Karen N. Vigmond

The appellant sought statutory accident benefits after suffering a spinal cord hemorrhage and paraplegia following a stressful incident involving aggressive driving by motorcyclists and her driver.

The Licence Appeal Tribunal denied benefits, finding the incident did not meet the causation test for an 'accident' under the Statutory Accident Benefits Schedule.

On appeal and judicial review, the Divisional Court quashed the decision, finding the Tribunal's analysis of the expert medical evidence unreasonable and its application of the intervening cause and dominant feature tests legally flawed.

The matter was remitted for a fresh hearing.

Following a five-day jury trial where the plaintiffs were awarded a net judgment of $18,000, the court addressed the parties' submissions on pre-judgment interest and costs.

The plaintiffs sought approximately $114,000 in partial indemnity costs plus disbursements, while the defendant argued against any costs award, contending the recovery fell within Small Claims or Simplified Rules jurisdiction, and sought costs for abandoned claims.

The court found that both parties' litigation strategies were inconsistent with the trial outcome, particularly noting the defendant's "no liability" stance and lack of a Rule 49 offer.

The court awarded the plaintiffs $50,000 in costs plus HST and $18,677.42 in disbursements, emphasizing that a defendant's failure to realistically assess risk can lead to a costs award even for a low judgment.

The defendant's request for costs on abandoned claims was denied.

In a medical malpractice action, the defendant brought a motion to disqualify the plaintiffs' expert epidemiologist, Dr. Michael Freeman.

The court granted the motion, finding that Dr. Freeman lacked specialized knowledge in the specific medical areas (metabolics and neurology) relevant to the causation question.

His "comparative risk" methodology was deemed outside the mainstream study of epidemiology for specific causation, and his reports indicated a lack of objectivity by primarily critiquing other experts rather than offering independent analysis within his own expertise.

The court also noted that his proposed evidence was not necessary, as the plaintiffs' other expert covered the same points.

The defendant in a medical malpractice action brought a motion at the outset of trial to strike the plaintiffs' jury notice.

The defendant argued that the complex scientific evidence relating to the minor plaintiff's rare metabolic disorder and the issue of causation made the case unsuitable for a jury.

Applying the principles from Kempf v. Nguyen, the court declined to strike the jury notice prior to trial, opting instead for the preferred 'wait and see' approach.

The motion was dismissed with leave to renew after the evidence is completed.