COURT OF APPEAL FOR ONTARIO

CITATION: Lindhorst v. Sears, 2013 ONCA 294

DATE: 20130503

DOCKET: C51537

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Alvin Lindhorst

Applicant (Appellant)

and

David Sears

Respondent (Respondent)

Alvin Lindhorst, acting in person

John D. Bonn, for the respondent

Heard: April 25, 2013

On appeal from the order of Justice Cheryl Robertson of
    the Superior Court of Justice, dated December 3, 2009.

ENDORSEMENT

[1]

The appellant, Alvin Lindhorst, appeals the December 3, 2009 order of
    the trial judge, dismissing his claim for,
inter alia
, a declaration
    that he has a right of way or easement permitting him to use the well located
    on the respondents neighbouring property, and allowing the respondents
    counter-claim for a declaration that the well-sharing agreement registered on
    title to the respondents property expired on March 20, 2010.

[2]

In 1990, the respondent entered into an agreement to acquire his
    property. The agreement specifically noted that the well was shared with the
    then owners of the appellants property and that they had equal rights to the
    well. Prior to closing, the respondent entered into the well-sharing agreement
    with the then owners of the appellants property. The well-sharing agreement provided
    for shared use of the well until March 20, 2010. It was deposited on title to
    the respondents property, on March 9, 1990, when the respondent completed the
    purchase of his property.

[3]

The appellant purchased his property at a tax sale some 16 years later.
    He understood that it used the well in question. The well-sharing agreement was
    not registered on title to his property. He did not search title to the
    respondents property.

[4]

The appellant argues that the trial judge erred in finding that:

(1) the respondent had not repudiated the well-sharing agreement;

(2) the appellants right to use the well was governed by the
    well-sharing agreement despite the fact that it was not registered on title to
    the appellants property and the agreement of purchase and sale entered into by
    the respondent before the well-sharing agreement was executed specifically
    noted that the well was shared with the prior owners of the appellants
    property; and

(3)
Depew v. Wilkes
(2002), 60 O.R. (3d) 499, a
    decision of this court, did not apply in the circumstances, and the appellant
    was not entitled to a prescriptive right or equitable easement entitling him to
    use the well.

[5]

We are not satisfied that the application judge made a palpable and
    over-riding error in concluding that the respondent had not repudiated the
    well-sharing agreement. The trial judge noted that the appellant had been
    convicted of an offence under s. 2 (1) (a)(i) of the
Trespass to Property
    Act
, R.S.O. 1990, c. T.21 and that he was appealing his conviction.  She accepted
    the evidence of the respondent that he never denied the appellant access to
    the well, just to him wandering around [his] property. She was entitled to
    accept the respondents evidence over that of the appellant.

[6]

The well is located on the respondents property. The fact that the
    well-sharing agreement  a restriction on title to the respondents property
    was not also registered on title to the appellants property does not render it
    ineffective as against the appellant.

[7]

We agree with the trial judge that the shared rights to the well acknowledged
    in the agreement of purchase and sale signed by the respondent were qualified
    by the subsequently executed well-sharing agreement, which gave express time
    limited permission for the owner of the appellants property to use the well.

[8]

Finally, we agree with the trial judge that because the appellants
    right to access the well was governed by the well-sharing agreement,
Depew
is not applicable, and the appellant has no prescriptive right or easement in
    relation to the well.

[9]

This appeal is accordingly dismissed. The respondent is entitled to his
    costs of this appeal on a partial indemnity scale, fixed at $ 5000, inclusive
    of disbursements and applicable taxes.

John Laskin J.A.

E.A. Cronk J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Malhotra v. State Farm Fire and Casualty
    Company,

2013 ONCA 326

DATE: 20130516

DOCKET: C54793
/C56509

Simmons, Hoy and Strathy JJ.A.

BETWEEN

Veena Malhotra

Appellant

and

State Farm Fire and Casualty Company

Respondent

Veena Malhotra, acting in person

Terry J. Tustin, for the respondent

Heard: May 13, 2013

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice dated November 29, 2011 and on appeal from the
    judgment of Justice Theresa Maddalena of the Superior Court of Justice dated
    August 6, 2009.

APPEAL BOOK ENDORSEMENT

[1]

The two orders under appeal relate to the appointment of a single umpire
    under s. 128 of the
Insurance Act
in relation to five properties owned
    by the appellant.

[2]

We see no basis on which to interfere with either order.  The power to
    appoint an umpire, or umpires, under s. 128 is discretionary. Nothing in s. 128
    prohibits the court from appointing a single umpire to deal with multiple
    properties.

[3]

The appellants did not file affidavit evidence on either motion to
    challenge the umpires proposed by State Farm.  On appeal, the appellant has not
    identified any form of error on the part of either motion judge that would
    justify interfering with their exercise of discretion.

[4]

The appeals are therefore dismissed.

[5]

The costs of both appeals are to the respondent in the total amount of
    $5,000.00 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Manary v. Strban, 2013 ONCA 319

DATE: 20130514

DOCKET: C53479

Doherty, Juriansz and Hoy JJ.A.

BETWEEN

Steve Manary and Lauren Manary by her Litigation
    Guardian, Steve Manary

Plaintiffs (Respondents)

and

Dr. Martin Strban,
Dr. Stephen D. Halmo
,
    Dr. N. Hanna, Dr. L. Singer, Dr. A. Nagpal, Grand River Hospital, Dr. John Doe
    and Nurse Jane Doe

Defendant (
Appellant
)

Sarit E. Batner and Eli D. Mogil, for the appellant

J. Greg Murdoch, Steven K. Kenney and C. Davis, for the
    respondents

Heard:  December 10, 2012

On appeal from the judgment of Justice J.C. Kent of the
    Superior Court of Justice, dated February 23, 2011.

Doherty J.A. (Dissenting):

I

overview

[1]

Christine Manary, age 28, was 36 weeks pregnant when she went to Grand
    River Hospital in Kitchener, Ontario on the evening of Thursday, August 7, 2003.
    Ms. Manary was experiencing severe, sudden onset chest pain and shortness of
    breath.  The doctors suspected either a pulmonary embolism, a blood clot in the
    lung (PE), or an aortic dissection, a tear in the wall of the aorta.  Both
    are serious, life-threatening conditions.   The doctors ordered various tests
    and admitted Ms. Manary to the Hospital.

[2]

On Friday, August 15, the day Ms. Manary was to be discharged, she suddenly
    collapsed and died from a ruptured ascending aortic aneurism.  Fortunately, Ms.
    Manarys baby girl, Lauren, was successfully delivered by caesarian section.

[3]

Mr. Manary, on his own behalf and as his daughters litigation guardian,
    sued various doctors and nurses involved in Ms. Manarys treatment at the
    hospital.  The action went to trial against Dr. Halmo, her obstetrician, Dr.
    Strban, one of the respirologists involved in Ms. Manarys care, and Dr. Hanna,
    the radiologist who performed a CT angiogram on August 10.

[4]

Three central factual questions emerged at trial:

·

Was it medically appropriate, as of about August 10, to treat Ms.
    Manarys heart-related problems as not requiring the immediate attention of a
    cardiologist and/or transfer to a tertiary care centre?

·

Was Dr. Halmo, the doctor designated as the Most Responsible Physician
    (MRP) according to hospital protocol, entitled to rely on the respirologists
    opinion as to the appropriate treatment plan for Ms. Manarys heart-related
    problems, or was he obliged to make an independent assessment and formulate his
    own plan?

·

Would it have made any difference to the ultimate outcome if on
    or about August 10, Dr. Halmo had determined that Ms. Manarys heart-related problems
    required an immediate cardiac consultation and an immediate transfer to a
    tertiary care centre where the appropriate surgical facilities were available?

[5]

The trial judge dismissed the claim against Dr. Strban, the
    respirologist, and Dr. Hanna, the radiologist, concluding that they had met the
    required standard of care.  The trial judge, however, found Dr. Halmo, the obstetrician
    and MRP, liable.  The trial judge held that Dr. Halmo fell below the required
    standard of care by accepting Dr. Strbans treatment plan without engaging in
    an independent assessment of Ms. Manarys needs.   The trial judge held that
    had Dr. Halmo made his own assessment:

[H]e would have been driven to the conclusion that the safest
    course was an immediate transfer to a tertiary care centre where an evaluation
    of Christines enlarged aorta and immediate management of her condition would
    have been available to ensure her survival.

[6]

The parties had agreed on the quantum of damages and the trial judge
    entered judgment for the plaintiff in that amount.  He also assessed costs in
    favour of the plaintiff at $400,000.

[7]

Dr. Halmo appeals from the finding of liability and seeks leave to
    appeal the costs order.
[1]

[8]

On the appeal, counsel for Dr. Halmo launched a far-ranging attack on
    the reasons of the trial judge.  Her submissions focused mainly on two complaints.
    First, counsel argued that the finding of liability against Dr. Halmo cannot
    stand beside the finding that Dr. Strban met the requisite standard of care.
    The trial judge found that Dr. Halmo was negligent for failing to treat Ms.
    Manarys heart-related problems as an emergency requiring an immediate cardiac consultation
    and transfer to a tertiary care centre.  In contrast, the trial judge found
    that Dr. Strban had met the standard of care when he advised Dr. Halmo that Ms.
    Manarys heart-related problems were not an emergency and did not require an
    immediate cardiac consultation or transfer to a tertiary centre.  In effect,
    counsel for the appellant argues that the trial judge found Dr. Halmo negligent
    for relying on the reasonable advice of a qualified consulting respirologist.  Counsel
    contends that as the finding with respect to Dr. Strban is not challenged on
    appeal, the irreconcilable finding of liability against Dr. Halmo cannot stand.

[9]

Second, counsel submits that the trial judge failed to consider, much
    less make, the findings of fact necessary to draw a causal link between the
    negligence the trial judge attributed to Dr. Halmo and Ms. Manarys death.    Counsel
    contends that the plaintiff was obliged to show that but for Dr. Halmos
    negligence, Ms. Manary would have been transferred to a tertiary care centre
    and would have undergone surgery  the only treatment which could have
    prevented her death  before the morning of August 15.  Counsel submits that
    those findings could not reasonably be made on this record.

[10]

I
    would allow the appeal.  I think the appeal turns on the first of the two
    submissions outlined above.  The trial judge found that Dr. Strban met the
    applicable standard of care when he concluded that Ms. Manarys heart-related
    problems were not an emergency and could be treated by cardiac consultation a
    week or two after Ms. Manarys discharge from the hospital.  At the same time, the
    trial judge found Dr. Halmo negligent for accepting what the trial judge found
    was the reasonable course of treatment proposed by Dr. Strban.  These findings
    cannot be reconciled.  Taken together they demonstrate the application of a
    legally incorrect standard of care to Dr. Halmos conduct (the safest course
    standard), a palpable and overriding error in the trial judges fact-finding,
    or an unreasonable finding of fact.  The appeal must succeed.

