Brian Albert Foster

The court considered costs following a jury trial where the plaintiff was awarded damages and prejudgment interest.

The defendants argued they were the successful parties and sought costs under Rule 49.10, claiming their offer to settle (inclusive of an OHIP subrogated claim) was more favourable than the judgment.

The court found the defendants' offer uncertain regarding the OHIP claim, thus not triggering Rule 49.10.

While the plaintiff was the successful party in proving negligence and damages, there was divided success as the defendants prevailed on a major causation issue.

Considering the plaintiff's unreasonable settlement expectations and the divided success, the court ordered each party to bear their own costs.

The plaintiff in a personal injury action moved to strike the defendants' jury notice, arguing complexity due to chronic pain claims and potential injustice.

The court dismissed the motion, finding that the case was not unusually complex and that juries are capable of assessing credibility in chronic pain cases, especially with proper judicial instruction on the reality of chronic pain as established by the Supreme Court of Canada.

The court also rejected the plaintiff's arguments that recent jury verdicts in chronic pain cases demonstrated inherent injustice or that the civil jury system was being inappropriately used by insurers.

A personal injury trial, which had been estimated to last 5-6 weeks, was declared a mistrial after 4.5 weeks due to grossly inaccurate trial duration estimates provided by counsel.

The court emphasized the critical importance of accurate estimates for the efficient administration of justice, juror experience, and access to justice for other litigants.

Despite repeated warnings and attempts to manage the schedule, the trial could not be completed within the confirmed timeframe.

The judge found that the pace of the trial, coupled with counsel's shifting strategies and "desperation" to conclude, made a fair and just completion impossible, necessitating the regrettable decision to declare a mistrial to prevent further waste and uphold the integrity of the justice system.

In this personal injury action, the plaintiff objected to the admissibility of defence surveillance video as substantive evidence during an ongoing civil jury trial.

The plaintiff argued that the video had low probative value, was potentially prejudicial, and that some portions were not disclosed in a timely manner under Rule 30.09.

The court dismissed the objection, finding the surveillance video prima facie relevant to the plaintiff's condition and abilities, and that its probative value was not outweighed by prejudicial effect.

The court granted leave for late disclosure under Rule 30.09, noting ample opportunity for review.

The ruling allowed the defendants to tender the video as substantive evidence, subject to specific qualifications regarding the exclusion of overly intrusive or misleading segments and directions on presentation to the jury.

The plaintiff in a personal injury action arising from a motor vehicle accident brought a preliminary motion to exclude photographs of vehicle damage at trial.

The plaintiff argued the photographs were irrelevant since liability was admitted, and that admitting them without expert biomechanical evidence would invite unguided speculation by the jury that minor vehicle damage equates to minor injury.

The court dismissed the motion, holding that the photographs were relevant to causation and admissible without expert evidence, as causation is a matter of common sense.

The court noted that a jury instruction would be given to clarify that serious injuries can still result from low-impact collisions.

In a personal injury action, the plaintiff objected to the defendants' attempt to introduce evidence and arguments suggesting that the plaintiff's receipt of collateral benefits was relevant to her motivation to work and her actual disability.

The court sustained the plaintiff's objection, ruling that such considerations were speculative and lacked relevance to the determination of disability.

The decision emphasized that while collateral benefits are relevant for calculating offsets, they should not be used to imply a lack of motivation to work or to undermine claims of disability.

In a personal injury action, the defendants objected to the plaintiff's proposed witness sequence, which intended to call a physiotherapist, Gloria Gilbert, as the first witness, followed by the plaintiff.

The defendants argued that the plaintiff should testify first to provide context for her subjective chronic pain claims.

The court dismissed the defendants' objection, allowing the plaintiff to call Ms. Gilbert first, provided the plaintiff excluded herself from the courtroom during Ms. Gilbert's testimony.

The court emphasized a litigant's right to present their case as counsel deems advisable, finding no compelling reason to interfere with the modest deviation from usual practice, especially since Ms. Gilbert was presented as a "participating expert" whose testimony would not inherently depend on the plaintiff's prior evidence.

The defendants moved for an order requiring the plaintiff in a motor vehicle accident action to attend additional defence medical examinations by a physiatrist and a psychiatrist.

The defendants argued the plaintiff’s condition had changed and that trial fairness required further examinations because the plaintiff’s experts had examined her multiple times.

The court reviewed the governing principles under s. 105 of the Courts of Justice Act and Rules 33.01–33.02 of the Rules of Civil Procedure regarding further defence medical examinations.

The court held that no material change in the plaintiff’s condition had been demonstrated and that the request largely amounted to an attempt to corroborate existing defence opinions.

Trial fairness did not require additional examinations, and the defendants had not provided sufficient evidentiary foundation to justify the order.