Morris + Stoltz + Evans LLP

Kelly Hayden

hayden@mselaw.ca

Direct line: 416.945.1955

Kelly’s developing practice encompasses a broad range of patient advocacy and health litigation. She has years of experience on complex medical malpractice matters, including cases involving obstetrical injuries, surgical complications, delayed or missed diagnoses, catastrophic brain injuries and privacy breaches. Kelly spent her first few years of practice at Lenczner Slaght LLP, where she acted on behalf of physicians who had been sued for medical malpractice or subject to complaints at the College of Physicians and Surgeons of Ontario. Kelly now acts for patients pursuing claims against physicians, hospitals, nurses and other healthcare professionals. Her experience representing physicians provides her with a unique perspective that assists her in securing strategic advantage for her clients.

Kelly also has extensive experience in public law and professional regulation, acting on behalf of members as well as various Colleges and regulatory bodies as investigation and prosecution counsel. Kelly has appeared before the Court of Appeal of Ontario, the Superior Court of Justice and a number of statutory tribunals. In 2021, Kelly has also brought her experience to the classroom, serving as an instructor in Administrative and Regulatory Law for Ryerson Faculty of Law’s inaugural first-year class. She has also led seminars in medical ethics for the University of Toronto Faculty of Medicine. While at law school, Kelly represented inmates as part of the Prison Law Program and sat on the Executive of the Sexual Health Resource Centre.

Kelly has a reputation for delivering advice and arguments in a straightforward and no-nonsense manner, inspiring confidence both in and out of the courtroom. Her ability to drill down on key issues and think strategically makes her an effective advocate, whether representing clients at trial or through negotiating settlements.

• HIGHLIGHTED CASES

  • Cha v Boutcher: Counsel to defendant physician in a trial involving allegations of surgical negligence.
  • GC v Jugenburg: Counsel to a plastic surgeon in a proposed class action relating to alleged privacy breaches, as well as in relation to a discipline hearing for professional misconduct.
  • Law Society of Ontario v Sorrenti: Counsel to the Law Society of Ontario in an application to have a trustee appointed over a Lawyer’s mortgage administration practice.
  • Mazzucco v Herer: Counsel to the defendant physicians in a jury trial of a complex medical malpractice action relating to a stroke following childbirth. Includes important interim ruling relating to deductibility of disability benefit.
  • College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v Yatwah Cheung: Counsel to the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario in a contested discipline hearing involving allegations of false advertising and making claims to patients not supported by reasonable professional opinion.
  • Faas v Centre for Addiction and Mental Health Foundation: Counsel to the respondent Centre for Addiction and Mental Health Foundation in an application and appeal by a donor to have an investigation conducted by the Public Guardian and Trustee into how the Foundation had used his donation. The Foundation was successful in resisting the relief sought at the application stage, and in having that decision upheld at the Court of Appeal for Ontario.
  • College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v George Li: Counsel to the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario in a contested discipline hearing involving allegations of fraud. An appeal was commenced by the member which was successfully dismissed for delay by the College. The dismissal was upheld at the Divisional Court, and leave to appeal the Divisional Court’s decision to the Court of Appeal was denied.
  • Warwaruk v Jones-Carter: Counsel to defendant physician in a trial involving allegations of negligence in management of shoulder dystocia. Decision includes important consideration of the causation principles applicable to medical malpractice actions generally.

Ken Morris

morris@mselaw.ca

Direct line: 416.862.8320

Ken acts exclusively for people who have suffered medical negligence. He helps patients to successfully pursue claims against doctors, nurses, hospitals, hospital employees, clinics and other health care institutions in Canada. Based on his track record at trial, Ken is frequently retained on complex or contentious malpractice litigation matters by other lawyers to act as co-counsel to take these cases to trial.
Ken has repeatedly been voted by his peers as a leading lawyer in the area of medical negligence in the Canadian Legal Lexpert Directory ®. Ken is diligently building a reputation within the medical negligence arena in Canada as a dependable lawyer, trial counsel, negotiator and personal legal advisor with a rare sense of reality. Regardless of the matter under review, Ken provides clients and other lawyers who may engage his services with practical strategic options to achieve the best outcome.

