Katelynn Drake

The defendant physician in a medical malpractice action moved to strike the jury notice due to trial delays caused by the COVID-19 pandemic.

The defendant argued that the 11-year delay and the stress of preparing for trial multiple times warranted proceeding by judge alone virtually.

The plaintiff opposed, citing significant physical and technological challenges with participating in a virtual trial due to his catastrophic spinal cord injuries.

The court dismissed the motion, finding the defendant failed to prove justice would be better served by dispensing with the jury, and adopted a 'wait and see' approach given the anticipated resumption of civil jury trials.

The defendant doctors appealed a Master's decision dismissing their motion to compel discovery answers and production of their initial lawyers' file concerning the plaintiff's capacity and whether a de facto litigation guardian existed.

The court found the Master erred in her relevancy and privilege analysis, particularly regarding the importance of counsel's opinion on capacity and the scope of a de facto litigation guardian under s. 7 of the Limitations Act, 2002.

The appeal was allowed in part, requiring the plaintiffs to produce a revised affidavit of documents and reattend examinations for discovery, with privilege waived for documents relevant to Mr. Wood's capacity and Mr. McQueen's dealings with the initial lawyers.

The defendant brought a threshold motion during jury deliberations in a motor vehicle accident trial.

The jury awarded the plaintiff damages for pain and suffering, out-of-pocket expenses, and future health care costs.

The court applied the three-part test from Meyer v. Bright and found that the plaintiff suffered a permanent serious impairment of an important physical function due to chronic pain.

The defendant's threshold motion was dismissed, and the jury's award was upheld subject to statutory deductibles and collateral benefit deductions.