II

the evidence

(a)

Ms. Manarys care in
    the hospital

[11]

From
    the time Ms. Manary arrived at the hospital on Thursday, August 7, 2013, the
    doctors suspected that Ms. Manary had a serious chest-related problem.  The
    physicians regarded PE as the most likely cause of Ms. Manarys chest pains and
    shortness of breath.  PE is common in pregnant women.

[12]

The
    treating physicians, however, also appreciated the risk of an aortic dissection.
    An aortic dissection almost invariably causes death and must be treated as an
    emergency.  Various tests administered between August 7

and August 10
    were intended to assist the doctors in choosing between the two possible
    diagnoses. Clinical observations of Ms. Manary also played an important role in
    formulating the doctors diagnosis.

[13]

Dr.
    Nagpal, a respirologist who saw Ms. Manary when she arrived at the hospital on
    August 7, considered both the possibility of PE and an aortic dissection.  He thought
    PE was the likely diagnosis and started Ms. Manary on a course of Heparin, a
    blood thinner commonly used in the treatment of PE.  Dr. Nagpal also detected a
    heart murmur and ordered an echocardiogram.

[14]

The
    protocol at Grand River Hospital required that all pregnant women admitted to
    the hospital be admitted to the obstetric service even if the admission did not
    relate directly to any pregnancy-related problem. Hospital protocol also
    dictated that Ms. Manarys obstetrician, Dr. Stephen Halmo, would be designated
    as the MRP.  The MRP is the physician primarily responsible for providing a
    plan of care for a patient and coordinating that plan among the various doctors
    involved in her care.  Dr. Halmo was the MRP throughout Ms. Manarys stay at
    Grand River Hospital.

[15]

Dr.
    Halmo first saw Ms. Manary on Friday August 8 during his rounds.  He was aware
    of the circumstances surrounding her admission and the tests that had been
    administered and ordered.  Dr. Halmo was aware that PE was the suspected cause
    of Ms. Manarys problems.  Dr. Halmo assessed Ms. Manary and the
fetus.  He saw no obstetrical problems.

[16]

Dr. Halmo had relatively little experience with PE.  It was his
    practice

to rely on the chest team headed by
    the respirologists to investigate and manage PE.  The other obstetricians at
    the hospital followed the same practice.  There were no cardiologists on
    service at Grand River Hospital, but a cardiac consultation could be obtained
    from St. Marys, another Kitchener hospital.

[17]

Dr.
    Strban became involved in Ms. Manarys care on Friday, August 8. The
    echocardiogram ordered the previous day showed some left ventricular
    enlargement, mild thickening of the aortic valve, and a dilated aortic root (a
    bulge) in the ascending aorta.  There was no indication of an aortic
    dissection.

[18]

The
    echocardiogram was read by Dr. Singer, a cardiologist.  Dr. Singer was
    originally a defendant in this action and was examined for discovery.  The plaintiffs
    did not proceed to trial against Dr. Singer.

[19]

Dr.
    Strban, like Dr. Nagpal, believed that PE was the probable cause of Ms.
    Manarys problems.  He remained concerned, however, about the possibility of an
    aortic dissection because of Ms. Manarys ongoing pain.  Dr. Strban called a cardiologist
    at St. Marys to discuss the possibility of performing a transesophageal
    echocardiogram (TEE) on Ms. Manary.  A TEE is one of three tests that can detect
    an aortic dissection.  The cardiologist at St. Marys advised Dr. Strban that a
    TEE was not available.  The same cardiologist told Dr. Strban that it was unlikely
    that Ms. Manary would have remained stable for 24 hours while receiving Heparin
    if in fact she had a dissected aorta.  This information gave Dr. Strban some
    comfort that his provisional diagnosis of PE was correct.

[20]

Dr.
    Strban continued to treat Ms. Manary for PE. He continued the Heparin, and he ordered
    a Doppler ultrasound on Ms. Manarys legs.  The Doppler can provide evidence of
    PE.  The Doppler was performed on August 9 and it did not show any signs of PE.

[21]

Dr.
    Strban was away for the weekend and his colleague, Dr. Jackson, a respirologist,
    was on call.  Dr. Jackson saw Ms. Manary on Saturday, August 9 and Sunday,
    August 10.   Dr. Jackson was not sued.

[22]

Dr.
    Halmo spoke with Dr. Jackson on August 9 to be sure that she knew she had a
    patient on the obstetrical unit.  Dr. Halmo was also aware that the
    echocardiogram had shown certain abnormalities and he wanted to be clear with
    Dr. Jackson that the respirologists were pursuing those issues.  Dr. Halmo
    regarded Dr. Jackson as a very competent and highly respected physician within
    the hospital.  He trusted her to follow up on any chest-related problem.

[23]

Dr.
    Jacksons clinical note written after she had examined Ms. Manary on August 9
    included the following observations and comments:

·

Admitted Thursday evening with suspected pulmonary embolus;

·

Feeling better today; - chest pain much improved;

·

Bedside exam and echocardiogram suggests significant aortic valve
    disease with regurgitation likely aggravated by increased cardiac output in
    pregnancy;

·

Jugular venous pressure is normal;

·

No effusion;

·

Dissection seems unlikely;

·

Should have cardiology review;

·

Subacute bacterial endocarditis prophylaxis;

·

Postpartum follow-up and monitoring;

·

Plan, continue Heparin, Doppler and Tylenol 2 if analgesics
    required.

[24]

As
    of August 9 Dr. Jackson considered PE the likely diagnosis.  However, she
    remained concerned about the possibility of aortic dissection.  She explained
    that aortic valve disease and a dilated aortic root are risk factors for aortic
    dissection but they can exist without a dissection.  Dr. Jackson believed that
    Ms. Manary should have a cardiac consultation before her delivery.  Dr. Jackson
    testified:

[W]e had evidence of this significant aortic valve disease and
    we also knew that she had a dilated aortic root and that she was within a
    number of weeks of her due date and I mean,
Im not a
    cardiologist so I didnt have the expertise to really evaluate how that cardiac
    problem would influence her delivery and the way that that should be managed
    but I certainly felt that thats something that should be undertaken before she
    would be allowed to deliver
.  [Emphasis added.]

[25]

Dr.
    Jackson saw Ms. Manary on Sunday, August 10.  Ms. Manary had been in
    considerable pain throughout the evening and morning of August 9-10.  Dr.
    Jackson remained concerned about the possibility of aortic dissection.  She
    stopped the Heparin and ordered a CT angiogram, the best test available for
    identifying an aortic dissection.

[26]

Dr.
    Jackson examined the CT angiogram with Dr. Hanna on August 10.  It showed no evidence
    of aortic dissection.  It did show, as had the echocardiogram, some enlargement
    of the left side of the heart and some apparent chronic valve disease.  The CT
    angiogram also showed a large aneurism in the ascending aorta.  An aneurism is a
    bulge in the aorta.  It is not the same as a dissection of the aorta, although
    it can overlay a dissection.  The CT angiogram showed no evidence of PE.

[27]

Dr.
    Jackson was satisfied that the results of the CT angiogram excluded aortic
    dissection as a potential problem.  She decided to continue treating Ms. Manary
    for PE and ordered the Heparin recommenced.

[28]

Dr.
    Jackson explained her analysis in these terms:

[P]ulmonary embolus can be a very difficult diagnosis to prove
    or exclude and CT angiogram is not 100 per cent sensitive for pulmonary emboli
    and this woman had also been on treatment for several days so although disquieting,
    the fact that the CT angiogram was negative for obvious pulmonary embolism it
    unfortunately doesnt exclude it as a possibility and we still needed some
    explanation for this womans, you know, her ongoing symptoms.  On balance, it
    seemed to be the diagnosis that fit the picture the best, made the most sense.

[29]

Although
    Dr. Jackson believed that PE was the immediate medical concern, she did
    recognize that Ms. Manary had two heart-related problems: the aneurism in the
    ascending aorta and the chronic valve disease.  Dr. Jackson believed that both
    problems would have to be assessed by a cardiologist before Ms. Manary delivered.

[30]

Dr.
    Strban returned to the hospital on Monday, August 11.  When he visited Ms.
    Manary she was feeling much better than she had been when he examined her on
    Friday, August 8.  Her chest pain was significantly reduced and she had less
    shortness of breath.  Dr. Strban attributed the improvement to the Heparin.

[31]

Dr.
    Strban also reviewed Dr. Jacksons notes and the CT angiogram.  He agreed with
    Dr. Jacksons assessment.  In Dr. Strbans view, the CT angiogram was the best
    test available for finding an aortic dissection.  The absence of any evidence
    of an aortic dissection in the CT angiogram tended to confirm his opinion that PE
    was the correct diagnosis.

[32]

Although
    the various tests administered between August 7 and 10 had not offered any
    positive proof of PE, Ms. Manarys clinical presentation and the absence of any
    indication of an aortic dissection in the CT angiogram led Dr. Strban to
    believe that PE remained the most likely cause of Ms. Manarys problems.
    Consequently, he continued the Heparin.

[33]

Dr.
Halmo, who had been away on Sunday, August 10, also saw Ms.
    Manary on August 11.  He reviewed Dr. Jacksons notes from the weekend and was
    aware of the proposed treatment.  He also satisfied himself that there were no
    problems from an obstetrical perspective.

[34]

As of August 11, Dr. Strban had formulated a two-pronged approach for
    Ms. Manarys treatment.  First, based on his belief that PE was the likely
    cause of Ms. Manarys problems, Dr. Strban continued the administration of
    Heparin.  He planned to discharge Ms. Manary when she had learned to inject
    herself with Heparin.  Second, Dr. Strban undertook to arrange a cardiac
    follow-up for Ms. Manary after her discharge.  He anticipated that both the
    aneurism and the apparent chronic valve related problems would be addressed by
    the cardiologist.   Dr. Strban did not regard either heart-related problem as
    an emergency requiring an immediate consultation.  He did think, however, that
    both problems had to be addressed by a cardiologist before Ms. Manarys
    delivery date in about four weeks. Consequently he undertook to arrange a cardiac
    consultation within a week or two.

[35]

Dr.
    Strban testified that in formulating his treatment plan, he was aware that
    there was always a risk that an aneurism might rupture.  He did not, however,
    regard that risk as sufficiently significant to warrant an immediate consultation
    with a cardiologist.