Ken has focused on medical malpractice actions since 2003. He has been successful at trial or negotiated settlement of lawsuits in most areas of medicine including:

• Obstetrics and gynaecology
• Neonatology (care of the newborn)
• Neurosurgery
• Neurology
• Orthopaedic surgery
• Ophthalmology (including retinal surgery, laser surgery, cataract surgery)
• Emergency care
• Injuries due to Trauma
• General surgery
• Cosmetic surgery
• Plastic surgery
• Prescription medication errors
• Oncology (involving the misdiagnosis and negligent treatment of cancer)

In the earlier years of his practice, Ken worked at Canada’s first national law firm McCarthy Tetrault LLP defending doctors who had been sued for medical malpractice. This experience helps him strategize to position clients to their greatest advantage and achieve their best outcome.

• SOME RECENT CASES *

  • As trial counsel in Jesperson v. Karas  2019 ONSC 5841 ® obtained judgment in the amount of $5,267,784.00 for a dentist who was unable to continue his practice due to the negligence of an ophthalmologist in performing radial keratotomy surgery.
  • Obtained $5,000,000.00 settlement for a 55 year old man who fell in hospital and suffered a severe brain injury;
  • Obtained substantial settlement for a 49 year old man who lost his leg above the knee;
  • Obtained major settlement for the family of a woman who died due to a failure to properly diagnose and treat her breast cancer;
  • As co-counsel at a jury trial obtained major settlement before the end of trial for a client who lost all four limbs;
  • Obtained significant settlement for a 68 year old man who suffered acute kidney injury due to delayed diagnosis and treatment of his obstructive nephropathy;
  • As co-counsel obtained at mediation a significant settlement for a young man and the young man’s family for permanent brain and kidney injuries he suffered as a newborn;
  • Obtained substantial settlement for a client who suffered serious neurological injuries due to the failure to properly diagnose and treat complications he suffered following spinal surgery;

Before becoming a lawyer, Ken was selected as an All-Canadian in both basketball and academics at University of British Columbia. After his university career he played basketball professionally in Europe for two years. His competitiveness and enthusiasm for what he does now benefit patients and co-counsel who may be faced with a difficult fight against well-funded health care defendants.

* Past results obtained are not necessarily indicators of future results and the amount recovered and other litigation outcomes will vary according to the facts in individual cases.

Lori Stoltz

stoltz@mselaw.ca

Direct line: 416.862.1078

For over 25 years Lori has acted for patients, a broad range of health care providers, advocacy organizations and decision-makers across the Canadian health care delivery system. Lori brings a broad perspective to her work, careful attention to the needs of her clients and a passion for pursuing legal issues and cases that help to make access to health care safer, more accessible and more accountable.

Lori’s diverse engagements on health-related matters have included:

• Acting for patients and their families in medical negligence claims against physicians and other health care providers. Lori’s experience includes injuries arising from: delayed diagnosis of cancer and other serious conditions; emergency care; failures relating to HIV testing and counselling; gynecological surgery and other reproductive health issues; labour and delivery; medication errors; orthopedic surgery; and post-operative infection.
• Career-long engagement on public health matters, including as co-author of Public Health Law and Practice in Ontario: The Health Protection and Promotion Act (J. Speakman, L. Stoltz and R. Blake). During the COVID-19 pandemic, Lori advised public health authorities across Ontario and others including Ontario’s Long-Term Care COVID-19 Commission.
• Assisting patients and health system advocates, health care providers and government agencies navigate the complex legislative framework that governs health care delivery, the public health system and clinical research
• Acting for clinical researchers, research organizations and others to protect the safety of research subjects
• Advising the Honourable A. Anne McLellan, former federal Minister of Health, as her Senior Policy Advisor on Medicare reform and other matters
• Advising UNAIDS (the Joint United Nations Programme on HIV/AIDS) on the legal and human rights issues presented by HIV testing of UN peacekeeping forces
• Serving as Chair of the Health Protection Appeal Board (now part of the Health Services Appeal and Review Board)
• Early involvement in litigation arising from contamination of the Canadian blood supply with HIV and Hepatitis C, and representing patients and their families before the federal Commission of Inquiry on the Blood System in Canada

Lori has experience before administrative tribunals (including the Health Professions Appeal and Review Board, Health Services Appeal and Review Board and Consent and Capacity Board), all levels of Ontario courts and the Supreme Court of Canada, and with class proceedings. She is a member of the Advisory Committee to the Master of Science in Healthcare Quality Program at Queen’s University, Kingston, Ontario, and of the Advocates’ Circle of the Canadian HIV/AIDS Legal Network.

