Kevin Nearing

The plaintiffs commenced a tort action and an accident benefits action arising from a 2013 motor vehicle accident.

The actions were ordered to be tried together before a jury in April 2020, but the trial was suspended due to the COVID-19 pandemic.

Facing indefinite delays for civil jury trials, the plaintiffs moved to strike the jury notices.

The court granted leave to bring the motion and struck the jury notices, finding that the real and substantial prejudice caused by the delay outweighed the defendants' substantive right to a jury trial.

The court concluded that justice would be better served by proceeding to trial in a timely manner before a judge alone.

Following a nine‑week jury trial arising from a motor vehicle accident, the plaintiffs obtained a damages award substantially lower than the amount claimed.

The defendants relied on Rule 49.10(2) of the Rules of Civil Procedure and argued they were entitled to partial indemnity costs from the date of a pre‑trial offer to settle because the judgment was allegedly less favourable than their offer.

The court held that although the offer met the timing requirement, the offer’s treatment of prejudgment interest on a lump‑sum amount was ambiguous and incapable of precise calculation for mixed heads of damages attracting different statutory interest rates under the Courts of Justice Act.

Because the offer lacked sufficient certainty to trigger the Rule 49 cost consequences, the defendants failed to meet their burden under Rule 49.10(3).

Considering the Rule 57 factors and the circumstances of the litigation, the court awarded the plaintiffs their partial indemnity costs throughout the proceeding.

During a civil jury trial arising from a motor vehicle accident, the plaintiffs sought to exclude the testimony of a defence neuropsychologist regarding neuropsychological testing and symptom validity assessment.

The court applied the admissibility framework for expert evidence from R. v. Mohan and the two‑step reliability analysis from R. v. Abbey.

While the expert’s methodology raised concerns regarding cultural and linguistic validity of standardized tests and the absence of normative data for the plaintiff’s background, the court concluded the opinion met the threshold reliability for admissibility.

To preserve fairness and avoid improper commentary on credibility, the court permitted the expert to testify on testing methodology, behavioural observations, and differential diagnosis but prohibited opinions implying deceit, malingering, or general credibility.

The evidence was therefore admitted subject to strict limits and jury instructions.