[36]

Dr.
    Strban also did not consider performing any further test to establish or
    exclude PE.  The only other possible test was a pulmonary angiogram.  In light
    of Ms. Manarys improvement while receiving Heparin, Dr. Strban did not think
    that an intrusive test, such as a pulmonary angiogram, was warranted.  Dr.
    Strban also did not consider transferring Ms. Manary to a tertiary care centre on
    or before August 11.  In his opinion, a tertiary care centre would not have accepted
    Ms. Manary.

[37]

Dr.
    Strban spoke to Dr. Halmo on August 12 or 13.  He told Dr. Halmo that PE
    remained his diagnosis and that Ms. Manary should continue to take Heparin.
    Dr. Strban advised Dr. Halmo that Ms. Manary would be ready for discharge later
    that week and that he would arrange an out-patient cardiology consultation within
    the next week or so.  Dr. Halmo accepted Dr. Strbans treatment plan.

[38]

Ms.
    Manary was scheduled to be released on Friday, August 15.  That morning she had
    no pain and was feeling good.  At about 11:55 a.m. she suddenly collapsed.
    Resuscitation efforts failed.  Ms. Manarys daughter was delivered by caesarean
    section.

[39]

The
    post-mortem revealed that Ms. Manary died as an immediate consequence of the
    rupture of the aneurism in her ascending aorta.  The pathologist discovered a
    small tear or dissection of the inner wall of the aorta, about one centimetre
    distal (further from the heart) to the aneurism.  That dissection caused blood
    to travel between the inner and outer walls of the aorta toward the heart
    ultimately causing the aneurism and the rupture of the aneurism.

[40]

The
    pathologist could not indicate when the dissection occurred.  He could say that
    there was some evidence of healing around the dissection indicating that it
    must have occurred at least two or three days prior to death.

[41]

Dr.
    Strban testified that he and the other respirologists were responsible for Ms.
    Manarys chest issues, meaning her suspected PE and the heart-related
    problems.  Dr. Strban fully expected Dr. Halmo to rely on his opinion as to the
    appropriate follow up for Ms. Manarys heart-related problems.

[42]

Dr.
    Halmo testified that at Grand River Hospital, pregnant women who are admitted
    with a suspected PE come under the care of respirologists.  Dr. Halmo relied on
    the respirologists to investigate Ms. Manarys medical problems, specifically
    her suspected PE.  He had no concerns that the respirologists were not taking
    appropriate steps to investigate and treat Ms. Manarys problems.  Dr. Halmo knew
    that those problems had to be addressed by a cardiologist before Ms. Manary
    delivered and he knew that Dr. Strban was making arrangements to have a cardiac
    consultation within the next week or two.  Dr. Halmo accepted Dr. Strbans
    assessment that a cardiac consultation within a week or two of discharge was
    appropriate.  Dr. Halmo was also satisfied that there were no obstetrical
    problems preventing Ms. Manarys discharge on August 15.

(b)

The expert evidence

[43]

Several
    experts testified at trial.  They joined issue primarily on whether Ms.
    Manarys heart-related problems called for an immediate cardiac consultation
    and transfer to a tertiary care centre no later than the morning of August 11.

[44]

The
    plaintiff did not call an expert respirologist at trial.  The defence expert respirologist
    testified that the respirologists had properly identified PE as the likely
    cause of the Ms. Manarys problems and had correctly identified her heart-related
    problems as warranting a cardiac consultation on a non-emergency basis.  The
    expert also testified that in most hospitals obstetricians rely on
    respirologists or internists to diagnose and treat PE.  The expert indicated
    that she would have preferred a cardiac consultation within a week of
    discharge, but that Dr. Strbans plan, calling for a consultation within a week
    or two, was a reasonable plan and met the applicable standard of care.

[45]

Neither
    party called an expert cardiologist.  The plaintiff successfully opposed the
    defence attempt to call Dr. Singer, the cardiologist who had read the August 8
    echocardiogram. No cardiologist testified at the trial.

[46]

The
    plaintiff called Dr. Davies, an obstetrician, to comment on the standard of
    care provided by Dr. Halmo.  Dr. Davies agreed that it was appropriate to treat
    Ms. Manary for PE when she arrived at the hospital on August 7.  He testified,
    however, that Dr. Halmo should have realized that the various tests, especially
    the CT angiogram on August 10, virtually excluded PE and that the heart-related
    problems  especially the aneurism  revealed by those tests required immediate
    and thorough investigation by the appropriate specialists.  As I understand the
    thrust of Dr. Davies evidence, it was his opinion that by no later than the
    morning of Monday, August 11 Dr. Halmo, as Ms. Manarys obstetrician and the
    MRP, should have realized that it was necessary to obtain an immediate cardiac
    consultation and to immediately transfer Ms. Manary to a tertiary care centre.

[47]

Dr.
    Davies did not agree that Dr. Halmo could rely on the treatment plan proposed
    by Drs. Jackson and Strban.  Dr. Davies believed that Dr. Halmo had sufficient
    experience with PE to second guess the respirologists.  In cross-examination of
    Dr. Davies the following exchange occurred:

Q       You
    say its a failure to meet the standard of care for Dr. Halmo with his  in his
    circumstances and the circumstances of this case not to second guess the
    respirologist with respect to the issues in this case; correct?

A       Yes.

Q       And
    would you agree it depends on the practice of the physician and the hospital in
    which hes practicing?

A       No.

Q       No, you dont agree with that?

A       No, I
    think based on his education and experience he should have the ability whether hes
    treating the patient completely for the pulmonary embolus or in conjunction
    with the cardiologist  or sorry, the chest physicians that he maintains the
    same responsibility for the patient.

[48]

Dr.
    Davies was not qualified to express an opinion on the care provided by Dr.
    Strban and the other respirologists.  Nonetheless, he testified that all of
    the doctors missed the urgency of the problem.  Dr. Davies opined that the
    treatment plan proposed by the respirologists was incorrect because that plan
    did not appreciate the urgency presented by the aneurism.

[49]

In
    Dr. Davies opinion, Dr. Halmo was negligent for not realizing that the
    respirologists proposed plan was incorrect given the emergency presented by
    the aneurism and the virtual exclusion of PE as a cause of Ms. Manarys
    symptoms.  According to Dr. Davies, Dr. Halmo should have rejected the plan
    proposed by the consulting respirologists and implemented a plan that would see
    Ms. Manary obtain an immediate cardiac consultation and an immediate transfer
    to a tertiary care centre.
[2]

[50]

Dr.
    Cowal, an obstetrician, testified as a defence expert.  In her opinion, Dr.
    Halmo met the standard of care as both the obstetrician and MPR in relying on
    the respirologists to investigate and treat Ms. Manarys heart-related problems.
    It was unreasonable to expect that Dr. Halmo would have the same expertise in
    diagnosing and treating PE as would the respirologists.  It was, therefore,
    appropriate for him to not second guess their diagnosis and proposed plan of
    treatment.  In Dr. Cowals assessment Dr. Halmo fully met his duty to Ms.
    Manary by ensuring that the respirologists were making what they regarded as
    the appropriate treatment plan for Ms. Manarys various chest-related medical
    issues.

[51]

The
    plaintiff also called Dr. Rubin, a vascular surgeon.  He testified that Dr. Strban
    and Dr. Halmo fell below the standard of practice by failing to conduct the
    test necessary to confirm the provisional diagnosis of PE, and by failing to
    conduct the test necessary to definitely rule out an aortic dissection.  Dr.
    Rubin testified that had the proposed tests been conducted, a diagnosis of
    acute aortic dissection would have been made leading to the immediate transfer
    to a cardiac surgical unit in time to perform the necessary surgery before the
    aneurism ruptured.

[52]

The defence called a cardiovascular surgeon, Dr.
    Christakis.
In his opinion, the aneurism detected in Ms. Manarys
    ascending aorta on August 10 did not give rise to an emergency.  The risk of
    rupture was relatively low.  The aneurism could be properly treated by surgery
    before or at the time of delivery.  In his opinion, a cardiac consultation in a
    week or two after Ms. Manarys discharge would have given sufficient time to
    perform the necessary surgery.

[53]

Dr.
    Christakis opined that Ms. Manary received excellent care and that the
    appropriate tests had been done and a reasonable treatment plan formulated.  In
    his opinion, the ruptured aneurism and Ms. Manarys death were an exceedingly
    rare event that could not have been prevented.

III

THE REASONS FOR JUDGMENT

[54]

The
    trial judge recognized that the outcome of the action depended largely on
    whether the decision that Ms. Manarys heart-related problems did not require
    immediate attention from a cardiologist and transfer to a tertiary care centre
    fell below the applicable standard of care.  After a general overview of the
    evidence and a review of the applicable legal principles, the trial judge
    turned to the application of those principles to the facts as he found they related
    to each of the defendant doctors.  He found that Dr. Hanna was not negligent in
    failing to observe certain subtle findings on the CT scan.  The trial judge
    then turned to Dr. Strban.

While it would have been preferable for Dr. Strban to treat
    Christines enlarged aorta as an emergency and have her seen quickly by a
    cardiologist who would be more familiar with an enlarged aortic aneurism and
    the risk of rupturing, I am unable to conclude that his failure to do so was a
    failure to meet the required standard of practice.

Similarly, to
require Dr. Strban to treat
    Christines enlarged aorta as an emergency, given the information provided to
    him and what he observed, would be to impose an elevated standard that goes
    beyond what is reasonably required
.  [Emphasis added.]

[55]

There
    is no appeal from the trial judges finding that Dr. Strbans conduct met the
    applicable standard of care.  This is not surprising in that the plaintiff did
    not call an expert respirologist and the defence called an expert respirologist
    who defended Dr. Strbans treatment of Ms. Manary as reasonable and appropriate.

[56]

After
    finding that Dr. Strban was not negligent, the trial judge turned to Dr. Halmo.
    He summarized the competing opinions of the experts.  As outlined above, they
    disagreed on whether Dr. Halmo was entitled to rely on the opinion of the
    respirologists.  Dr. Davies insisted that because Dr. Halmo was the MRP he was
    required to make his own assessment of the appropriate treatment for Ms.
    Manarys heart-related problems.  Dr. Cowal, the defence expert, testified that
    the respirologists had greater expertise in respect of the medical problems
    confronting Ms. Manary and that it was appropriate for Dr. Halmo to rely on
    their assessment of the appropriate course of treatment.