Past community engagement includes serving as a director for Hassle Free Clinic and COTA (Community Occupational Therapists and Associates), and as a director and President of the Canadian HIV/AIDS Legal Network.

HIGHLIGHTS

• Medical negligence

  • Lori’s experience acting for patients and their families in medical negligence claims against physicians and other health care providers includes injuries arising from: delayed diagnosis of cancer and other serious conditions; emergency care; failures relating to HIV testing and counselling; gynecological surgery and other reproductive health issues; labour and delivery; medication errors; orthopedic surgery; and post-operative infection.
  • Lori was counsel to an infant and family in a successful medical negligence case arising from the infant’s avoidable HIV infection following physician failure to provide prenatal HIV testing and counselling.
  • Lori was counsel to the plaintiffs in a medical negligence trial arising from gynecological surgery. The case succeeded on the basis that the surgeon had proceeded without consent.

• Public health matters, including HIV and COVID-19

  • Lori has had a career-long interest in, and engagement with, public health laws and practice. She is a co-author of Public Health Law and Practice in Ontario: The Health Protection and Promotion Act: Co-authored this 2008 text with Jane Speakman and Rod Blake, described as a “ground-breaking treatise” of public health law in Ontario by Dr. Sheela Basrur, former Chief Medical Officer of Health for Ontario, and former Chair of the Health Protection Appeal and Review Board (now part of the Health Services Appeal and Review Board), responsible for ruling on appeals of orders issued by public health authorities under Ontario’s Health Protection and Promotion Act.
  • COVID-19: During the COVID-19 pandemic, Lori advised public health authorities across Ontario and others including Ontario’s Long-Term Care COVID-19 Commission.
  • Simons et al. v. Minister of Public Safety et al.: Lori was counsel for a former prisoner of the federal penitentiary system together with the Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network, Canadian Aboriginal AIDS Network and CATIE, in an ongoing Charter challenge against the federal government for failing to provide inmates of federal penitentiaries with access to sterile injection equipment as essential health care to protect against HIV and Hepatitis C transmission and other health problems.
  • Olivieri v. Commission of the European Communities et al.: Lori was counsel to a clinical researcher and scientist in an application for judicial review before the European Court of Justice to challenge the licensing of a drug as based on inaccurate and incomplete information from the manufacturer, the first clinical researcher to succeed in obtaining standing in such a matter in Europe.
  • UNAIDS (the Joint United Nations Programme on HIV/AIDS): Lori prepared the analysis of legal and human rights issues used by the UNAIDS Expert Panel on HIV Testing in UN Peacekeeping Operations to inform the UN’s HIV testing policy for peacekeeping forces.
  • AIDS2006 Toronto Local Host: Lori was counsel to organizers of the 16^th International AIDS Conference in Toronto, successfully challenging discriminatory self-disclosure requirements in Citizenship and Immigration Canada procedures affecting people living with HIV/AIDS and other communicable and chronic illnesses.
  • R. v. Cuerrier: Lori was counsel to the Canadian HIV/AIDS Legal Network as an intervenor with standing before the Supreme Court of Canada in the first Supreme Court case to consider criminal responsibility arising from alleged non-disclosure of HIV status between sexual partners.

• Patient safety and accountability in health care

  • Olivieri v. Commission of the European Communities et al.: Lori was counsel to a clinical researcher and scientist in an application for judicial review before the European Court of Justice to challenge the licensing of a drug as based on inaccurate and incomplete information from the manufacturer. This was the first clinical researcher to succeed in obtaining standing in such a matter in Europe.
  • Federal Commission of Inquiry into the Contamination of Canada’s Blood Supply with HIV/AIDS and Hepatitis (the “Krever Commission”): Lori was counsel to the HIV T-Group (Blood Transfused) before the Krever Commission, and in related applications for judicial review seeking to prevent the Commissioner from publishing his report. The HIV-T Group’s position at the inquiry was that the federal government had failed to regulate blood as a drug under Canada’s Food and Drugs Act, an important focus of the Commissioner’s final findings and recommendations.

