Tuesday, October 18, 2011


Madame Justice Karakatsanis of the Court of Appeal for Ontario is an excellent choice for appointment to the nation's highest court. I do not know her personally but I had the pleasure of arguing two cases before her - one a medical malpractice on a question of law motion brought by the defendant doctor and the other an application on a guns and gangs prosecution styled "Operation Flicker". On each occasion I was impressed by her ability to zero-in on the crux of the legal problem, her ability to ensure that counsel understood the point and to insert common-sense and compassion in her adjudication process.

In the medical malpractice matter I acted for the plaintiff who brought an action against a doctor and a hospital for breach of confidence and negligence based on the doctor's improper disclosure of the nature and type of medical procedures which the plaintiff underwent. Counsel for the defendant doctor brought a motion on the premise that since the doctor was not the plaintiff's doctor he owed her no duty of care and hence the plaintiff had no claim. Justice Karakatsanis pointed out that the action is based both in negligence and breach of confidence. She politely asked counsel for the doctor, "Are you suggesting to me that if I had surgery at TEGH and your client - a surgeon - found out what I had that he could tell the whole word because I do not have a doctor-patient relationship with him ?" Counsel for the doctor replied yes. Justice Karakatsanis proceeded to dismiss the doctor's motion with costs. No appeal was taken by the doctor.

In the guns and gangs case I was acting for an alleged gang member whom the immigration authorities and the Crown sought to deport to his homeland followng the proceedings. I brought an application before Justice Karakatsanis seeking a stay of the proceedings based on the Crown's improper disclosure of sensitive and confidential information regarding the client which had the potential to put his life at risk should he be deported to his homeland. Once again, Justice Karakatsanis recognized the seriousness of the issue, listened attentively to evidence I led in support of the application and fashioned a unique and pragmatic remedy. Althought she dismissed my application for a stay of proceedings she wrote a strong and comprehensive judgement in which she specifically recommended that the immigration authorities refrain from deporting my client.