[57]

In
    preferring Dr. Davies evidence the trial judge said:

With great respect to the view of Dr. Cowal, she has set the
    standard of care too low.  Dr. Davies is not discussing an ideal or an
    impossibly high standard.
It is a safer standard
.
    It is not a standard that should be avoided by the delegation of responsibility
    in a particular mode of practice.  The defence position on the division of
    responsibilities is counter-intuitive and defeats the purpose of designating an
    MRP.  If this court accepts the defence position that Dr. Halmo is to trust the
    respirology team absolutely and to chart on obstetric issues only, this court
    would be accepting that Dr. Halmo serves no function beyond that of an
    obstetrician.  Respectfully, this court does not accept that.
The standard of care of an MRP is not limited to delegating
    tasks and responsibilities to experts.  An MRP is not absolved of
    responsibility with respect to a medical condition simply because that medical
    problem is beyond the expertise of the MRP
. [Emphasis added.]

[58]

The
    trial judge then found that Dr. Halmos decision to accept the treatment plan put
    forward by Dr. Strban fell below the applicable standard of care.

He [Dr. Halmo] did not exercise critical judgment in
    considering the path being taken by the respirologists when there was an
    alternative diagnosis that could and should have been pursued.
Given the mode of practice at Grand River Hospital at the
    relevant time the MRP was required to participate in a fuller manner by
    exercising independent critical judgment and ensuring full and complete
    communication among all treating physicians
.  While the honest and
    intelligent exercise of judgment has long been recognized as satisfying ones
    professional obligation, a failure to exercise objective and critical judgment
    can constitute negligence.  Perhaps, Dr. Halmo, given the mode of practice, was
    lulled into a belief that any responsibility beyond obstetrical care was not
    his.  That cannot be the case. The mode of practice is only workable and safe
    for the patient if the MRP is exercising his responsibility to the fullest.
    The standard of care required of an MRP cannot be met by an implied and
    undocumented understanding or by merely delegating responsibility. [Emphasis
    added.]

[59]

The
    trial judge further elucidated the nature of Dr. Halmos negligence in this
    passage:

Had Dr. Halmo, who bore ultimate responsibility for the
    patient, not merely accepted the opinion and paths of treatment taken by the
    respirologists,
he would have been driven to the
    conclusion that the safest course was an immediate transfer to a tertiary care
    centre where an evaluation of Christines [Ms. Manarys] enlarged aorta and
    immediate management of her condition would have been available to ensure her
    survival
.  [Emphasis added.]

IV

Are the trial judges findings Demonstrably incompatible?

[60]

There
    is, of course, nothing wrong with a finding that one treating physician met the
    requisite standard of care while another did not.  The assessment of liability is
    specific to each defendant.  Nor are logic and consistency the standards
    against which trial findings are measured on appeal.  An illogical result is
    not necessarily a reversible result.  Inconsistent findings do, however, warrant
    appellate intervention where they reflect legal error, or are so demonstrably
    incompatible as to compel the conclusion that one or both findings are
    unreasonable or the product of palpable and overriding factual error.

[61]

In
    finding Dr. Halmo negligent the trial judge accepted, as he was entitled to do,
    Dr. Davies evidence.  In particular the trial judge accepted Dr. Davies
    evidence that as the MRP, Dr. Halmo was required to make his own assessment of
    the appropriate treatment plan for Ms. Manarys heart-related problems rather
    than simply accept the advice of Dr. Strban.  Acknowledging that the trial
    judge was entitled to prefer Dr. Davies evidence as to the scope of the MRPs
    role, does not, however, provide an answer to the complaint that the finding
    that Dr. Strban was not negligent is irreconcilable with the finding that Dr.
    Halmo was negligent.  Even if Dr. Halmo was required to make his own
    independent assessment as to the proper treatment of Ms. Manarys heart-related
    problems, the question remains whether his acceptance of the plan proposed by
    Dr. Strban fell below the required standard of care.

[62]

Dr.
    Davies testimony that Dr. Halmo was negligent in simply accepting Dr. Strbans
    treatment plan rested on Dr. Davies opinion that Dr. Strbans plan was incorrect
    and failed to appreciate that Ms. Manarys condition required immediate
    attention by those with the necessary cardiac expertise.  Dr. Davies opinion
    that Dr. Halmo was required to second guess Dr. Strban was based on his
    belief that Dr. Strbans opinion was wrong and that Dr. Halmo should have recognized
    that Dr. Strban had failed to appreciate the urgency of the situation.

[63]

The
    trial judge accepted that Dr. Strban met the applicable standard of care, and
    in doing so effectively rejected the premise underlying Dr. Davies opinion
    that Dr. Halmo was negligent.  Given the trial judges finding that Dr.
    Strbans proposed treatment plan was reasonable, the question should have been:
    was Dr. Halmo negligent in accepting what the trial judge found was a
    reasonable treatment plan proposed by Dr. Strban?

[64]

On
    the trial judges analysis, Dr. Strbans plan for a cardiac consultation within
    a week or two of Ms. Manarys discharge met the applicable standard of care, but
    Dr. Halmos acceptance of that reasonable treatment plan fell below the
    standard of care applicable to Dr. Halmo.  In effect, Dr. Halmo was found
    negligent for adopting a treatment plan that the trial judge found to be reasonable
    and consistent with the standard of care applicable to Dr. Strban.

[65]

Nothing
    in the evidence explains or justifies the trial judges different findings.  Those
    findings cannot be explained on the basis that Dr. Halmo had an added expertise
    and should, therefore, have seen that Ms. Manarys condition required urgent
    attention from a cardiologist at a tertiary care centre even if Dr. Strban,
    acting reasonably, could not be expected to have seen that need.  The bulk of
    the evidence indicated that Dr. Halmo had considerably less expertise in the
    treatment of the medical problems faced by Ms. Manary than did Dr. Strban.  Even
    Dr. Davies did not suggest that Dr. Halmo would be expected to have more
    expertise in the diagnosis and treatment of Ms. Manarys heart-related problems
    than did Dr. Strban.

[66]

Counsel
    for the respondent, relying heavily on the trial judges reasons, suggests that
    the different findings are explained by Dr. Halmos added obligations as the
    MRP.  Dr. Halmo was required to assess the full clinical picture and
    formulate an overall plan of care.  There is no doubt that Dr. Halmo had those
    obligations.  There is, however, no evidence that Dr. Halmo was aware of or
    should have been aware of any part of Ms. Manarys clinical picture that was
    not known to Dr. Strban.  Both doctors had equal access to and equal knowledge
    of the facts relevant to an assessment of whether Ms. Manarys heart-related
    problems should be treated as an emergency.

[67]

Nor
    can Ms. Manarys pregnancy and Dr. Halmos role as her MRP and obstetrician
    explain the trial judges different findings.  All of the doctors agreed that Ms.
    Manarys heart-related problems had to be addressed before she delivered.  The
    trial judge did not, however, suggest that Dr. Halmo was aware of or should
    have been aware of pregnancy-related issues that would require him to reject
    Dr. Strbans proposed treatment plan.

[68]

In
    considering whether the finding against Dr. Halmo can be justified based on
    pregnancy-related problems, it is important to realize that on the facts of
    this case, it was of no assistance to the plaintiff to demonstrate that by
    virtue of her pregnancy and the need to transfer her to a tertiary care centre,
    Ms. Manary should have been seen by a cardiologist before her discharge from
    the hospital.  The plaintiff could only succeed by showing that the situation
    was sufficiently urgent to necessitate her transfer to a tertiary care centre
    before August 15 so that she could undergo the necessary surgery no later than
    the morning of August 15.  Ms. Manarys most unfortunate death on August 15
    renders irrelevant questions as to whether the stage of her pregnancy dictated
    that she receive a cardiac consultation well before the week or two envisioned
    by Dr. Strban.

[69]

Finally,
    there is nothing in Dr. Halmos role as MRP that can reconcile the results
    arrived at by the trial judge.  Clearly, as counsel for the respondent
    contends, Dr. Halmo was obliged to formulate an overall plan of care.
    However one describes that oversight role, nothing in the evidence suggests that
    oversight extended to an obligation to disregard the reasonable opinions
    offered by specialists specifically engaged in the treatment of Ms. Manary
    because of their expertise.  Even if one accepts Dr. Davies contention that an
    MRP must second guess specialists brought in to consult on the treatment of a
    patient, Dr. Davies does not suggest that the second guessing extends to an
    obligation to reject a reasonable treatment plan proposed by a specialist
    qualified to offer that proposed treatment plan.

[70]

How
    did the trial judge arrive at these inconsistent findings?  Counsel for the
    appellant persuasively argues that the trial judges inconsistent findings are
    explained by his application of an overly rigorous standard of care to Dr.
    Halmos conduct.  Counsel submits that the trial judge improperly imposed that
    more rigorous standard because of Dr. Halmos role as the MRP.

[71]

Counsel
    relies on the following passage in the trial judges reasons:

Had Dr. Halmo, who bore ultimate responsibility for the
    patient, not merely accepted the opinion and paths of treatment taken by the
    respirologists,
he would have been driven to the
    conclusion that the safest course was an immediate transfer to a tertiary care
    centre
[Emphasis added.]

[72]

Counsel
    for the appellant submits the safest course standard is significantly higher
    than the reasonableness standard applied to Dr. Strbans conduct.  A proposed
    treatment plan may be reasonable but may not be the safest treatment available
    in the circumstances.  Counsel submits that the trial judges inconsistent
    findings indicate that Dr. Halmo was found negligent not because he failed to
    act as a reasonable obstetrician and MRP would in the circumstances, but
    because he failed to choose the safest course for Ms. Manary.

[73]

Counsels
    reading of the trial judges reasons may well explain the inconsistent results.
    If the trial judge did apply a safest course standard of care he erred in
    law.  Dr. Halmos liability had to be tested against the standard of what a
    reasonable physician in the circumstances would have done.  Those circumstances
    included the fact that Dr. Halmo was the MRP.  His role as the MRP did not,
    however, require that he follow only the safest course of treatment.  That standard
    is wholly unworkable in the real world of limited medical resources and is contrary
    to binding precedent: see
Lapointe v. Hôpital Le Gardeur
, [1992] 1
    S.C.R. 351, at p. 362.

[74]

Counsel
    for the appellant also argues that even if the inconsistent findings cannot be
    traced to a legal error, those findings cannot stand.  She argues that
    irreconcilable findings of fact that are not the product of a legal error must
    reflect reversible factual error.

[75]

I
    find support for counsels submission in
R. v. Sinclair
, 2011 SCC 40,
    [2011] 3 S.C.R. 3, at para. 21, where the Supreme Court, in the context of considering
    the reasonableness of a trial judges decision in a criminal case said:

A verdict is likewise unreasonable where the judge
draws an inference or makes
    a finding of fact essential to the verdict
if that inference or finding
    of fact is demonstrably incompatible with evidence that is neither contradicted
    by other evidence nor rejected by the trial judge.
[Emphasis added.]

