate Holdings Inc.

M. Krygier-Baum, for the respondents Bennington Financial Corp., Heffner Investments Limited, Scott Wilson and Physiomed Health Holdings Inc.

Keywords: Bankruptcy and Insolvency, Transfers Under Value, Civil Procedure, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, RSC, 1985, c. B-3, ss 193(a)-(e), Courts of Justice Act, RSO, 1990, c. C.43, s. 7(5), Rules of Civil Procedure, r. 61.16(2.2), Courts of Justice Act, RSO 1990, c C 43, ss. 6, 7(3)(5),  Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Robson (Re) (2002), 33 CBR (4th) 86 (Ont. C.A.), DeMarco v. Nicoletti, 2017 ONCA 417, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22, Hillmount Capital Inc. v. Pizale, 2021 ONCA 364

facts:

J.C. is Medcap’s principal. Medcap’s largest known asset is a commercial building located in Hamilton (the “Property”). Five mortgages were registered against the Property and the Property had been leased to 1869541 Ontario Inc. (“186”). Within the bankruptcy proceedings, the Trustee brought a motion challenging the lease to 186 as a transfer at undervalue (the “TUV Motion”).

In addition to the bankruptcy proceedings, the Cardillo Parties brought an action in Hamilton (the “Foreclosure Action”) relating to a mortgage allegedly assigned to 2503866 Ontario Inc. (“250”). The Trustee and the respondents (all of whom are respondents to the Foreclosure Action) challenged 250’s rights under this mortgage, described by Kimmel J. as the “250 Mortgage Dispute”.

On motion by the Trustee, Kimmel J. consolidated the Foreclosure Action, the 250 Mortgage Dispute and the TUV Motion and ordered the trial of an issue in the 250 Mortgage Dispute in the bankruptcy proceeding in Toronto. She ordered that the 250 Mortgage Dispute be stayed. She rejected the cross-motion by the Cardillo Parties that the bankruptcy proceeding and the TUV Motion be transferred to Hamilton.

The Cardillo Parties filed a Notice of Appeal and the Trustee brought a motion to dismiss the appeal on the basis that the Cardillo Parties did not have an automatic right of appeal under ss. 193(a) or (c) of the BIA. The chambers judge allowed the Trustee’s motion, finding that there was no automatic right of appeal and denied leave to appeal. The Cardillo Parties brought a motion to a panel of the Court to review the chambers judge’s order.

issues:
  1. Was the chambers judge correct in ruling that a single judge can make an order that an appeal is not of right but rather requires leave and then go on to deny leave?
  2. Was it procedurally unfair that the chambers judge denied leave to appeal without affording the Cardillo Parties an opportunity to have a leave motion?
holding:

Motion dismissed.

reasoning:
  1. Yes

The Cardillo Parties argued that there was no conflict between s. 193(e) of the BIA and r. 61.16(2.2) because while s. 193(e) deals with motions for leave to appeal, r. 61.16(2.2) does not. Section 193(e) grants a single judge the authority to grant or deny leave to appeal, while r. 61.16(2.2) requires that a motion in this court for an order that finally determines an appeal, other than an order dismissing the appeal on consent, must be heard by a three-judge panel. In the view of the Cardillo Parties, a single judge was permitted to determine whether leave to appeal should be granted where a motion was brought under s. 193(e) of the BIA because, at that stage, no appeal exists until leave is granted.

The Cardillo Parties argued that where a party appeals as of right, an appeal has come into existence. Any motion to dismiss it would finally determine the appeal, therefore requiring a panel pursuant to r. 61.16(2.2).

A panel may interfere with the order if the chambers judge failed to identify the applicable principles, erred in principle or reached an unreasonable result. None of these grounds existed here.

The chambers judge addressed every ground raised by the Cardillo Parties. He considered whether his decision would “finally determine” the appeal and found that it did not. He found that an order denying leave to appeal under s. 193(e) of the BIA would not fall within the language of r. 61.16(2.2). Even if it did, r. 61.16(2.2) could not be given effect due to the constitutional doctrine of paramountcy. There was no error in principle with these findings.

