From: DAVID CHEIFETZ <davidcheifetz@rogers.com>
To: Barbara Legate <blegate@legate.ca>
obligations@uwo.ca
Date: 22/06/2010 15:18:35 UTC
Subject: Re: ODG - Liebig v Guelph General et al Ont CA

Barb,
 
The decision also
 
1.  isn't going to be any sort of precedent for any other case - paras. 16 and 17; and.
 
2.  correctly understood, isn't even a precedent for or against the ultimate decisions next time somebody attempts to argue that there should be no actionable duty in respect of injury sustained, before birth, by an infant who is born alive.
 
The least of the reasons for that is para. 17, and the first part of the first sentence of para. 18, both of which I should have included in the earlier message:
 
[17]          It is undesirable for us to do so since all that we have before us is a sparse record consisting only of the pleadings in what, in law, amounts to a routine case easily decided on the basis of a well-established principle.
 
[18]          Our refusal to engage in making the kind of sweeping statements requested by the parties ...
 
It seems to me, with respect, that while the result isn't  pyrrhic for you - you will get costs, I trust - and the CMPA refusal was (well, except for the fact of the lawyers' billings, but we don't have to go there); nonetheless, it's still a Shakespearean sound and fury consequence for you. There's this. You've no guarantee that the law won't change in some way harmful to your client before the trial, perhaps on a motion with a better record. I concede that that's unlikely but, then, even the House of Lords recently agreed that one should never say never.
 
Reasonable people can and will differ, I'm sure.
 
Cheers,
 
 
 
 
 
 
 
 

 


From: DAVID CHEIFETZ <davidcheifetz@rogers.com>
To: Barbara Legate <blegate@legate.ca>; obligations@uwo.ca
Sent: Tue, June 22, 2010 9:14:09 AM
Subject: Re: Liebig v Guelph General et al Ont CA

Barb:
 
In this particular case, on the facts of this case paras. 14-16, and other places. But, the ONCA specifically said there might be cases were a fetus born alive cannot sue in Ontario.
 

[14]          We recognize that, in the future, the reasoning in Bovingdon and Paxton may be brought to bear in other cases involving post-conception negligence.  Indeed, in written and oral argument, counsel ventured opinions on a wide range of issues and possible scenarios extending well beyond the narrow compass of the facts of this case.

[15]          However, in our view, it is neither necessary nor desirable for this court in this case to attempt to set out comprehensively the duties owed and the potential liability of heath care providers in relation to all manner of injuries to infants arising from negligence before birth.

[16]          It is unnecessary as the facts of this case fall within the familiar and well-established category of labour and delivery cases where it has never been seriously questioned that negligent health care providers are liable.  As we can decide this case on the basis of this body of case law, we need not venture into less familiar territory or speculate as to how the law might evolve with respect to other scenarios.

You got what you need. Congrats. OTLA didn't get the general declration it wanted. On the other hand, the CMPA didn't get what it seemingly wanted, in the specific or the general.
 
Cheers,
 
David
 

From: Barbara Legate <blegate@legate.ca>
To: obligations@uwo.ca
Sent: Tue, June 22, 2010 8:13:31 AM
Subject: Liebig v Guelph General et al Ont CA

Fetus born alive can still sue in Ontario . Unanimous panel of 5, including author of Paxton v Ramji (accutane case) and Bovingdon (clomid case) was on the panel.

http://www.ontariocourts.on.ca/decisions/2010/june/2010ONCA0450.htm

No Cooper-Anns analysis needed for a “garden variety” claim.

Cheers

Barb

 

 




From: Barbara Legate <blegate@legate.ca>
To: obligations@uwo.ca
Sent: Tue, June 22, 2010 8:13:31 AM
Subject: Liebig v Guelph General et al Ont CA

Fetus born alive can still sue in Ontario . Unanimous panel of 5, including author of Paxton v Ramji (accutane case) and Bovingdon (clomid case) was on the panel.

http://www.ontariocourts.on.ca/decisions/2010/june/2010ONCA0450.htm

No Cooper-Anns analysis needed for a “garden variety” claim.

Cheers

Barb