[76]

Reasonableness,
    the concept most commonly used in the criminal law context to describe the
    standard of appellate review applicable to findings of fact, is also used in
    the civil context.  In
H.L. v. Attorney General of Canada
, 2005 SCC 25,
    [2005] 1 S.C.R. 401, at para. 4, Fish J., for the majority, in describing the
    standard of review applicable to appellate review of fact finding, said:

[I]t [the Court of Appeal] may substitute its own view of the
    evidence and draw its own inferences of fact where the trial judge is shown to
    have committed a palpable and overriding error
or made
    findings of fact that are clearly wrong, unreasonable or unsupported by the
    evidence.
[Emphasis added.]

[77]

The
    finding that Dr. Halmo was negligent is demonstrably incompatible with the
    finding that Dr. Strban was not negligent.  That incompatibility goes beyond an
    inconsistency between a finding of fact and other evidence that was neither contradicted
    nor rejected.  The incompatibility in this case is more fundamental in that it
    arises out of two inconsistent findings on the ultimate questions faced by the
    trial judge.

[78]

Even
    if the inconsistent findings are not the product of the legal error as alleged
    by the appellant, their demonstrable incompatibility convinces me that the
    finding against Dr. Halmo is unreasonable and warrants appellate intervention
    on that basis.  Ultimately, it does not matter whether the irreconcilable
    findings reflect legal error, a palpable and overriding error in the fact
    finding process, or an unreasonable factual finding.  In any event, the result
    cannot stand.  As the finding in respect of Dr. Strban is not challenged, it
    follows that the finding that Dr. Halmo was negligent must be set aside.

V

the causation issue

[79]

As
    I would allow the appeal for the reasons set out above, it is unnecessary to
    address the appellants causation argument.  However, for completeness, I will briefly
    indicate why I would not have given effect to that argument.

[80]

There
    was evidence from the plaintiffs experts that by no later than the morning of
    August 11 the doctors at Grand River Hospital should have treated Ms. Manarys
    condition as an emergency and obtained an immediate cardiac consultation and
    transferred Ms. Manary to a tertiary care centre.  There was also evidence from
    those experts that had Ms. Manary been transferred by August 11, it was likely
    that she would have had life-saving surgery before August 15.

[81]

The
    appellant is critical of the plaintiffs failure to call a cardiologist to
    speak to the likely course of events had Dr. Halmo requested a cardiac
    consultation.  The absence of that evidence could well have had a negative
    impact on the plaintiffs case as it related to causation.  I do not agree,
    however, that without the evidence of a cardiologist the plaintiff could not
    prove causation.

[82]

Had
    the finding that Dr. Halmo was negligent been sustainable in light of the
    finding that Dr. Strban was not negligent, the evidence of the plaintiffs
    experts was enough to demonstrate causation.  That evidence was accepted by the
    trial judge.

VI

conclusion

[83]

I
    would allow the appeal, set aside the judgment below, and dismiss the action
    against Dr. Halmo.  I do not reach Dr. Halmos application for leave to appeal
    the cost order made at trial.

D. Doherty J.A.

Juriansz and Hoy JJ.A.:

[84]

We
    would dismiss this appeal.

[85]

The
    issues concerning the responsibilities of the various doctors involved in Ms.
    Manarys care must be considered in light of the Hospitals policies. A
    representative of the Hospital introduced Exhibit 4, Policy 2-30 from the
    Hospitals Physician Manual entitled Most Responsible Practitioner/Attending
    Practitioner. The Policy Manual indicates the Policy was approved by the
    Medical Advisory Committee.

[86]

The
    document states that:

IT IS THE POLICY OF THE HOSPITAL THAT:

The Most Responsible Practitioner/Attending Practitioner
    (MRP) is the practitioner most responsible for the hospital care of a
    particular patient. The MRP is responsible for writing and clarifying orders,
    and providing a plan of care, obtaining consultations as appropriate,
    coordinating care, as well as the discharge process. Staff concerns about a
    patient should be directed to the MRP.

The MRP is to maintain communication with the patients
    relatives and maintain/liaison if necessary, with consultants and family
    practitioners involved in the patients care.

The MRP will be the admitting practitioner or such other
    practitioner to whom the patient has been transferred, from time to time, in
    accordance with the Rules. There shall be only one practitioner at any one time
    referred to as the most responsible practitioner.

[87]

The
    Policy goes on to stipulate certain formal and procedural matters. A patient
    cannot be admitted unless an MRP is designated. On admission, the MRP must be
    clearly defined on the face sheet. The transfer of the MRP responsibility must
    be done in writing, on the order sheet to another practitioner. The Hospital
    representative testified that the Policy is distributed to all physicians on
    staff. The Hospital required that the physician fulfilling the MRP
    responsibility sign the face sheet that identified him or her as the MRP. Dr.
    Halmo signed the document designating him as the MRP for Ms. Manary and he
    remained the MRP from the time of her admission until her death.

[88]

At
    trial, the major issue in the respondents case against Dr. Halmo was the
    import of the Hospitals MRP Policy. As the trial judge recounts, counsel for Dr.
    Halmo put forward that there was an implied and undocumented understanding
    between physicians as to the division of their responsibilities under the
    Policy. They submitted that the implied and undocumented understanding resulted
    in coordinated, comprehensive care based on the relative expertise of the
    physicians. Ms. Manarys chart, counsel for Dr. Halmo argued at trial, made it clear
    that the respirologists were closely managing Christine's care. The argument
    advanced at trial, and repeated here, was that Dr. Halmo, as MRP, was not
    required to question the diagnosis and treatment plan that the respirologists,
    principally Dr. Strban, had instituted, or consider any alternative plan of
    care. Counsel put to the trial judge that Dr. Halmo was less expert than Dr.
    Strban in cardiac issues and that he appropriately deferred to Dr. Strbans
    plan to discharge Ms. Manary and arrange a cardiac consultation for her in a
    week or two.

[89]

The
    trial judge emphatically rejected this view of Dr. Halmos role and
    responsibilities as the MRP. He said that the defence position on the division
    of physicians responsibilities was counterintuitive. It would defeat the
    purpose of designating an MRP and mean that Dr. Halmo served no function beyond
    that of an obstetrician. He went on to find that:

The standard of care of an MRP is not limited to delegating tasks
    and responsibilities to experts. An MRP is not absolved of responsibility with
    respect to a medical condition simply because that medical problem is beyond
    the expertise of the MRP. As stated in Exhibit 4 [the MRP policy], the MRP is
    responsible for a plan of care.
That plan should address the totality of
    care
, not only obstetric issues. [Emphasis added.]

[90]

The
    Hospitals Policy Manual and the testimony of Dr. Davies provided abundant
    support for the trial judges rejection of the narrow implied and undocumented
    view of the responsibilities of an MRP advocated by Dr. Halmo.

[91]

The
    trial judge found that Dr. Halmo did not exercise critical judgment or provide
    an appropriate plan of care for Ms. Manary, and accordingly failed to fulfill
    his responsibilities as the MRP.

[92]

Before
    reviewing the basis for that finding, we state our agreement with the trial
    judges observation that a failure to exercise objective and critical judgment
    can constitute negligence. The trial judge surmised that perhaps Dr. Halmo had
    been lulled into a belief that any responsibility beyond obstetrical care was
    not his. Dr. Halmos position at trial supports that supposition. As stated,
    Dr. Halmos position at trial was not that he had fulfilled his broad
    responsibilities as MRP, but that according to the narrow implied and
    undocumented understanding of the MRP position, those responsibilities had
    been largely transferred to other physicians. However, as the trial judge
    stated The standard of care required of a MRP cannot be met by an implied and
    undocumented understanding or by merely delegating responsibility.

[93]

It
    is important to remember the hospital context in which Dr. Halmo was
    functioning at the time. There was no cardiac specialist on staff at Grand
    River Hospital. Ms. Manarys complaints of severe chest pain were addressed by
    respirologists, principally by Dr. Strban.

[94]

Dr.
    Strban, as the primary consultant, believed that Ms. Manary suffered from a
    pulmonary embolism. He was away from the hospital on August 9 and 10. On August
    11 he became aware that over the weekend Ms. Manary had experienced a
    resurgence of severe pain and that a CT angiogram, conducted August 10, had
    revealed that there was a big aneurysm in her ascending aorta. The aneurysm
    was dilated to a dimension of 6 cm x 6 cm. Nevertheless, Dr. Strban maintained
    his differential diagnosis of pulmonary embolism - a diagnosis within the realm
    of respirology, as opposed to cardiology.  He explained that he maintained that
    diagnosis, though he was concerned about the weekend pain she experienced,
    because the CT angiogram showed no dissection, and she seemed greatly improved
    from August 8. On August 11, she was not having much pain, was off oxygen, was
    walking around and looking a lot better. He attributed Ms. Manarys marked
    improvement to the treatment she was receiving for pulmonary embolism. He
    considered that Ms. Manarys cardiac issues could be addressed on an outpatient
    basis. According to Dr. Strban on August 12 or 13, he communicated his
    diagnosis to Dr. Halmo by telephone and undertook to arrange a cardiac
    consultation for her on an urgent basis within a week or two. On August 13 he
    signed off placing the entry on her chart
ready for
    discharge home from respirology point of view
 (emphasis in original).
    Under the MRP Policy Dr. Halmo remained responsible for Ms. Manarys discharge.

[95]

The
    trial judge dismissed the respondents action against Dr. Strban. Dr. Strban
    was bound to exercise that degree of care and skill which could reasonably be
    expected of a normal, prudent practitioner of the same expertise and
    experience. We note in passing that the trial judge cited
Fish v.
    Shainhouse
, [2005] O.J. No. 4575, for the proposition that in medical
    malpractice cases expert evidence is required and the expert evidence must be a
    physician who practices in the same area and with the same degree of expertise
    as the specialist against whom negligence is alleged. The respondents did not
    call an expert respirologist as a witness.

[96]

While
    the trial judge found that Dr. Strban met the standard of care required of a
    respirologist, he found that Dr. Halmo fell short. He concluded that as an
    obstetrician and MRP, [Dr. Halmo] did not exercise that degree of care and
    skill which could reasonably be expected of a normal prudent practitioner of
    the same experience and standing as an obstetrical specialist
acting as an
    MRP
in August 2003 (Emphasis added). Dr. Halmo was required to
    participate in a fuller manner by exercising independent critical judgment.