The fact that the issue of leave was raised via a challenge to the asserted right of appeal did not affect a single judge’s authority to make a determination of whether leave should be granted. That decision was made pursuant to s. 193(e) of the BIA and therefore any conflict with r. 61.16.(2.2) was resolved in favour of the federal BIA. Paramountcy operates to give a single judge the power to make a determination of whether to grant or deny leave where the BIA is involved.

  1. No

The Cardillo Parties argued that Kimmel J.’s decision was not simply procedural because the stay order affected the Cardillo Parties’ ability to enforce their mortgages. They submitted that it was procedurally unfair to deny leave to appeal when they had not had a chance to bring a motion for leave.

The Court did not agree that the chambers judge made any error in finding that Kimmel J.’s decision was purely procedural. There was a complex network of mortgage and bankruptcy proceedings and the only issue before her, as she put it, was “how, where and when” the 250 Mortgage Dispute underlying both the Foreclosure Action and the TUV Motion should be adjudicated. The Court agreed with the chambers judge’s assessment that the resolution of this issue “did not determine any substantive rights of the parties” and was “a run-of-the-mill procedural order designed to move a specific dispute along to a final adjudication on the merits in the most expeditious and least expensive manner.”

The Court did not agree with the Cardillo Parties argument that there was any procedural unfairness by the chambers judge determining the issue of leave before the Cardillo Parties had brought a motion for leave. This argument was raised before the chambers judge. The Cardillo Parties were therefore aware that a determination of whether leave should be granted might be made by the chambers judge and had an opportunity to make submissions on the merits of this issue at that stage.


Denman v. Radovanovic, 2024 ONCA 276

[Rouleau, Benotto and Copeland JJ.A.]

Counsel:

J.T. Curry, J. Lilles and K.R. Costin, for the appellants

S. Mandel and A. Mladenovic, for the respondents

Keywords: Torts, Negligence, Medical Malpractice, Duty of Care, Duty of Disclosure, Informed Consent, Causation, Civil Procedure, Evidence, Admissibility, Hearsay, Opinion, Experts, Bias, Costs, Health Care Consent Act, 1996, SO 1996, c. 2, Sched A, s.10(1), s. 29(1), Rules of Civil Procedure, r. 57.01, Reibl v Hughes, [1980] 2 SCR 880, Hollis v Dow Corning Corp, [1995] 4 SCR 634, Van Dyke v Grey Bruce Regional Health Centre (2005), 255 DLR (4th) 397 (Ont CA), Watson v Dr Shawn Soon, 2018 ONSC 3809, Bollman v Soenen, 2014 ONCA 36, Felde v Vein and Laser Medical Centre (2003), 68 OR (3d) 97 (CA), Ross v Welsh, 2003 CanLII 27587 (Ont SC), Levac v James, 2023 ONCA 73, Farej v Fellows, 2022 ONCA 254, R v GF, 2021 SCC 20, Ferguson v Hamilton Civic Hospitals (1983), 144 DLR (3d) 214 (Ont SC), Cuthbertson v Rasouli, 2013 SCC 53, Huisman v MacDonald, 2007 ONCA 391, White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, Wise v Abbott Laboratories, Ltd, 2016 ONSC 7275, R v Whatcott, 2023 ONCA 536

facts:

The central issues underlying this appeal were the nature and extent of a physician’s duty to obtain informed consent for a multi-step course of elective medical treatment, and on which physicians involved in treatment this duty rested.

In 2015, the respondent MD suffered a catastrophic brain bleed because of a medical procedure aimed at curing an anterior ventricle malformation (“AVM”) in his brain. There was no suggestion that the procedure, which was part of a multi-step treatment plan, was performed in a negligent manner. Rather, the respondents brought a claim alleging that the appellants, three doctors at the Toronto Western Hospital (“TWH”), had failed to obtain MD’s informed consent. The respondents sued in negligence, alleging that if the appellants had not breached their duty of disclosure, neither MD nor a reasonable person in his circumstances would have proceeded with the recommended elective treatment plan.

The issue at trial was whether the appellants were liable based on a failure to obtain informed consent.  The trial judge held that all three appellants were liable.  The physicians appealed.

issues:
  1. Did the trial judge err in applying the law of informed consent?
  2. Did the trial judge err in disqualifying one of the appellants’ proposed experts?
  3. Did the trial judge err in awarding $3 million in costs?
holding:

Appeal dismissed.

reasoning:
  1. No

The trial judge was required to determine what MD and a reasonable patient in his circumstances would have done had adequate disclosure been made.

