Kim Dullet

The plaintiffs in a medical malpractice action sought leave to amend their Statement of Claim for a fourth time.

The defendant physicians opposed several amendments, arguing they introduced new statute-barred claims for wrongful death and spoliation of evidence, added new allegations based on unpleaded facts, and impermissibly withdrew prior admissions.

The court allowed most of the amendments, finding they merely particularized the existing factual matrix, but struck specific sentences that implicitly advanced a statute-barred wrongful death claim, contained inflammatory language, or pleaded immaterial legal conclusions regarding non-delegable duties.

This decision addresses a Rule 2.1.01 motion concerning multiple proceedings commenced by the plaintiff, Aynoush Biniaz-Sarabi, arising from a motor vehicle accident and subsequent denial of accident benefits.

The court reviews the history of related litigation, including prior decisions by the Licence Appeal Tribunal and Divisional Court, and considers whether the current and related actions are frivolous, vexatious, or an abuse of process.

Several actions are dismissed under Rule 2.1.01, and the court declines to declare the plaintiff a vexatious litigant without a formal motion.

The defendant brought a threshold motion under section 267.5 of the Insurance Act, seeking a declaration that the plaintiff had not suffered a permanent and serious impairment of an important physical, mental, or psychological function as a result of a motor vehicle collision.

The plaintiff opposed the motion, arguing that her injuries, including PTSD and major depression, met the threshold criteria.

The court dismissed the defendant's motion, finding that the plaintiff had, on a balance of probabilities, suffered a permanent, serious impairment of an important physical, mental, or psychological function caused by the collision.

The court also made findings on the credibility and reliability of the defence medical expert.

The plaintiff in a motor vehicle collision action brought a motion to include the names of the parties' respective motor vehicle insurers (Belair Direct and Aviva) in the jury pre-screening process.

The plaintiff argued that public awareness of mandatory insurance mitigated prejudice and that broader "connections" beyond employment should be screened.

The defendant opposed, citing potential prejudice and increased complexity.

The court dismissed the motion, affirming that civil jury selection in Ontario does not permit challenges for cause based on unspecified partiality and that the presumption of juror impartiality is strong.

The court held that identifying insurers at the outset could mischaracterize the dispute as one between insurers rather than individuals and potentially mislead the jury regarding a defendant's personal exposure.

The plaintiff brought a motion to strike the defendant's jury notice and proceed before a judge alone, arguing that a 19.5-day delay between the conclusion of evidence and closing arguments would prejudice the jury's ability to recall and understand complex medical evidence regarding post-traumatic stress disorder.

The court dismissed the motion, finding that the evidence was not overly complex, the actual delay was shorter than claimed, and the jury was capable of comprehending and weighing the evidence.

The court concluded that justice would be better served by retaining the jury.

The plaintiff sought a specific instruction to the jury regarding the defendant's in-court admissions concerning fault for a collision.

During cross-examination, the defendant stated she did not believe the plaintiff was responsible and that her decision to enter a lane ultimately caused the accident.

The court had previously given a general instruction that the jury are the triers of fact and the defendant's views on fault are merely her views.

The plaintiff argued these were in-court admissions warranting a specific instruction that the jury should rely on them unless contradicted.

The court ruled that the defendant's answers were her views, not admissions of fact based on all relevant evidence, and therefore did not warrant specific mention in the jury charge.

The defendant in a personal injury action sought to rely on approximately 20 posts from the plaintiff’s Facebook page for cross-examination, which had been retrieved through an agreement but not formally disclosed.

The plaintiff objected, citing prejudice due to the late disclosure of a significant volume of materials, which prevented proper trial preparation, expert review, and settlement negotiations.

The court dismissed the defendant's request, emphasizing the importance of full and rigorous compliance with disclosure obligations under the Rules of Civil Procedure and the agreement between counsel.

The defendant sought to admit surveillance video of the plaintiff as substantive evidence in a personal injury action.

The court applied a three-part test for admissibility (accuracy, fairness/absence of intention to mislead, and verification on oath) and found that the surveillance evidence did not meet these criteria due to issues with inconsistent time-stamping, selective editing, subjective descriptions by the investigator, and significant gaps in footage.

The court also determined that the evidence had minimal probative value and that its potential prejudice to the plaintiff, particularly given the claim of post-traumatic stress disorder and the lack of expert review of the surveillance, outweighed any probative value.

Additionally, the defendant's late disclosure of 2016 surveillance evidence, two weeks before trial, was deemed non-compliant with disclosure obligations, and leave to rely on it was denied.

The motion to admit the surveillance evidence was dismissed in its entirety.

The defendant brought a threshold motion during jury deliberations in a motor vehicle personal injury action, seeking a declaration that the plaintiff's injuries did not meet the statutory threshold under s. 267.5(5) of the Insurance Act.

The plaintiff claimed to suffer from chronic pain syndrome resulting from a minor rear-end collision.

The court preferred the evidence of the defendant's medical expert and relied heavily on video surveillance showing the plaintiff engaging in vigorous physical activities inconsistent with her claimed limitations.

The court found the plaintiff failed to prove a permanent, serious impairment of an important physical function.

Consequently, the jury's award of $50,000 for general damages was disallowed, and judgment was entered only for the $32,000 awarded for past loss of housekeeping services.