Timothy P. Boland

The plaintiff brought a motion to strike the jury notice in a motor vehicle accident action, arguing that civil jury trials would be unavailable for the foreseeable future due to the COVID-19 pandemic and that a jury would not represent a cross-section of the community.

The court dismissed the motion, adopting a 'wait and see' approach to allow the newly implemented Central East Region protocol for civil trials to evolve.

The court found no evidence that jury composition had deteriorated and held that striking the jury based on anticipated delay was premature.

The plaintiff was injured in a skiing accident and underwent a vocational assessment.

The defendant sought an order requiring the plaintiff to undergo a further assessment by a vocational assessor of its choosing.

The motion judge granted the order, and the Divisional Court upheld it.

On appeal, the Court of Appeal affirmed that section 105 of the Courts of Justice Act does not occupy the field, and the Superior Court retains inherent jurisdiction to order an assessment by someone who is not a 'health practitioner' to ensure fairness and justice between the parties.

In a personal injury action arising from a motor vehicle accident, the plaintiffs brought a motion to exclude surveillance evidence obtained by the defendant.

The defendant had disclosed a surveillance video from October 2012 well in advance of trial but failed to disclose additional surveillance from 2013 and 2014 until shortly before trial, contrary to an undertaking given at discovery.

The court held that although the defendant breached its disclosure obligations, the October 2012 surveillance could still be admitted as substantive evidence and for impeachment because it had been disclosed long before trial and both parties’ experts had reviewed it.

The later surveillance footage could not be relied upon by the defendant but remained available for the plaintiffs’ use.

Any potential prejudice could be addressed through supplemental expert reports or an adjournment.

Applicants brought an application challenging the validity of sections 3, 4, and 5 of the 2002 Minimum Maintenance Standards for Municipal Roadways under the Municipal Act, 2001, asserting that the regulation was ultra vires.

The challenge arose in the context of a personal injury action alleging negligent winter road maintenance.

After the Court of Appeal’s decision in Giuliani limited the scope of the regulation and the municipality withdrew reliance on it as a defence, the respondents moved to strike the application as moot.

The court held that no live controversy remained between the parties and declined to exercise discretion to hear the matter, emphasizing judicial economy and the limited relevance of the impugned provisions following amendments and appellate guidance.

The plaintiff, a cyclist with significant pre-existing psychological and cognitive vulnerabilities, was struck by a police cruiser while riding through a pedestrian crosswalk at night.

The court apportioned liability 60% to the defendant police officer and 40% to the plaintiff.

Applying the thin skull rule, the court found the collision exacerbated the plaintiff's pre-existing conditions and caused a mild traumatic brain injury, rendering him completely disabled and requiring 24/7 attendant care.

Total damages were assessed at over $5.2 million, reduced to $3,131,370 after accounting for contributory negligence.

The applicant sought an order requiring the insurer to produce its complete file created after the date she filed her Application for Mediation.

The insurer opposed, arguing the file was protected by litigation privilege and irrelevant as claims handling was complete.

The arbitrator dismissed the motion, finding the applicant failed to establish the relevance of post-mediation documents and upholding the Commission's general presumption that documents created after an Application for Mediation are prepared for the dominant purpose of litigation.

The applicant sought production of the insurer's entire accident benefits file, including post-mediation documents and communications with counsel, arguing the insurer waived privilege by abandoning its position on an insurer examination.

The arbitrator found no factual basis for waiver of solicitor-client privilege.

However, due to concerns about the insurer's compliance with a prior production order and its refusal to particularize claims of privilege, the arbitrator ordered the insurer to serve a detailed Affidavit of Documents for both the pre-mediation and post-mediation periods.