MD’s circumstances were considered

The appellants argued that the trial judge failed to consider MD’s personal circumstances when applying the test for informed consent. They argued that the trial judge’s finding that MD would delay treatment until retirement, was unsupported by the evidence in light of this fact. The Court disagreed. The reasons for decision set out the relevant law and, read as a whole, adequately demonstrated that the trial judge was well aware of MD’s personal circumstances in applying the law.

Although MD’s disability precluded him from testifying, the evidence at trial from those who knew him personally disclosed not only that MD intended to resolve his AVM so as to remove the risk of spontaneous bleed, but also that, at the time the plan of treatment was proposed, MD: (a) was doing well and his AVM was asymptomatic; (b) had resumed traveling for pleasure; (c) had resumed his employment and his employer was prepared to accommodate his needs; (d) was the primary breadwinner; (e) was 11 years away from retirement age; (f) was still trying to get a financial plan together for his daughter with a disability; (g) was not a risk taker. The trial judge considered that MD or a reasonable person in his circumstances would have assessed the relative risks and decided whether to treat his AVM or not and, should he wish to treat it, whether to treat it then or defer it to a later time.

Risks that ought to have been disclosed

The appellants submitted that the trial judge erred in imposing a duty to provide exact statistical probabilities. They also took issue with the trial judge’s failure to make a specific finding on what risks ought to have been disclosed to MD, which was a key issue at trial. This, they said, was necessary to understand the basis for the trial judge’s conclusion that, had the risks of the plan of treatment or the third combined treatment been adequately disclosed, neither MD nor a reasonable person in his circumstances would have proceeded with treatment.

The Court did not accept the appellants’ submissions on these points. The trial judge imposed no requirement to provide a specific calculation of the level of risk or specific statistics in explaining the risk. Had MD been given the appropriate information, he would have weighed an immediate 30 to 50 percent upfront risk of permanent neurological deficit against a 40 to 60 percent risk of spontaneous bleed spread over a lifetime. It was clear that neither MD, nor a reasonable person in his situation, would have undertaken the suggested course of treatment.

The appellants argued that because the two first embolizations were carried out without incident, that they were legally irrelevant. They challenged the sufficiency of reasons, arguing that the trial judge did not make any clear findings as to what risks were disclosed to MD prior to the combined third procedure. The Court noted that even if the trial judge had rejected the evidence of MD’s wife and accepted a doctor’s evidence that the respondents were told the risk of significant morbidity or mortality was 3 to 5 percent, that risk assessment was grossly deficient based on the appellants’ own expert.

No error in finding all three appellants liable

The appellants conceded that if the Court confirmed the trial judge’s finding that there was a breach of the duty of informed consent and that causation was established, then Dr.P, as the physician who carried out the embolization procedure that caused the injury, was properly found liable. However, they disputed liability on the part of Dr. tB and Dr. R as they did not bear the responsibility to obtain informed consent for the procedure that resulted in the injury. The Court did not agree that, in the circumstances of this case, the trial judge erred in concluding that Dr. tB and Dr. R shared liability with Dr. P.

The appellants maintained that it was well established that only the physician carrying out the procedure is responsible for obtaining informed consent. The Court disagreed. This notion stems from the pre-Reibl era, when lack of consent was historically associated with the intentional tort of battery. Modern medical treatment may involve a team of doctors working together. Therefore, a physician not performing a procedure may, depending on the circumstances, have a duty of disclosure. Whether there is liability will depend on causation.

The Court held that the trial judge did not err in finding liability on the part of Dr. tB, who provided inadequate disclosure to MD, which ultimately led to MD proceeding with the plan of treatment for his AVM. The Court noted that it is difficult to see how one could say that, in these circumstances, Dr. tB had no responsibility to provide MD with adequate disclosure to enable him to make an informed decision.

The appellants argued that it was unreasonable and an error of law for the trial judge to impose a duty to disclose the risks of multiple procedures in advance of any treatment and to impose liability on that basis. The Court disagreed. The trial judge explained at length why she rejected Dr. tB’s testimony that a single embolization would likely be curative of MD’s condition.

