Legal Malpractice in Real Estate Transactions – Not a Simple Matter Recently, in Bielanski v. Mundenchira, 2019 ONSC 1162 (CanLII), the Court addressed the issue of solicitor’s negligence (legal malpractice) arising out of a real estate transaction. In that case, issues arose after the initial owner (Bielanski) sought to divide his Mississauga property into two…
Discoverability and Professional Relationships Recently, in Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325, the Court of Appeal again addressed the discoverability doctrine within the scope of professional relationships. This decision is likely to have significant implications in cases involving professional negligence. The facts of the Presidential MSH Corporation (Presidential) case…
Important Court of Appeal Decision – Legal Malpractice Factual Background In 2007, Darren and Lillian Jarbeau (hereafter ‘Jarbeau’) purchased a new home in North Bay, built by Thermolith Homes, for $270,000.00. The home was a pre-fabricated structure built in Belgium and assembled on site. It leaked (due to improper water barrier installation), was defective and…
Limitations Extended Where A Dentist Denied Fault and Continued Work In Chelli-Greco v. Rizk, 2016 ONCA 489, the Court of Appeal upheld a Judge’s ruling that Cheli-Greco’s claim was not discovered until after she terminated her relationship with Dr. Rizk, such that her claim was not statute barred. In that case, Dr. Rizk was Chelli-Greco’s…
Continued Medical Treatment Triggers Discoverability Principal In a significant decision, the Court of Appeals held that the limitations period was tolled (or that the discoverability principal applied) where a patient suffered severe complications after surgery, but the doctor continued to treat to correct the complications. In Brown v. Baum, 2016 ONCA 325, Diana Brown suffered…
In any claim for personal injuries, the defendant is given the right to select a doctor to conduct a defence medical exam, often (erroneously) called an ‘independent’ medical exam. This right is provided to defendants by section 105 of the Courts of Justice Act, R.S.O. 1990. c. C.43 and Rule 33 of the Ontario Rules of Civil Procedure. Despite the passage of time, the prevalence of smart phones, the fact it is general practice in many jurisdictions, and the common law right to record your conversations, recording defence medical exams is not generally permitted in Ontario.
The first Ontario case to suggest that recording of medical examinations could be permitted was Bellamy v. Johnson, 1992 CanLii 7491 (On. Ca). In that case, the plaintiff’s request to record the defence medical was ultimately denied. In declining to endorse the routine recording of defence medical examinations, Doherty J.A. indicated (in his concurrence, later adopted by the Court as the legal test):