• Access to health care; Health and human rights

  • Simons et al. v. Minister of Public Safety et al.: Lori was counsel for a former prisoner of the federal penitentiary system together with the Canadian HIV/AIDS Legal Network, Prisoners with HIV/AIDS Support Action Network, Canadian Aboriginal AIDS Network and CATIE, in an ongoing Charter challenge against the federal government for failing to provide inmates of federal penitentiaries with access to sterile injection equipment as essential health care to protect against HIV and Hepatitis C transmission and other health problems.
  • Lori has acted for patients seeking access to health care, including appeals under Ontario’s Health Insurance Act to challenge refusals to fund out-of-country treatment.

• Health policy, regulation & governance of health care and research

  • Lori advises patients, health care providers, health research organizations and other health system participants to assist them in navigating the complex legal framework that governs health care delivery and clinical research involving patients, and to advocate for and implement meaningful system changes on a wide variety of matters.
  • Lori was a member of expert task groups engaged by the Health Professions Regulatory Advisory Council to undertake a comprehensive review of psychotherapy and make recommendations for the regulation of psychotherapy in Ontario and to consider the need for an expanded scope of practice for nurse practitioners in Ontario.
  • Lori was counsel to a community-based hospital and two different medical staff associations in response to directions issued by Ontario’s Health Services Restructuring Commission. In one case, the mandate included negotiating the transfer of all hospital programs and services.
  • Lori was counsel to a coalition of major national associations of health care providers, to provide an opinion on constitutional and other legal options to mandate national standards in the delivery of health care in Canada.

• Privacy in health

  • Lori advises clients, including patients, health care providers and other health system participants on their rights and responsibilities to safeguard the privacy of personal health information and related matters.
  • Lori has represented patients and health care providers in actions for breach of confidence and in proceedings before Ontario’s Information and Privacy Commissioner.

• Consent and capacity

  • Lori is a strong advocates of the right of patients to exercise self-determination in medical decision-making, including acting for clients before the Consent and Capacity Board.
  • Lori was counsel to the plaintiffs in a medical negligence trial arising from gynecological surgery. The case succeeded on the basis that the surgeon had proceeded without consent.

• More

  • Charron v. CRL: Lori was counsel to the plaintiffs in a personal injury action against a Cuban resort and Ontario tour companies arising out of a death while scuba-diving. The defendants argued that Ontario did not have jurisdiction over the plaintiffs’ claim. The plaintiffs succeeded in arguing that the Ontario courts could and should take jurisdiction in the matter. The Supreme Court of Canada’s decision released in 2012 is a leading authority on this issue.

Jillian Evans

evans@mselaw.ca

Direct line: 416.862.8171

Jillian has committed nearly twenty years to improving and increasing Canadians’ access to safe and effective health care.  She has established herself as a trusted and respected advocate for patients and their families in litigation and related proceedings against physicians, nurses, hospitals, pharmacists, dentists and other health sector organizations, and has extensive experience in medical injuries arising from:

• surgical error
• orthopedic injuries
• transient ischemic attacks
• neurological injury
• birthing injuries
• late cancer diagnosis
• misread imaging
• pathology error
• medication overdose
• prescription dispensing error
• anesthesia injuries
• laparoscopic surgery

Jillian has been voted by her peers as a leading lawyer in the area of medical negligence in the Canadian Legal Lexpert Directory (2019,2020, 2021 and 2022), and is listed in the 2021 and 2022 Best Lawyers guide. She also sits on the College of Midwives of Ontario’s Registration and Inquiries, Complaints and Reports Committees. Her clients and co-counsel benefit from her responsiveness and perseverance, as well as from her ability to skillfully distill complex medical information in order to best advance her clients’ interests. Jillian’s familiarity with all facets of the health care system also equips her to assist health care consumers on matters involving consent, privacy and access to care.

Jillian represents her clients in motions, trials and appeals at all levels of court, as well as in hearings, inquests and proceedings before the College of Physicians and Surgeons of Ontario, the Office of the Chief Coroner, the Health Professions Appeal and Review Board and the Health Services Appeal and Review Board.

As the past Chair of the Medical Malpractice Group of the Ontario Trial Lawyers Association and an instructor at the Lincoln Alexander School of Law, Jillian is a frequent lecturer and speaker on issues relating to patient rights, advocacy and the intersections between law and medicine for Osgoode’s School of Professional Development, the Ontario Bar Association, the Medico-Legal Society of Toronto and other legal and health sector stakeholders.