The trial judge found that Dr. tB’s failure to disclose to MD the nature of the multi-step course of elective medical intervention required was simply “not defensible”. Any reasonable patient in MD’s circumstances would want to know what interventions would likely be required to effect a cure and the risks or range of risks associated with the expected course of treatment. Dr. tB failed to provide MD with an estimate of the lifetime risk or range of risk he would be subject to without treatment of his AVM. This information was necessary to enable MD to weigh the relative or comparative risks and benefits between undergoing the plan of treatment and deferring treatment.

The trial judge’s conclusion that Dr. tB did not adequately disclose the risks involved with the plan of treatment being proposed, or even with a single embolization treatment, was well supported in the record and outlined in the reasons. The Court held that Dr. tB’s disclosure to MD was inadequate.

The Court held that there was sufficient causation between Dr. tB’s inadequate disclosure and the injury suffered by MD. The Court accepted that MD was, at each step, offered the choice to proceed or not to proceed with the immediate procedure being undertaken. The Court also accepted that, at each of the three steps, he gave his consent to that procedure. This may well give rise to a defence to a claim in battery, but it was not sufficient to provide a defence to a claim in negligence. As found by the trial judge, had MD been given adequate disclosure by Dr. tB, neither he nor a reasonable person in his situation would have embarked upon the course of treatment.

Unfortunately, MD did not receive adequate disclosure along the way, including before the third combined procedure. Accordingly, the chain of causation was not broken. In conclusion, the Court saw no error in the trial judge’s conclusion that Dr. tB shared liability for the inadequate disclosure to MD.

The appellants also challenged the imposition of liability on Dr. R on the basis that he was not the physician who provided the treatment that caused injury to MD. The Court, as explained above, rejected the proposition that only the physician who provided the treatment that resulted in the injury can be liable in negligence for failing to obtain informed consent.

The trial judge’s finding that, properly informed of the risks, neither MD nor a reasonable person in his circumstances would have agreed to undergo the combined embolization and surgical resection was fully supported by the record. Therefore, but for the combined negligence of Dr. R and Dr. P, MD would not have agreed to the combined procedure and the injury to MD would not have occurred. In the circumstances, there was no basis for interfering with the trial judge’s finding that Dr. R was equally liable.

  1. No

No error in refusing to recognize Dr. Re as an expert witness

At trial, the appellants sought to call Dr. Re, a vascular neurosurgeon and interventional neurologist, as an expert witness. The respondents challenged Dr. Re’s impartiality. Following the voir dire, the trial judge excluded Dr. Re from testifying as a result of bias.

On appeal, the appellants argued that the trial judge made a legal error in failing to apply White Burgess Langille Inman v. Abbott and Haliburton Co., choosing, instead, to ground her reasons in Wise. v. Abbott Laboratories, Ltd. and to apply the factors listed in Wise as a “strict test”.

The Court held that the threshold for interfering with the trial judge’s decision was not met. Nor was the Court satisfied that the trial judge’s reasons were insufficient or that she made any palpable and overriding errors. She applied the correct legal test. She referred to White Burgess. She understood that an expert will be prevented from testifying only if the expert is unable or unwilling to discharge the duty to provide a fair and non-partisan opinion. She considered the Wise decision as setting out a non-exhaustive list of factors that “may be considered when ascertaining bias or impartiality” of an expert witness.

The trial judge did not limit her analysis to the application of the Wise factors. She took into account factors listed in Wise relevant to an assessment of the legal test from White Burgess. The Court also rejected the appellants’ submission that the trial judge’s findings in support of her conclusion were unsupported by the evidence. Deference was owed to the trial judge’s factual findings.

No error in the treatment of the testimony of MD’s wife

The appellants raised objections to parts of the testimony of MD’s wife on the basis that it was hearsay or inadmissible lay opinion evidence.   The Court disagreed that the trial judge failed to grapple with the hearsay issue. The trial judge reviewed the law relating to hearsay. She was clearly alert to the concern in this case that MD’s wife, who she found to be a credible witness, could only testify to her knowledge and, although she could testify as to what she was told by MD, this would not constitute proof that those statements were true. The trial judge, who had instructed MD’s wife not to give evidence as to her belief, was alive to the problems with such evidence.