[97]

As
    we read his reasons, the trial judge found that Dr. Halmos significant failing
    occurred no later than the morning of August 11. On the morning of Saturday,
    August 9, Dr. Halmo called the respirologist on duty, Dr. Jackson, to discuss
    getting a cardiology consultation. After she examined Ms. Manary on August 9,
    Dr. Jackson noted on her chart that she should have a cardiology review. In
    his morning rounds on August 11, Dr. Halmo read the notes on Ms. Manarys
    chart, including the indication that the August 10 CT scan disclosed a big
    aneurysm on Ms. Manarys ascending aorta. Later on August 13, Dr. Strban noted
    on Ms. Manarys chart that she needed a cardiology consult OPD  that is
    through the outpatient department. According to Dr. Halmo, he had no discussions
    with Dr. Strban until August 13.

[98]

The
    trial judge accepted the evidence of Dr. Davies that the enlarged aorta
    warranted attention and that an MRP had a duty to consult if he did not
    understand the cardiac findings. The trial judge concluded, as we read his
    reasons, that Dr. Halmo, who bore ultimate responsibility for the patient,
    should have exercised independent critical judgment and concluded that
    immediate, expert cardiac consultation, beyond what the chest team at the
    Hospital could provide, was required and should have arranged a transfer to a
    tertiary care center where an evaluation of her enlarged aorta and immediate
    management of her condition could be carried out.

[99]

If,
    as Dr. Strban believed, the pain that Ms. Manary had been experiencing in the
    hospital was not cardiac-related, the large aneurysm was nonetheless a clear
    and significant cardiac problem beyond the expertise of the respirologists that
    would have to be addressed before delivery. The trial judges reasons must be
    assessed in the context of the record. As Dr. Davies testified, one can never
    predict exactly when a baby is coming. According to Dr. Cowal, the defences
    obstetrical expert, 90 percent of patients deliver within 37 to 41 weeks. And,
    as Dr. Cowal testified, a prudent obstetrician would know that the stresses of
    labour and delivery could cause a tear, a bleed or a dissection of an aneurysm.
    Ms. Manary  who had been in severe pain for several days, who suffered from
    gestational diabetes, and whose pre-pregnancy weight was 215 pounds - was fast
    approaching her 37
th
week. Grand River Hospital lacked the
    facilities to look after high-risk obstetrical patients, such as Ms. Manary.
    Dr. Christakis, the cardiovascular surgeon called by the defence, conceded that
    the possibility of an early delivery would be left to the obstetrician to
    evaluate.

[100]

We are not
    troubled by the fact that the trial judge found Dr. Strban met the standard of
    care applicable to a respirologist and at the same time found Dr. Halmo failed
    to meet the standard of care applicable to an obstetrician and MRP. We regard
    the argument that these two findings are logically incompatible to be but a
    variation of the argument rejected at trial  that the implied undocumented
    working relationship between physicians at the hospital allowed Dr. Halmo, the
    MRP, to delegate Ms. Manarys care to the chest team at the hospital and
    relieved him from his obligations MRP to exercise independent judgment and
    oversight. Certainly, the chest team had greater expertise in cardiac issues
    than did Dr. Halmo. We do not understand the trial judge to say that the MRP
    was required to exercise greater expertise than the respirologists. He stated
    the case turned on the determination of the standard of practice for an
    obstetrician
functioning as an MRP
 (emphasis added). Under the MRP
    policy, Dr. Halmo was responsible for obtaining consultations as appropriate,
    for coordinating care, and for a plan of care that addressed the totality of
    care, not just obstetric issues. Dr. Halmo had different expertise and
    different responsibilities than Dr. Strban. For example, it was for Dr. Halmo,
    as an obstetrician functioning as an MRP, and not Dr. Strban, to factor in both
    the timing of delivery, and the fact that delivery should not occur at the Grand
    River Hospital. The trial judge found that had Dr. Halmo recognized and
    exercised his responsibility as MRP, he would have sought an immediate transfer
    to a tertiary care centre where an evaluation of Ms. Manarys enlarged aorta
    and immediate management of her condition would have been available upon
    reading the note describing the result of Ms. Manarys CT scan. In our view,
    when read in context, the trial judge did not improperly test Dr. Halmos
    conduct against a safest course standard of care. The trial judge was clear
    that he found that Dr. Halmo fell short of the standard of care because as an
    obstetrician and MRP, he did not exercise that degree of care and skill which
    could reasonably be expected of a normal prudent practitioner of the same experience
    and standing as an obstetrical specialist acting as an MRP in August 2003.

[101]

In regard to
    causation, the trial judge was satisfied had Dr. Halmo not abdicated his
    responsibility as MRP. The cardiac evaluation of Ms. Manary, her transfer to a
    tertiary care centre where additional expertise and facilities were available,
    and the necessary surgery could have been completed days before Ms. Manarys
    untimely death on August 15, 2003. Dr. Rubins testimony supports that finding.

[102]

Finally, we are
    satisfied the trial judges reasons adequately explain to Dr. Halmo why he was
    found negligent. His implied and undocumented understanding that he had limited
    responsibilities as MRP was rejected. He failed in his actual MRP
    responsibilities to exercise judgment and provide a plan of care for Ms.
    Manary.

[103]

We would dismiss
    the appeal.

[104]

The appellant
    appealed the trial judges award of costs arguing that the judge failed to
    consider the divided success of the case and offers to settle made by Dr.
    Strban and Dr. Hanna. He argues that the trial judge focussed on the reasonable
    expectations of the parties as to what a lawyer would have to do to prepare for
    this kind of litigation to the exclusion of other factors.

[105]

The standard for
    interfering with a trial judges costs award on appeal is a high one. We are
    not persuaded there is any basis for doing so in this case. If Doctors Strban
    and Hanna had been let out of the action, the trial would have been much the
    same. The same experts would still have been required as part of the case
    against the defendant, Dr. Halmo as he argued that he was entitled to rely on
    the respirologists.

[106]

Our attention
    was not drawn to any offer to settle made by all defendants that the trial
    judge failed to consider.

[107]

We would dismiss
    the appellants costs appeal.

[108]

We would fix the
    respondents costs of the appeal in the amount of $40,000 plus disbursements
    and applicable taxes.

R.G.
    Juriansz J.A.

Alexandra
    Hoy J.A.

Released: May 14, 2013

[1]
Counsel for Manary initially cross-appealed from the finding that Dr. Hanna,
    the radiologist, and Dr. Strban, the respirologist, were not negligent.  The cross-appeal
    was not pursued.

[2]
Dr. Davies was also critical of Dr. Halmos failure to make daily progress
    notes in Ms. Manarys chart.  He stressed that the notes are essential to
    effective communication.  As I do not see the quality of Dr. Halmos notes, or
    the effectiveness of the communication among the doctors, as ultimately
    relevant to the finding of liability against Dr. Halmo, I will not address that
    part of the evidence.


COURT OF APPEAL FOR ONTARIO

CITATION: Marjadsingh v. Walia, 2013 ONCA 336

DATE: 20130523

DOCKET: C56380

Goudge, Gillese and Pepall JJ.A.

BETWEEN

Anthony Marjadsingh, personally, Sharon Marjadsingh,
    Kathy Lochan, Joshua Marjadsingh, Kyle Marjadsingh and Taylor Marjadsingh,
    minors by their litigation guardian, Anthony Marjadsingh

Plaintiffs (Appellants)

and

Harmeet Walia

Defendant (Respondent)

and

St. Dimitar Bulgarian Eastern Orthodox Church

Third Party (Respondent)

Howard W. Reininger, for the appellants

Ashley Artopoulo and Maria Abdoullaeva, for the
    respondent Harmeet Walia

Kevin Bridel, for the respondent St. Dimitar Bulgarian
    Eastern Orthodox Church

Heard: May 22, 2013

On appeal from the judgment of Justice Beth A. Allen of
    the Superior Court of Justice, dated November 23, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view there was no surprise or prejudice to the appellant due to
    the release and the settlement issue being raised.  We would therefore give no
    effect to the appellants first argument.  We also agree entirely with the
    motion judges disposition of the issue and with her thorough reasons.

[2]

We would however grant leave and allow the appeal from the costs order.
    No request for more than partial indemnity was made and we see no basis for
    doing so here.  The costs order below is set aside and an order of costs is
    made as follows: to the respondent Walia in the amount of $8800 inclusive of
    disbursements and HST and to the respondent St. Dimitar in the amount of $5000
    inclusive of disbursements and HST.

[3]

Costs of the appeal to these respondents in the amounts of $7000 and
    4000 respectively all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION:
    Martin v. TD General Insurance Company, 2013 ONCA 331

DATE: 20130523

DOCKET: C54889

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Melissa Martin

Plaintiff/Respondent

and

TD General Insurance Company

Defendant/Appellant

Dwain C. Burns and Jennifer Matic, for the appellant

Jane Poproski, for the respondent

Heard and released orally: May 3, 2013

On appeal from the judgment of Justice John Cavarzan of
    the Superior Court of Justice, dated December 16, 2011.

ENDORSEMENT

[1]

The appellant insurer challenges two findings made by the trial judge:
    1) that the respondent qualified for the non-earner SABS benefits following her
    car accident on August 16, 2003, and 2) that the benefits should be payable for
    four years following the accident. The respondent cross-appeals on the issue of
    the duration of her entitlement, claiming that it is ongoing and should not
    have been limited to four years following the accident.

[2]

The test for non-earner benefits entitlement is set out in s. 12(1)1 of
    the Statutory Accident Benefits Schedule: Part III of O. Reg. 403/96 under the
Insurance
    Act
, which provides:

12.(1)1 The insurer shall pay an insured person who
    sustains an impairment as a result of an accident a non-earner benefit if the
    insured person meets any of the following qualifications:

1. The insured person suffers a complete inability
    to carry on a normal life as a result of and within 104 weeks after the
    accident and does not qualify for an income replacement benefit.

[3]

There is no appeal of the trial judges finding that the respondent did
    not qualify for an income replacement benefit. The appellant challenges the
    trial judges finding that the respondent suffered a complete inability to
    carry on a normal life as a result of and within 104 weeks after the accident.

[4]

The trial judge made his findings at paras. 76-82 of his reasons. Applying
    the test set out by Simmons J.A. in
Heath v. Economical Mutual Insurance
    Company
, 2009 ONCA 391, he concluded at paras. 82-83:

I find that in the immediate post-accident period it cannot be
    said that the plaintiff engaged in most of her pre-accident homemaker and
    recreational activities. Pain prevented her from doing so. In my view, the
    plaintiff met the criteria for entitlement to the NEB. It remains only to
    determine the period for which the NEB must be paid.

