Latest Case Summaries – March 2014

Chapin v. Bennett, 2014 ONSC 1179 (SCJ)

In this recent decision, Mr. Justice McCartney considered whether the amendment of a Statement of Claim in an FLA action to include damages for PTSD (known generally as nervous shock). The defendants opposed the amendment, arguing that the limitation period had expired since the claim for PTSD was a new cause of action in personal injury, rather than an FLA claim.

Justice McCarthy agreed that the claim for PTSD was a personal injury action rather than an FLA claim. However, he held that this fact did not create a new cause of action. Rather, the amendment simply constituted an additional head of damages. Justice McCarthy allowed the proposed amendments. Read more on CanLII.

Boyd et al. v. Edington et al., 2014 ONSC 1130 (SCJ)

This medical malpractice action arose from the alleged failure of a defendant physician to recognize the signs of stroke caused by a blood clot and to administer heparin during the window of opportunity. The decision is noteworthy because Justice Sproat applied the “robust common sense” approach to causation. On this approach, he concluded that “but for” the delay in the administration of heparin, the plaintiff wouldn’t have suffered a debilitating stroke. Justice Sproat specifically noted that he had not relied on evidence that VAD stroke patients generally have favourable outcomes. This was because he could not reason that because most patients have favourable outcomes, there was a greater likelihood that the plaintiff’s outcome was caused by the fault of the defendant physician. Read more on CanLII.

Hennes v. City of Brampton, 2014 ONSC 1116 (SCJ)

Hennes is one of the first Ontario summary judgment decisions to apply Hyrniak. The City of Brampton brought the motion to dismiss the plaintiffs’ claim for their failure to service notice of their claim within the 10 day notice period. Notice was not served until August 2010, roughly 18 months after the date of the injury. The plaintiffs argued that it was not until July 2010, when the injured plaintiff learned he would require a future total knee replacement, that he became aware that he had suffered a serious and permanent injury. Justice Donohue held that the motion concerned questions of law and not matters of credibility or disputed facts. Accordingly, it was an appropriate matter for summary judgment and did not require trial. Justice Donohue found that the injured plaintiff should have known by June 30, 2009, when he was first offered arthroscopic surgery, that there was a claim for damages. As such, the plaintiffs had not established a reasonable excuse for their failure to give notice. Justice Donohue also found that the plaintiffs had not met their burden of establishing that the City had not been prejudiced by the late notice. She granted summary judgment. Read more on CanLII.

Cases summarized by Rikin Morzaria, Partner at McLeish Orlando and Board Member of the Ontario Trial Lawyers Association.

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