Darcy W. Romaine

The plaintiff was injured in a skiing accident and underwent a vocational assessment.

The defendant sought an order requiring the plaintiff to undergo a further assessment by a vocational assessor of its choosing.

The motion judge granted the order, and the Divisional Court upheld it.

On appeal, the Court of Appeal affirmed that section 105 of the Courts of Justice Act does not occupy the field, and the Superior Court retains inherent jurisdiction to order an assessment by someone who is not a 'health practitioner' to ensure fairness and justice between the parties.

In a personal injury action arising from a motor vehicle accident, the plaintiffs brought a motion to exclude surveillance evidence obtained by the defendant.

The defendant had disclosed a surveillance video from October 2012 well in advance of trial but failed to disclose additional surveillance from 2013 and 2014 until shortly before trial, contrary to an undertaking given at discovery.

The court held that although the defendant breached its disclosure obligations, the October 2012 surveillance could still be admitted as substantive evidence and for impeachment because it had been disclosed long before trial and both parties’ experts had reviewed it.

The later surveillance footage could not be relied upon by the defendant but remained available for the plaintiffs’ use.

Any potential prejudice could be addressed through supplemental expert reports or an adjournment.

The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).

The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.

The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.

Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.

However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.

Applicants brought an application challenging the validity of sections 3, 4, and 5 of the 2002 Minimum Maintenance Standards for Municipal Roadways under the Municipal Act, 2001, asserting that the regulation was ultra vires.

The challenge arose in the context of a personal injury action alleging negligent winter road maintenance.

After the Court of Appeal’s decision in Giuliani limited the scope of the regulation and the municipality withdrew reliance on it as a defence, the respondents moved to strike the application as moot.

The court held that no live controversy remained between the parties and declined to exercise discretion to hear the matter, emphasizing judicial economy and the limited relevance of the impugned provisions following amendments and appellate guidance.

The plaintiff, a cyclist with significant pre-existing psychological and cognitive vulnerabilities, was struck by a police cruiser while riding through a pedestrian crosswalk at night.

The court apportioned liability 60% to the defendant police officer and 40% to the plaintiff.

Applying the thin skull rule, the court found the collision exacerbated the plaintiff's pre-existing conditions and caused a mild traumatic brain injury, rendering him completely disabled and requiring 24/7 attendant care.

Total damages were assessed at over $5.2 million, reduced to $3,131,370 after accounting for contributory negligence.

The plaintiffs sought leave to appeal an interlocutory order compelling the plaintiff to attend a defence vocational assessment with a non-health practitioner.

The central issue was whether the court has inherent jurisdiction to order such an assessment independent of section 105 of the Courts of Justice Act.

The court found conflicting authorities on this issue and determined it was open to serious debate and of general importance to the profession.

Leave to appeal to the Divisional Court was granted.

The defendant organization moved to dismiss a personal injury action on the basis that the claim against it was commenced outside the applicable two‑year limitation period.

The plaintiffs had initially sued another party following a slip and fall at a fundraising skating event and later added the moving party after learning of its potential involvement through a third‑party claim.

The court considered the discoverability principles under s. 5 of the Limitations Act, 2002 and whether reasonable due diligence would have revealed the moving party’s role earlier.

The court found there was no trigger that would reasonably have alerted the plaintiffs to the moving party’s involvement in the ice rink setup prior to receiving the third‑party claim.

As a result, the limitation period had not expired and the action could proceed.

In a personal injury action arising from a skiing accident allegedly causing traumatic brain injury, the defendants sought an order compelling the plaintiff to undergo a vocational assessment by a non‑medical practitioner.

The plaintiff argued the court lacked jurisdiction under the Courts of Justice Act and the Rules of Civil Procedure to order such an assessment because the proposed assessor was not a "health practitioner" within the statutory definition.

The court held that, regardless of the statutory framework, the court may order a non‑medical vocational assessment where it is reasonably required and necessary to ensure fairness in the litigation.

Given the substantial claim for past and future income loss and the importance of assessing residual earning capacity, the requested assessment was found appropriate and not unfairly intrusive.

The motion was granted and the plaintiff was ordered to attend the vocational assessment.

The appellant appealed a motion judge's order dismissing a motion to transfer an application to the Divisional Court.

The underlying application sought a declaration that the Minimum Maintenance Standards regulation was ultra vires and invalid, arising from a motor vehicle accident tort action against a municipality.

The Divisional Court dismissed the appeal, finding that under section 8 of the Judicial Review Procedure Act, the motion judge had the discretion to retain jurisdiction over the application rather than transferring it, and that this discretion was exercised reasonably to facilitate judicial economy.

The municipal defendant sought leave to appeal an interlocutory order permitting the plaintiffs to examine a second municipal employee for discovery.

The underlying negligence action arose from a fatal motor vehicle accident allegedly caused by icy road conditions and inadequate road maintenance.

The motions judge had ordered the production of a patrol employee for discovery despite the municipality already producing a representative and while undertakings remained outstanding.

The court held that there was serious reason to doubt the correctness of the order because there was no evidence the first representative could not provide satisfactory answers through undertakings and the legal test for permitting multiple examinations may have been misapplied.

Given conflicting interpretations of Rule 31.03(4) of the Rules of Civil Procedure and the absence of appellate guidance, the issue was found to be of public importance.

The appellant was severely burned after tripping over cinder blocks and falling into a fire pit at a party hosted by tenants on a residential property.

The trial judge found the tenants and the appellant each 50% at fault but dismissed the action against the landlord, finding he owed no duty of care because the rental agreement relieved him of maintenance obligations.

The Court of Appeal allowed the appeal, holding that the landlord admitted to being an occupier in his pleadings and that the Landlord and Tenant Act imposes a non-waivable statutory duty on residential landlords to maintain the premises.

The landlord was found jointly and severally liable with the tenants for 50% of the appellant's damages.

The defendants appealed a jury verdict awarding the plaintiff $343,560 for injuries sustained in a motor vehicle accident.

The appellants argued the trial judge erred by refusing leave to call two experts, inadequately instructing the jury on future income loss, and that the general damages award was excessive.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's rulings.

The plaintiffs cross-appealed the costs award, arguing the trial judge misapprehended that trial preparation time was duplicated.

The Court of Appeal allowed the cross-appeal in part, adjusting the costs reduction for trial preparation.

The appellant slipped and fell on a grape in the produce department of a grocery store owned by the respondent.

A jury found the respondent had taken reasonable care and dismissed the action.

On appeal, the appellants argued the trial judge erred in instructing the jury on the standard of care and causation, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed the jury on the standard of reasonableness under the Occupiers' Liability Act, and that there was sufficient evidence of the respondent's floor maintenance program to support the jury's verdict.