No error in treatment of Dr. F’s evidence

The appellants submitted that the trial judge failed to rule on defence objections to testimony from the respondents’ expert, Dr. F. The transcript revealed that the trial judge was asked to make and did in fact make an in-trial ruling. She ruled that Dr. F was to be qualified to provide expert evidence in neurology and deal with informed consent issues about the management and care of AVMs.

  1. No

The Court did not grant leave to appeal the costs award. The trial judge’s award of costs was entitled to a high degree of deference. The trial judge’s reasons showed that she thoroughly reviewed the factors to be considered in awarding costs, as outlined in r. 57.01 of the Rules, and made an appropriate award.


Johnson v. Lakeridge Health Corporation, 2024 ONCA 291

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

P. Harte and J. Marin, for the appellants

D. Cruz and S. Willsey, for the respondents

Keywords: Torts, Professional Negligence, Medical Malpractice, Standard of Care, Civil Procedure, Evidence, Admissibility, Experts, Rules of Civil Procedure, r. 53.03(03), Clements v. Clements, 2012 SCC

facts:

In October 2012, W.J., who was then 43 years old, suffered two strokes. The initial stroke occurred sometime before October 18, 2012 (the “First Stroke”), and was less severe than the second stroke on October 30, 2012 (the “Second Stroke”), which was major and life-altering.

W.J. was admitted to hospital on October 18, 2012, following the First Stroke. During his time at the hospital, he underwent several tests that identified the underlying cause of the First Stroke as being a dissection or tear within the wall of the vertebral artery in his neck. This caused a blood clot to form, which subsequently dislodged and blocked blood flow to his brain.

W.J. was discharged by the respondent, Dr. R.V., on October 23, 2012. It was agreed that the respondent discharged W.J. without reviewing the MR angiogram of his head and neck vessels taken on October 22, 2012 (the “MRA”), and that her failure to do so was a breach of the applicable standard of care.

Damages were agreed upon, the only issue at trial was causation, specifically, whether the negligent discharge of W.J. by the respondent on October 23, 2012, caused the Second Stroke. The parties filed a detailed agreed statement of fact (“ASF”) and there were only two witnesses at trial, W.J.’s expert, Dr. L.C., and the respondent’s expert, Dr. D.G.

The trial judge rejected the evidence of Dr. L.C. and accepted that of Dr. D.G. Finding that the appellants had not proven, on a balance of probabilities, that the Second Stroke would likely have been avoided had W.J. been prescribed Heparin instead of Aspirin at the time of his initial discharge from the hospital. He held that it had not been proven that the respondent’s admitted negligence caused W.J.’s Second Stroke. Accordingly, the plaintiffs failed to prove causation and the action was dismissed.

issues:
  1. Did the trial judge permit “trial by ambush” by admitting Dr. D.G.’s opinion on the likely cause of the Second Stroke when that opinion was not disclosed in his expert reports, contrary to r. 53.03(03)?
  2. Did the appellants establish a prima faciecase on causation?
holding:

Appeal dismissed.

reasoning:
  1. No

There was no trial by ambush.

The appellants took exception to the fact that Dr. D.G. was permitted to testify during his evidence-in-chief that an occlusion of W.J.’s artery was the “likely cause” of the Second Stroke. The statement in the ASF, which came from Dr. D.G.’s opinion, was accepted by the appellant as to the likely cause of the Second Stroke. While Dr. D.G.’s expert reports had identified either blood clots and/or reduced blood flow in the artery as likely causes of the Second Stroke, his reports had not identified one mechanism as being more likely than the other. Thus, the appellants argued, admitting the evidence was contrary to r. 53.03(03) of the Rules of Civil Procedure and amounted to “trial by ambush”.

Even assuming, without deciding, that the trial judge ought not to have permitted Dr. D.G.’s evidence-in-chief to express the opinion that the Second Stroke was caused by the occlusion in W.J.’s left vertebral artery, Dr. D. G. later backed off from that opinion on cross-examination and ultimately reverted to his original stance, testifying that the Second Stroke was likely caused by blood clots and/or by reduced blood flow in his artery. The appellants could hardly have been surprised by this evidence, since they themselves agreed in the ASF that a reduction of blood flow in W.J.’s vertebral artery may have caused the Second Stroke.

