Sylvia Guirguis

The plaintiff, Sabrina Maher, sued the defendant, Marija Kiric, for damages arising from a motor vehicle accident in which Maher, riding her bicycle, was struck by Kiric’s car.

Maher claimed she suffered permanent serious impairment, including physical, cognitive, and psychiatric injuries.

The court considered whether Maher’s claims for non-pecuniary loss and health care expenses were barred by the Insurance Act threshold.

After reviewing the evidence, including medical records and expert testimony, the court found that Maher did not sustain a permanent serious impairment as a result of the accident.

The court dismissed her claims for non-pecuniary loss and health care expenses.

This endorsement addresses two issues regarding the formulation of jury questions in a civil trial: (1) whether the jury should be asked to provide particulars for its answers, and (2) the appropriate language to use in causation and damages questions.

The court reviews relevant case law and concludes that the disadvantages of requiring particulars outweigh the advantages in this case, and that consistent, clear language should be used in the jury questions, specifically the phrase "caused by" for all damages questions.

The court considered whether the defendant could question experts about the effect of bicycle helmet use on the plaintiff’s injuries, where no expert had opined on the issue in their reports.

The court held that, in the absence of expert evidence specific to the case, statistical evidence about helmet efficacy was inadmissible and potentially prejudicial.

The defendant was precluded from questioning experts on this issue, and the jury would be instructed accordingly.

This endorsement addresses two pre-trial evidentiary issues: (1) the use of a demonstrative aid (a chronological chart) in the plaintiff’s opening address to the jury, and (2) the order in which the plaintiff’s witnesses will be called.

The court allows the use of the demonstrative aid in the opening address, provided the term “head injury” is removed due to its potential to prejudice the jury.

The court declines to order the plaintiff to testify first, leaving the order of witnesses to the plaintiff’s discretion, but reserves the right to revisit the issue if trial efficiency or fairness is compromised.

The appellants appealed an interlocutory order requiring them to produce a witness statement taken by an adjuster from an employee after litigation commenced.

The motions judge had found that litigation privilege over the statement was waived because its contents were discussed and particulars provided during examination for discovery.

The Divisional Court allowed the appeal, holding that the motions judge erred by failing to apply the established principle that a party must disclose relevant facts from a privileged document during discovery without waiving privilege over the document itself.

The plaintiffs brought a motion to amend their Statement of Claim to add two proposed defendants, United Cleaning Services Limited and Orb Services, in a slip and fall action.

United Cleaning opposed the motion, arguing the limitation period had expired.

The court applied the two-stage test from Morrison v. Barzo, finding that the plaintiffs provided a reasonable explanation for not discovering the claims against the proposed defendants earlier, as Loblaws had given no indication of third-party cleaning contractors.

The motion was granted, and substantial indemnity costs were awarded to the plaintiffs against United Cleaning.

This costs endorsement followed a four-week jury trial where the plaintiffs received a net award of $191,228.65.

The defendant's pre-trial offer of $250,000 to settle all claims was found to attract Rule 49.10 cost consequences, despite being a lump sum and inseverable offer to multiple plaintiffs, due to the application of s. 62(1) of the Family Law Act.

The court adjusted the defendant's claimed costs downward, particularly for internal counsel's estimated time, to ensure indemnity rather than a windfall.

The plaintiffs were awarded partial indemnity costs up to the offer date, and the defendant from that date forward.

A net payment of $21,923.17 in costs was ordered from the defendant to the plaintiffs.

Prejudgment interest on non-pecuniary damages was ordered to run until the end of the trial.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff following a slip and fall on their property.

The court applied the five-factor test for setting aside a default judgment and found that the defendants failed to act promptly, offered no plausible explanation for their two-year delay, and lacked an arguable defence on the merits.

The motion was dismissed with costs awarded to the plaintiff.

Three appeals were heard together to determine whether the Licence Appeal Tribunal (LAT) has jurisdiction under s. 7 of the Licence Appeal Tribunal Act to extend the two-year limitation period for filing appeals set out in s. 56 of the Statutory Accident Benefits Schedule (SABS).

The Divisional Court held that s. 7 does grant the LAT jurisdiction to extend the s. 56 limitation period, as the time limit is fixed 'under an Act' (the Insurance Act).

The Court dismissed the insurers' appeals challenging the LAT's jurisdiction and its exercise of discretion to grant extensions, finding no errors of law.

In the third appeal, where the adjudicator had found no jurisdiction, the Court allowed the appeal and remitted the matter back to the LAT to consider the extension request.

Three appeals were scheduled to be heard regarding whether the Licence Appeal Tribunal (LAT) has jurisdiction under s. 7 of the Licence Appeal Tribunal Act to extend the two-year limitation period for statutory accident benefits applications.

The LAT had previously made conflicting decisions on this issue and indicated it did not intend to appear.

The Divisional Court adjourned the appeals and ordered the LAT to intervene and file materials to assist the court in determining the jurisdictional issue.

The appellant appealed a Licence Appeal Tribunal (LAT) decision that found it lacked jurisdiction to grant interim statutory accident benefits.

Before the appeal could be heard, the appellant's underlying claim was settled, rendering the appeal moot.

The appellant argued the court should still hear the appeal because the issue was evasive of review and of public importance.

Applying the Borowski factors, the Divisional Court declined to exercise its discretion to hear the moot appeal, finding that the issue was not evasive of review and that a future, non-moot case would provide a better factual foundation.

The appeal was dismissed.