[5]

The issue of the effect of post-accident employment was discussed and
    decided by this court in the case of
Galdamez v. Allstate Insurance Company
    of Canada
, 2012 ONCA 508. The trial judge only had the trial decision in
    that case to consider. Based on this courts decision in
Galdamez
, the
    fact that the respondent was employed following the accident does not
    disqualify her from receiving non-earner benefits if she otherwise qualifies.

[6]

The respondent argues that the trial judge erred by using the post
    accident job that she held for approximately two years at the Avondale
    convenience store as a point of comparison under the
Heath
test. The
    respondent says that because she did not have that kind of job before the
    accident, it is not something that can be properly compared to her pre-accident
    activities under the
Heath
formula.

[7]

We do not accept this submission. The trial judge did not err in
    considering the post accident job not as a disqualifying factor for non-earner
    benefits (
Galdamez
), but as a point of comparison in the respondents
    pre-accident and post accident activities.  The test is found at para. 50 of
Heath
:

Generally speaking, the starting point for the analysis of
    whether a claimant suffers from a complete inability to carry on a normal life
    will be to compare the claimant's activities and life circumstances before the
    accident to his or her activities and life circumstances after the accident.
    This follows from the language of the section as well as a review of the
    predecessor provisions.

[8]

The respondents approach would force the court to ignore significant
    post accident activities in the analysis that show her level of functioning. In
    order for the Heath test to be workable, it is necessary for the court to
    factor into the analysis, any significant post accident activities.

[9]

Having applied the correct test from
Heath
, and having taken
    all of the relevant evidence that he accepted into account, the trial judges
    conclusion that the respondent met the test for the receipt of non-earner
    benefits is entitled to the deference of this court. The first ground of appeal
    is therefore dismissed.

[10]

The
    second issue raised by both parties is the duration of the payment period of
    the benefits. The appellant says that the trial judge had no basis on the
    evidence to extend the benefits to 4 years following the accident. Three
    assessments done in late 2005 that the trial judge accepted found that at that
    time the respondent was not substantially disabled from carrying on her usual
    daily activities. This represented a significant improvement in the
    plaintiffs ability to conduct her pre-accident activities including full-time
    employment.

[11]

The
    respondent was later assessed by Dr. Challis in January 2008. His assessment
    confirmed the findings in the 2005 assessments. The trial judge concluded,
    based on all these assessments, that the respondent no longer qualified for the
    non-earner benefit after 4 years following the accident.

[12]

In
    our view, the evidence relied on by the trial judge justifies payment of the
    non-earner benefit only up until the end of November 2005, i.e for 2 years and
    3.5 months following the accident.

[13]

The
    appeal will be allowed to that extent and the amount of the judgment will be
    reduced accordingly. The cross-appeal will accordingly be dismissed.

[14]

In
    light of the divided success, there will be no costs of the appeal.

Kathryn Feldman J.A.

M. Tulloch J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mauldin v. Cassels Brock & Blackwell
    LLP, 2013 ONCA 307

DATE: 20130508

DOCKET: C52912 and C52913

Winkler C.J.O., Laskin, Sharpe, Armstrong and Rouleau
    JJ.A.

C52912

BETWEEN

Fred Mauldin, Dan Myers, Robert Blomberg,
    Theodore Landkammer, Lloyd Chelli, Stephen Yee, Marvin Cleair, Carolyn Cleair,
    Richard Hanna, Douglas Laird, Charles Ivans, Lyn White and Athena Smith

Plaintiffs (Respondents)

and

Cassels Brock &
    Blackwell LLP, Gregory Jack Peebles and
Robert Hryniak

Defendants (
Appellant
)

C52913

AND BETWEEN

Bruno Appliance and Furniture, Inc.

Plaintiff (Respondent)

and

Cassels Brock &
    Blackwell LLP, Gregory Jack Peebles and
Robert Hryniak

Defendants (
Appellant
)

Sarit E. Batner and Moya J. Graham, for the appellant
    Robert Hryniak

Javad Heydary, David K. Alderson and Ruzbeh Hosseini,
    for the respondents

Paul Le Vay and Luisa Ritacca, for the defendant Cassels
    Brock

Jonathan L. Rosenstein, for the defendant Gregory Jack
    Peebles

Heard:  June 21, 22 and 23, 2011

On appeal from the order of
    Justice A. Duncan Grace of the Superior Court of Justice, dated October 22,
    2010, with reasons reported at 2010 ONSC 5490.

COSTS ENDORSEMENT

A.

background

[1]

Two sets of plaintiffs in two actions (the Mauldin action and the
    Bruno action) sued the defendants, Robert Hryniak, Cassels Brock LLP, and
    Gregory Jack Peebles, for investment losses arising from allegedly fraudulent investment
    schemes. The plaintiffs in the two actions (the Mauldin group and Bruno)
    brought motions for summary judgment against all of the defendants.

[2]

The two motions were heard together after the amendments to Rule 20 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, had come into
    effect. The motion judge granted the motions as against Hryniak, but dismissed
    the motions as against Cassels Brock and Peebles on the basis that a trial was
    required to determine their liability. He awarded the Mauldin group damages of USD$1,190,401
    and awarded Bruno USD$1 million.

[3]

Hryniak appealed from the orders for summary judgment against him. His
    appeals were heard by a five-judge panel of this court, together with three
    other appeals from decisions under the amended Rule 20: see
Combined Air Mechanical
    v. Flesch
, 2011 ONCA 764, leave to appeal to the S.C.C. granted, [2012]
    S.C.C.A. 47, appeal heard and reserved (26 March 2013). This courts intention
    in
Combined Air
was to clarify for judges and litigants in the
    province of Ontario the nature of the test that applies for determining whether
    or not summary judgment should be granted, the scope and purpose of the new
    powers under the amended rule, and the types of cases that are amenable to
    summary judgment.

[4]

The court dismissed Hryniaks appeal from the motion judges order
    granting summary judgment in favour of the Mauldin group and allowed Hryniaks
    appeal from the motion judges order granting summary judgment in favour of Bruno.
    The parties were asked for written submissions on the costs of Hryniaks appeals
    and the costs of the summary judgment motion in the Bruno action. The parties
    were also asked to file written submissions on the order this court should make
    concerning the proceeds of a letter of credit in the amount of $950,000, which Hryniak
    posted as a condition of granting his motion to extend time to perfect his
    appeals: see
Mauldin v. Hryniak
, 2011 ONCA 67, 274 O.A.C. 353, at para.
    41, varied 2011 ONCA 126.

[5]

The letter of credit issue may be dealt with in short order. The Supreme
    Court of Canada has heard and reserved Hryniaks appeal from this courts
    decision upholding the summary judgment against him in favour of the Mauldin
    group. It would not be appropriate for this court to release all or even part
    of the proceeds secured by the letter of credit to the Mauldin group pending
    the disposition of this appeal. The parties may return to this court to deal
    with the letter of credit following the release of the Supreme Court of
    Canadas decision.

[6]

We now consider the costs issues.

B.

motion judges costs order

[7]

The motion judge ordered Hryniak to pay $275,000 in costs of the motions,
    plus $15,000 in disbursements. He stated, at para. 36, that the entitlement to
    this award should be shared by the Mauldin group and Bruno based on the
    principal amounts awarded to them in my reasons on the motions. He reserved to
    the trial judge the costs of any amount relating to the various
    cross-examinations and the Rule 39.03 examinations since they may be used at
    trial.

[8]

The motion judge went on to award the successful defendants their costs
    of the motions. He awarded $30,000 to Peebles, inclusive of disbursements and
    applicable taxes. He awarded Cassels Brock $75,000 in respect of the Bruno action
    and $65,000 in respect of the Mauldin action, inclusive of disbursements and
    taxes (at paras. 42 and 45). Liability for paying these costs was allocated
    between the Mauldin group and Bruno in proportion to the principal amounts they
    invested (at para. 66).

[9]

Finally, the motion judge considered the appropriateness of making a
Sanderson
or a
Bullock
order. A
Bullock
order requires an unsuccessful
    defendant to reimburse the plaintiff for the successful defendants costs; a
Sanderson
order requires the unsuccessful defendant to pay the successful defendants
    costs directly: see
Moore (Litigation Guardian of) v. Wienecke
,
[2006] O.J. No. 2044, at para. 11,
    revd 2008 ONCA 162, 90 O.R. (3d) 463 (C.A.), but affirmed on this point.

[10]

The
    motion judge considered the following two-step test for deciding whether to make
    a
Sanderson
order:

1.

As a threshold matter, was it reasonable for the plaintiffs to join the
    defendants in one action (or, as here, in one motion)?

2.

Is a
Sanderson
order fair and reasonable in the circumstances?

[11]

In answering the threshold question in the affirmative, the
    motion judge noted that the defendants asserted crossclaims against each other.
    It was thus reasonable for the plaintiffs to join the defendants when they
    filed their motions for summary judgment.

[12]

Concerning
    the second question, the motion judge concluded it was appropriate that Hryniak
    bear the responsibility for some, but not all, of the costs awarded to Cassels
    Brock and Peebles. The motion judge made several observations in reaching this
    conclusion, at para. 63. For example, he observed that Hryniaks ability to
    make allegations against Peebles  thereby perpetuating Cassels Brocks
    involvement  was partly attributable to Peebles conduct in allowing Hryniak
    to have access to Cassels Brocks trust account whenever he chose and
    seemingly without question.

[13]

The
    motion judge held that one-third of the costs awarded to Cassels Brock and
    Peebles should be payable by Hryniak. This meant that Hryniak was required to
    pay the all-inclusive amounts of $46,667 to Cassels Brock and $10,000 to
    Peebles. The plaintiffs were required to pay the all-inclusive amounts of $93,333
    to Cassels Brock and $20,000 to Peebles, with liability allocated in proportion
    to the principal amounts they invested.

C.

Parties POSITIONS ON COSTS

(1)

Hryniaks Submissions

(a)

Costs of the Motions
    and the Appeals

[14]

Hryniak
    acknowledges that the parties were not asked for submissions on the costs
    awarded on the summary judgment motion in the Mauldin action. He contends that the
    court needs to address this issue because the motion judge did not allocate the
    total costs award of $290,000 between the two actions. According to Hryniak,
    the work done on behalf of the plaintiffs on each motion was roughly the same
    and, accordingly, the total award should be equally divided.

[15]

Hryniak
    submits that the parties should bear their own costs of the Mauldin groups motion.
    Alternatively, he submits that the costs award to the Mauldin group be $108,750,
    all-inclusive. This amount represents 50 per cent of the total costs award reduced
    by a contingency of 25 per cent to reflect the inappropriate pursuit of summary
    judgment.

