The Lawyers Weekly - December 9, 2011

relation to their disclosure obligations was unacceptable and disrespectful of the court, and much of the failure to produce or the delay in producing was unexplained, the conduct had not reached such an egregious level as to justify the striking of their pleadings. As a result, the appropriate remedy was an order for costs and another order for production with strict deadlines. The father had complied with his minimum disclosure obligations, but more fulsome disclosure was warranted.

Spettigue v. Varcoe, [2011] O.J. No.
4917, Ont. S.C.J., Chappel J., Nov. 7/11.
Digest No. 3130-010 (Approx. 24 pp.)
HEALTH LAW
NEGLIGENCE – Defendant oph-
thalmologist was 60 per cent liable for
loss of vision in plaintiff’s eye from
detached retina.

Action for damages for medical malpractice. Plaintiff visited defendant, his ophthalmologist, complaining of an acute loss of vision in part of his visual field. Defendant was unable to find a detachment, tear or hole in plaintiff’s retina and did not find any other cause for the loss of vision. He referred plaintiff back to his family physician for a possible arterial occlusion and told him to return to him in six weeks. Within two days, plaintiff suffered a total loss of vision in his left eye. Plaintiff took no steps to deal with the loss of vision in his eye until he returned to see defendant again six weeks later. He was subsequently diagnosed with a detached retina. His retina was ultimately reattached, but plaintiff suffered a serious loss of vision in the eye.

HELD: Action allowed in part. Defendant did not meet the standard of care of a reasonable and prudent ophthalmic specialist with respect to his follow-up on the possible differential diagnosis of a retinal detachment. There was evidence supporting the differential diagnosis. Defendant should have insisted upon a follow-up on the possible retinal detachment. His failure to meet the standard of care was responsible for plaintiff’s blindness. Had he followed up on the retinal detachment, the chances of complete reattachment would have been substantially increased. Plaintiff was 40 per cent contributorily negligent for failing to seek immediate medical attention when he suffered the total loss of vision.

Bennett v. Landecker, [2011] O.J. No.
4874, Ont. S.C.J., Gilmore J., Nov. 1/11.
Digest No. 3130-011 (Approx. 19 pp.)

injunction. The evidence raised no serious question to be tried concerning the validity of the mortgages. While B should not have acted for NH Inc., his retainer did not affect the validity of the mortgages. There was no evidence that plaintiffs were given inadequate advice when they entered into the mortgages. There was nothing that would credibly support an allegation of negligence or bad faith. Plaintiffs failed to show that they would suffer irreparable harm if the injunction was not granted. If their action turned out to have merit, they could be compensated in damages. The contention that plaintiffs could redeem the mortgages if they had possession of the property was not plausible. Defendants have still not been able to enforce their contractual rights four years after issuing the statement of claim. The balance of convenience strongly favoured defendants.

Duffin v. Norina Holdings Inc., [2011]
O.J. No. 4843, Ont. S.C.J., Ramsay J., Oct.
31/11. Digest No. 3130-012 (Approx. 7 pp.)

fees were in fact paid within the grace period, but they were paid by an agent who was not at the time the authorized correspondent of record in the Patent Office. The fees paid were subsequently returned.

HELD: Appeal dismissed. The Patent Office could only deal with applicant’s authorized correspondent. An authorized correspondent only became so when the required documents were filed in the Patent Office. The acceptance of maintenance fees, whether within or outside the reinstatement period, from someone other than applicant’s authorized correspondent did not reinstate a patent application. The Patent Office’s acceptance of those fees did not create rights and its return of those fees did not extinguish rights.

Excelsior Medical Corp. v. Canada (Attorney General), [2011] F.C.J. No. 1534, F.C.A., per Pelletier J.A. (Noël and Layden-Stevenson JJ.A. concurring), Nov. 3/11. Digest No. 3130-014 (Approx. 4 pp.)

INSURANCE
LABOUR RELATIONS
INJUNCTIONS

INTERLOCUTORY INJUNCTIONS
– Plaintiffs not entitled to interlocutory
injunctions to stay enforcement of four
mortgages.

Motion by plaintiffs for an interlocutory injunction to stay the enforcement of four mortgages. Plaintiffs WD and KD were a married couple who controlled plaintiff corporations. They retained B as their lawyer in connection with arranging mortgages on the family farm and two subdivision properties. Defendant NH Inc. advanced the moneys. The mortgages had been in default more or less since their inceptions in 2003 and 2005 respectively. About $3 million was owed. In November 2007 B accepted NH Inc.’s retainer to enforce the mortgages.

HELD: Motion dismissed. Plaintiffs did not meet the test for an interlocutory

SUBROGATION – Appellants’ agreement to insure four barges chartered from respondent did not provide it with tort immunity for damage caused to the barges.

Appeal from dismissal of an appeal from an arbitration ruling. Appellant agreed to obtain insurance on four barges it chartered from respondent, as per the terms of the charter party. The barges were returned in a damaged condition. Respondent repaired three of the four barges at its own expense and made an insurance claim. Appellant’s insurer agreed to pay $54,000. Appellant accepted the assessment but respondent did not and sought recovery from appellant. The parties agreed to arbitrate the issue of appellant’s liability for damages not covered by insurance. The arbitrator found that appellant was liable for the $650,000 required to cover the costs of repair. Appellant’s appeal to the Supreme Court was dismissed.

HELD: Appeal dismissed. Appellant’s insurance covenant ran to the benefit of respondent and did not shift the risk of damages to the barges to respondent. Permitting respondent to recover did not deprive appellant of any benefit of its insurance. The line of Supreme Court of Canada cases related to subrogation did not support appellant’s theory of tort immunity. The cases had no application where appellant, as the party which covenanted to insure, sought shelter behind the insurance in denying responsibility for damage caused by its own acts.

Lafarge Canada Inc. v. JJM Construction Ltd., [2011] B.C.J. No. 2114, B.C.C.A., per Frankel J.A. (Rowles and Tysoe JJ.A. concurring), Nov. 9/11. Digest No. 3130-013 (Approx. 14 pp.)

JUDICIAL REVIEW – Assumption by arbitration board that collective agreement made a termination meeting mandatory in all circumstances was unreasonable.

Appeal from the dismissal of appellant
employer’s application for judicial review of
an arbitration award. The grievor was diag-
nosed with multiple sclerosis in 2002. In
2004 her medical condition deteriorated
further rendering her unable to work. By
2006 the griever had relapsed and was
incapacitated. The grievor was terminated
in March 2007 due to non-culpable absen-
teeism. The union filed a grievance. The
arbitration board held that although the
termination was justified, the employer had
breached the collective agreement through
a failure to hold a disciplinary hearing prior
to termination and the non-occurrence of a
mandatory meeting between the grievor
and a union representative. The grievor was
reinstated and awarded $2,000 to compen-
sate for the insensitive conduct of the
employer. The reviewing judge found the
decision reasonable.

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INTELLECTUAL PROPERTY

PATENTS – Acceptance of maintenance fees by Patent Office from someone other than appellants’ authorized correspondent did not reinstate patent application.

Appeal for the dismissal of an application for judicial review of a determination by the Patent Office that appellant’s patent application was dead by reason of the failure by appellant’s authorized correspondent to pay the maintenance fees before the end of the grace period. The maintenance

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