The Uncertainty Behind Ontario's Limitation Periods

Cheesman et al v. Credit Valley Hospital et al, 2019 ONSC 4996, the Ontario Supreme Court of Justice provided guidance on some key evidentiary issues: 1) cross-examination of parties who have settled in multi-party litigation, and 2) the admissibility of PowerPoint and other demonstrative aids to facilitate expert testimony.

In this medical malpractice case, the plaintiff, Lorena Cheesman, had been admitted to hospital for treatment of an infection of the inner orbit of her eye. A series of complications ensued, and she left the hospital six months later with both her feet and nine of her fingers amputated. Ms. Cheeseman and her dependents sued her physicians, nurses and the hospital for medical malpractice. The physicians cross-claimed against the nurses, claiming that if there was a breach of the applicable standard of care, liability should be apportioned to the nurses.

A few weeks prior to trial, the plaintiffs settled with the defendant nurses and hospital, but not the physicians. All parties agreed that if the physicians were found liable, liability between the nurses and the physicians would need to be apportioned, notwithstanding the settlement.

Right to cross-examine nurses granted despite settlement

The settlement with the nurses—but not the physicians—raised thorny evidentiary and procedural issues: as a result of the settlement, the nurses would not be appearing at trial unless someone called them as witnesses. However, it was not in the plaintiffs' interests to call them because this would allow the physicians to cross-examine them, and potentially reduce the proportion the plaintiffs could recovery against the physicians. However, if the physicians called the nurses, then they would be generally limited to examination-in-chief (and not cross-examination). The physicians therefore brought a motion for an order entitling them to cross-examine any of the nurses at trial, regardless of who called them as witnesses.

The motion was successful. The court observed that the jurisprudence has recognized that settlements with some (but not all) defendants, could create procedural unfairness for the non-settling defendants. Techniques to safeguard against such unfairness included the right for non-settling defendants to cross-examine settling defendants. However, to balance the interests of both the physicians and the plaintiffs, the court also extended the right for cross-examination to the plaintiffs. It held that limiting the...