The evidence to which the objection was made did not affect the outcome of the case. Based on the trial judge’s review of the evidence as a whole, he was not satisfied that the Second Stroke would likely have been prevented had W.J. been placed on Heparin instead of Aspirin at the time of his initial discharge from hospital. The trial judge accepted Dr. D.G.’s evidence that based on the occlusion he observed in W.J.’s left vertebral artery, he was at high risk for a secondary stroke no matter what treatment he received, since “even if the mechanism of the stroke was embolic, Heparin would have been too little too late, as it would not have been able to open the blockage.”

The appellants had the burden of proving on a balance of probabilities that Heparin would have been more effective than Aspirin in preventing the Second Stroke. The trial judge rejected Dr. L.C.’s evidence and accepted that of Dr. D.G. on that issue, as he was entitled to do. It followed that the appellants did not meet their burden of showing that the respondent’s admitted negligence caused the Second Stroke.

  1. No

The appellants did not establish a prima facie case on the issue of causation.

The core issue in the case was not the absolute effectiveness of either Heparin or Aspirin but, rather, whether there was a difference in their relative effectiveness in preventing W.J.’s Second Stroke. While stroke victims who are treated with Heparin generally have only a 2 percent risk of developing a secondary stroke, the same is true of those treated with Aspirin. Accordingly, the mere fact that patients treated with Heparin had a low risk for developing a secondary stroke did not amount to a prima facie case that W.J.’s Second Stroke would have been prevented had he received Heparin rather than Aspirin commencing on October 23, 2012.


Alami v. Haddad, 2024 ONCA 300

[Roberts J.A. (Motion Judge)]

Counsel:

C. Baker, for the moving party/respondent

A.M., acting in person

Keywords: Family Law, Property, Resulting Trusts, Matrimonial Home, Equalization of Net Family Property, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r.61.06(1), York University v. Markicevic, 2017 ONCA 651, Lavallee v. Isak, 2022 ONCA 290, Heidari v. Naghshbandi, 2020 ONCA 757, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Henderson v. Wright, 2016 ONCA 89

facts:

The respondent sought security for his costs of the appeal brought by the appellant from the order of Bruhn J. dated January 10, 2024. Bruhn J. ordered the equalization of the parties’ net family property and determined that the respondent had a 50 percent ownership interest in the matrimonial home by way of a resulting trust. She ordered the sale of the matrimonial home with the caveat that it was not to interfere with the mortgagee’s sale of the matrimonial home under its notice of sale. She further ordered that the amount of $33,190.07 in unpaid costs orders owed by the appellant to the respondent (the “outstanding costs orders”) and the amount of $23,832.75 in outstanding child support arrears owed by the respondent to the appellant (the “outstanding child support arrears”) be paid from their respective shares of the sale proceeds from the matrimonial home.

issue:

Should the respondent be granted security for costs of the appeal brought by the appellant?

holding:

Motion dismissed.

reasoning:

No.

The criteria under r. 61.06(1)(a) are conjunctive: York University v para. 33. The respondent must therefore satisfy all of the criteria: there is good reason to believe that the appellant’s appeal is frivolous and vexatious and that she has insufficient assets in Ontario to pay the costs of the appeal. Generally, a frivolous appeal is one devoid of merit and with little prospect of success; a vexatious appeal is one that is brought to annoy or harass, is conducted in a vexatious or “less than diligent” manner, or is pursued in bad faith or for an oblique purpose: Lavallee at paras. 19, 25.

The appellant essentially challenged the application judge’s findings of fact about the respondent’s contributions without having identified errors in principle or palpable and overriding errors that would have permitted appellate interference. Given the deference generally owed to the application judge’s findings of fact, the appellant faced a stiff uphill battle on her appeal. The likelihood of the appellant’s appeal being successful was low. However, as her grounds are nevertheless arguable, the Court could not have said the appeal was so devoid of merit that it was frivolous. Even if it was frivolous, the Court was not persuaded that there was good reason to believe that the appeal was vexatious: the appellant was exercising her right to appeal and had to-date conducted her appeal in accordance with the Rules; there was no evidence that she was bringing the appeal to annoy or harass the respondent, although he may feel annoyed or harassed by the fact of it; and there was no evidence that she was pursuing her appeal for a bad faith or oblique purpose.