[16]

Regarding
    the costs of the appeal, Hryniak asks that the parties bear their own costs of
    the appeal in the Mauldin matter. Alternatively, he asks that costs of $32,000,
    all-inclusive, be awarded to the Mauldin group.

[17]

In
    respect of the Bruno motion, Hryniak requests costs in the amount of $145,000,
    all-inclusive. This represents one-half of the costs order in the plaintiffs
    favour on the summary judgment motions.

[18]

Hryniak
    requests costs of the appeal in respect of the Bruno motion in the amount of
    $32,000, payable forthwith. This amount represents half of his costs on a
    partial indemnity basis.

[19]

In
    support of his position on the costs of the motions and the appeals, Hryniak
    asks this court to take into account its comments in
Combined Air
, at para. 152,
that neither of these
    actions should have been the subject of summary judgment motions. The
    underlying motions were costly, which should result in a reduction of the cost
    awards in favour of the Mauldin group on both the appeal and the motion. The
    summary judgment motion was an inefficient proceeding. Hryniak will still need
    to defend himself at a trial against other causes of action that the Mauldin group
    are pursuing against him.

(b)

Sanderson
Order

[20]

Hryniak contends that the motion judges
Sanderson
order
    requiring him to pay one-third of the successful defendants costs of the
    summary judgment motions should be set aside. Considering the courts reasons
    regarding the inappropriateness of these summary judgment motions, the
Sanderson
order is no longer appropriate. Moreover, given that the appeal in the Bruno matter
    was allowed, there was no success by the plaintiff against any of these
    defendants and the
Sanderson
order is no longer available.

(2)

Mauldin groups and
    Brunos Submissions

(a)

Costs of the Motions
    and the Appeals

[21]

The
    position of the Mauldin group and Bruno is that this court should not interfere
    with the motion judges costs order.

[22]

The
    Mauldin group submits that there is no need for this court to revisit the
    motion judges costs order on the basis that it awarded a global figure to both
    sets of plaintiffs. The motion judge, at para. 36, allocated the costs award
    between the Mauldin group and Bruno based on the principal amounts awarded to
    them in his reasons on the motion. On this formula, the Mauldin group was
    awarded costs of $158,181.81 and Bruno was awarded costs of $131,818.18
    (all-inclusive).

[23]

The
    Mauldin group further submits that Hryniak is abusing the opportunity to make costs
    submissions concerning this motion by effectively launching an appeal from the
    costs order without having sought leave to appeal. It is not open to this court
    to review the merits of the costs order in the absence of an application for
    leave to appeal.

[24]

Regarding
    the costs of the appeal, the Mauldin group asks that Hryniak pay its costs
    forthwith, fixed on a substantial indemnity scale in the amount of $69,627.52,
    plus disbursements of $18,182. The conduct giving rise to the liability in this
    case is deserving of disapproval in the form of substantial indemnity costs:
    see generally,
Authorson (Litigation guardian of) v. Canada

(Attorney
    General)
(2002), 215 D.L.R. (4
th
) 544 (Ont. C.A.). According to
    the Mauldin group, given the uncertain state of the law on the test for summary
    judgment, it would be unfair to deny these plaintiffs their costs of the
    appeal.

[25]

In
    support of Brunos position that the costs of the motion remain as ordered by
    the motion judge, Bruno submits that this outcome is justified by Hryniaks
    reprehensible pre-litigation conduct, including not investing Brunos money,
    but using it for his own requirements. Bruno also points out that Hryniak did
    not appeal from the costs order of the motion judge.

[26]

With
    respect to the costs of the appeal, Bruno asks that Hryniak pay costs in the
    amount of $45,521.47 on a partial indemnity basis, or in the alternative, that
    no costs be payable on the appeal. The court may deviate from the general rule
    that costs follow the event when it is just and equitable to do so:
Wallace
    v. Allen
(2007), 86 O.R. (3d) 489 (S.C.J.), at para. 10. Hryniaks conduct
     both pre-litigation and his ongoing conduct  is so reprehensible that it is
    deserving of sanction.

[27]

In
    support of the alternative position that no costs be awarded on appeal, Bruno
    points out that this court considered a novel and important issue in the use of
    summary judgment under the new Rule 20. This is a factor in determining whether
    costs are to be made payable on appeal:
MDG Kingston Inc. v. MDG Computers
    Canada Inc.
, 2008 ONCA 656, at para. 40.

(b)

Sanderson
Order

[28]

The
    Mauldin group and Bruno submit that the motion judges
Sanderson
order
    should stand. The manner in which Hryniak chose to execute his fraud resulted
    in circumstances that caused the plaintiffs to include the remaining defendants
    in this action. In any event, no appeal of the
Sanderson
Order is
    properly before the court.

(3)

Co-Defendants
    Submissions on the
Sanderson
Order in respect of the     Bruno motion

[29]

Cassels
    Brock submits that a
Sanderson
Order is only appropriate where the
    moving party succeeds against at least one of the responding parties, and where
    the order would be just and fair in the circumstances. Considering that Bruno was
    entirely unsuccessful on the motion against all of the defendants, the
Sanderson
Order is no longer appropriate. Accordingly, Bruno should now be found responsible
    for the portion of the co-defendants costs that Hryniak was originally ordered
    to pay.

[30]

Cassels
    Brock further submits that it is not fair and equitable for it to continue to
    bear the risk of non-recovery of costs payable by Hryniak under the
Sanderson
order: see
Whaley v. Dennis,
[2006] O.J. No. 683 (S.C.J.), at para. 55.

[31]

Cassels
    Brock proposes that, in assessing the amount subject to the
Sanderson
order,
    this court should follow the motion judges approach of awarding costs in
    proportion to the amounts invested by each set of plaintiffs. Using this formula,
    Bruno should be liable for an additional $21,212.27 in favour of Cassels Brock.

[32]

Peebles
    adopts the submissions of Cassels Brock. He asks this court to set aside the
Sanderson
Order and to make the remaining costs in the Bruno motion payable by Bruno.

D.

anaylsis

[33]

As
    a preliminary point, there is no basis for Hryniaks position that the motion
    judge did not allocate the costs award between the two actions. The motion
    judge dealt with entitlement at para. 36 of his reasons by apportioning the
    costs award based on the principal amounts awarded on the motion.

[34]

Hryniaks
    submissions concerning the costs of the Mauldin groups successful motion for summary
    judgment were not requested by this court in its disposition of the appeal and
    are not properly before us.  Hryniak did not seek leave to appeal from the
    motion judges cost order in respect of that motion, including the motion
    judges
Sanderson
order in relation to the costs of the Mauldin
    groups motion.

[35]

Even
    leaving aside this procedural impediment to accepting Hryniaks position, we
    see no reason to depart from the principle that costs are awarded to the
    successful party. As this court pointed out in
Combined Air
, at para.
    156: Hryniaks defence to this action simply has no credibility. There is no
    reason to deprive the successful plaintiffs of their costs of the motion in the
    circumstances. Nor is there any reason to interfere with the
Sanderson
order in respect of the Mauldin groups motion given the outcome of the appeal.

[36]

However,
    the situation is different with respect to Hryniaks successful appeal from the
    summary judgment against him in the Bruno matter. As we stated in
Combined Air
,
    at para. 166: The evidence against Hryniak in that action was not nearly as
    overwhelming. We further explained that at least two genuine issues require a
    trial in that action, including the issue whether Hryniak made any statement
    that induced Bruno to invest with him. In these circumstances, we see no reason
    to depart from the general principle that costs follow the event.

[37]

We
    therefore set aside the motion judges costs order in favour of Bruno and in
    its place order that Hryniak receive his costs of Brunos summary judgment
    motion, to be reserved to the trial judge. This court ordered that affidavits
    and cross-examinations on the affidavits used on the summary judgment motion
    may be used at trial in the same manner as examinations for discovery. A significant
    amount of the costs incurred will serve to reduce the costs of bringing the
    action to trial. It is difficult, therefore, for this court to carry out a
    proper quantification of the costs of the motion. Hryniak has not filed
    materials in support of his request that costs be fixed that could assist this
    court in making such a determination. The trial judge will be in a better
    position to assess these costs in the light of the steps necessarily taken to
    bring the case to trial and the results at trial.

[38]

Since
    Brunos motion failed against all three defendants, we set aside the motion
    judges
Sanderson
order in respect of the costs of the Bruno motion. The
Sanderson
order reduced Brunos obligation to pay the costs awarded to
    Cassels Brock and to Peebles by $21,212.27 and $4,545.45 respectively. Bruno is
    now responsible for payment of these amounts. Hryniaks obligations to Cassels
    Brock and Peebles are reduced accordingly.

[39]

In
    awarding costs of the appeals, we see no reason to depart from the general rule
    that costs follow the event.  We would not, however, award the Mauldin group
    its costs on a substantial indemnity scale. Hryniak raised a number of serious
    and important issues surrounding the interpretation of Rule 20 that warranted
    consideration by this court. As a result, we award the Mauldin group the costs
    of the appeal on a partial indemnity scale. We consider a reasonable award, in
    the circumstances, to be $32,000, inclusive of disbursements and applicable
    taxes. We also award Hryniak his costs of his appeal from the order for summary
    judgment obtained by Bruno, fixed in the amount of $32,000, inclusive of
    disbursements and applicable taxes.

W.K. Winkler C.J.O.

John Laskin J.A.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McLean v. Raywal Limited Partnership, 2013 ONCA 312

DATE: 202130509

DOCKET: C54872

Rosenberg, Rouleau and Pepall JJ.A.

BETWEEN

Natalie McLean

Plaintiff (Respondent)

and

The Raywal Limited Partnership and 2037629
    Ontario Inc.

Defendants (Appellants)

Ronald J. Robinson, for the appellants

Kevin Fox, for the respondent

Heard: May 9, 2013

On appeal from the judgment of Justice Kevin Whitaker of
    the Superior Court of Justice, dated December 9, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The finding that there was no consideration was a finding of fact. We
    have not been persuaded that there was any palpable or overriding error.

[2]

However, we do agree with the appellant that the trial judge erred in
    respect of mitigation. On-going litigation is only one factor to be considered
    in refusing to accept a return to work. There was nothing else on the record that
    would justify the respondents refusal to accept the recall. There was no
    evidence of a poisoned work place or anything of that nature.

[3]

Promissory estoppel was not raised at trial and so the necessary
    findings were never made by the trial judge. We would not permit the appellant
    to raise that issue for the first time on appeal.

[4]

Accordingly, the appeal is allowed in part and the notice period reduced
    to 8 months.  The respondent is entitled to her costs of the appeal fixed at
    $6000 inclusive of HST and disbursements.