Most recently, Jillian has joined the federal Social Security Tribunal as part time member and adjudicator.

Jillian has developed a nuanced appreciation for the often overlapping legal, social, financial and personal needs of individuals and families affected by medical negligence.  She uses her skills in both advocacy and negotiation to achieve the best possible results for her clients, in or out of the courtroom.  A devoted proponent of our publicly funded health care system, Jillian’s long history of community involvement with organizations like Planned Parenthood Toronto, the John Howard Society of Ontario, Street Health Community Nursing and the Massey Centre for Women reflects her commitment to safeguarding and championing universal access to health care.

HIGHLIGHTED CASES*

• Rodrigues v. Altourshi (2022) – Jillian successfully moved to extend the deadline for serving a defendant physician in another jurisdiction.
• Spry v Southlake Regional Health Centre (2022) – Jillian successfully represented the plaintiff in this medical malpractice case in her efforts to bring a second defendant emergency room physician into the action more than two years after the attendance at issue.
• Vandenakker v. Yen (2021) – Jillian represented the plaintiff in resisting the defendant physician’s motion to have her action dismissed on the basis of an allegedly missed limitation period.
• Cooper v. Toronto (2020) – Jillian successfully moved to have Toronto Hydro, a corporation wholly owned by the existing defendant City of Toronto, added to the action on the basis of misnomer.
• Eichinger v. Vaidyanathan (2020): Jillian successfully preserved her client’s right to reference ‘similar fact evidence’ in her Statement of Claim in this action involving brachial plexus injuries sustained by the plaintiff during her birth.
• Campagiorni v. Bednar (2020): Jillian successfully defeated the defendant orthopedic surgeon’s motion for summary judgment on behalf of the plaintiff patient.
• Cooper v. Toronto (2019): Jillian successfully appealed a lower court’s refusal to add a new defendant to an existing action, arguing on the plaintiffs’ behalf that the proposed defendant’s involvement in the matters at issue was not reasonably discoverable any earlier.
• Simons v. Canada (2018): Jillian Evans and Lori Stoltz successfully resisted the Correctional Service of Canada’s motion for access to the applicants’ experts’ privileged file contents in this Charter litigation involving federal prisoners’ access to health care and harm reduction services.
• Way v. Ahmad (2017):  As trial counsel, Jillian obtained judgment for the family of a man who passed away following surgery due to untreated sleep apnea.
• C.P. v. Y.H. (2017):  Jillian successfully appealed a decision of the Inquiries, Complaints and Reports Committee of the CPSO, with the Health Professions Appeal and Review Board finding that the investigation into C.P.’s complaint had been inadequate and returning it to the Committee for further investigation.
• Rycroft v. Chen (2017): Jillian succeeded at trial on behalf of the family of a woman who passed away following an endoscopic procedure.
• Oakley v. Guirguis (2014) : Jillian defeated the defendant physician’s motion to dismiss the plaintiffs’ lawsuit on the grounds of an expiry of the limitation period, successfully arguing that Ms. Oakley’s statute of limitations did not start to run until she first learned of the alleged error.
• Frazer v. Haukioja (2008): Jillian was co-counsel at trial for a man who developed avascular necrosis and psychiatric injuries after an ankle fracture was left untreated by the defendant emergency physician. Damages of $1.8 million were awarded to the Plaintiffs at trial, which were upheld on appeal.
• Geddes v. Bloom (2008): Jillian was counsel for the plaintiff at trial in an action against a radiologist alleging a failure to diagnose a fractured jaw.
• Medeiros v. Bederman (2006): Jillian successfully obtained judgment for the plaintiff at trial against a plastic surgeon.
• As co-counsel in a historical institutional negligence action involving allegations of decades of physical and sexual abuse, Jillian assisted her clients in securing a substantial settlement.
• Jillian obtained settlement for the family of a young boy who died after an attendance at the emergency department failed to identify a foreign body in his windpipe.
• Jillian negotiated a significant settlement for the family of a man who passed away following a late diagnosis of prostate cancer.
• Jillian successfully resolved litigation on behalf of a man and his young daughters after their mother died as a result of a post-partum hemorrhage, obtaining a sizable settlement on the family’s behalf.

* Past results obtained are not necessarily indicators of future results and the amount recovered and other litigation outcomes will vary according to the facts in individual cases.