The Court was also not convinced that there was good reason to believe that the appellant had insufficient assets in Ontario to pay the appeal costs. In accordance with Bruhn J.’s order, the appellant had at present a 50 percent interest in the matrimonial home. While the incurring of ongoing costs may have eroded it, there was no evidence that the equity of the home will not be sufficient to satisfy any appeal costs from the appellant’s share once the home was sold. In the present case, the appellant’s appeal was weak. It effectively invited the Court to redo the application judge’s factual findings at the trial, which is not the Court’s function.

It is well-established that an order for security for costs is discretionary. In addition to the criteria under r. 61.06(1), the Court must also consider whether it is just to order security for costs in the circumstances of this case and the interests of justice: Thrive Capital Management Ltd. at para. 17. The Court referenced Yaiguaje at para. 23, stating that “[c]ourts must be vigilant to ensure an order that is designed to be protective in nature is not used as a litigation tactic to prevent a case from being heard on its merits”.

In weighing all the factors, the strongest point in favour of the respondent’s request for security for costs was that the appellant’s appeal appeared weak. However, the Court was not persuaded that it was frivolous or vexatious. Further, the appellant’s share of the matrimonial home sale proceeds provided protection for the appeal costs, as well as the prior outstanding costs orders. The Court also considered that the respondent was indebted to the appellant for the outstanding child support arrears. Aside from effectively reducing the appellant’s indebtedness to the respondent for the outstanding costs orders to less than $10,000, the Court found it inconsistent for the respondent to rely on the appellant’s failure to pay the outstanding costs orders as a reason to order security for costs when he was in arrears of child support.


SHORT CIVIL DECISIONS

Sternberg v. Cresford Capital Corporation, 2024 ONCA 283

[Benotto J.A. (Motions Judge)]

Counsel:

S. Block and J. Silver, for the plaintiff/defendant to the counterclaim

G. J. Tighe and A. Farley, for the defendant/plaintiff by counterclaim

Keywords: Civil Procedure, Appeals, Leave to Appeal

Margel v. Dawson, 2024 ONCA 275

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

R. Byrnes, as agent for the appellant

D. Bourassa and A. (Q.) Tayyab, for the respondents

Keywords: Contracts, Real Property, Mortgages, Damages, Interest, Cheung v. Moskowitz Capital Mortgage, 2018 ONSC 1322, 2257573 Ontario Inc. v. Furney, 2022 ONCA 505

Vyazemskaya v. Safin, 2024 ONCA 288

[Doherty, Lauwers and George JJ.A.]

Counsel:

D. S., acting in person

S. Cocieru, for the respondent

Keywords: Costs

Public Guardian and Trustee v. Dhuruvasangary, 2024 ONCA 289

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

R. Hettiarachchi, for the appellant

S. Jones, for the respondent

Keywords: Wills and Estates, Guardianships, Property, Powers of Attorney, Removal

Ontario (Attorney General) v. $38,570 in Canadian Currency (In Rem), 2024 ONCA 293

[Roberts J.A. (Motion Judge)]

Counsel:

J. M., acting in person/moving party

J. Coristine, for the responding party

Keywords: Civil Procedure, Appeals, Extension of Time, Civil Remedies Act, 2001, S.O. 2001, c. 28, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Nguyen v. Economical Mutual Insurance Co., 2015 ONCA 828, Codina v. Canadian Broadcasting Corporation, 2020 ONCA 116, Philbert v. Graham, 2022 ONCA 122, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.)

Allen v. Kumar, 2024 ONCA 293

[Roberts J.A. (Motion Judge)]

Counsel:

B.A.K., acting in person

A. Ferguson, for the responding parties

Keywords: Civil Procedure, Appeals, Security for Costs


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with over two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, partnership, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles complex estates and matrimonial litigation involving disputes over property and businesses, as well as professional discipline and professional negligence matters for various types of professionals. In addition, John represents amateur sports organizations in contentious matters, and also advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.