Maximir Luburic

The Court of Appeal for Ontario heard an appeal from a jury verdict and costs endorsement in a personal injury action.

The appellants (defendants) challenged the admissibility of a SPECT scan, the exclusion of attendant care forms for credibility, and jury instructions on causation and damages.

They also appealed the trial judge's refusal to deduct non-earner benefits from the tort award and the costs award.

The Court dismissed the appeals regarding the SPECT scan, attendant care forms, and jury instructions.

However, it allowed the appeal in part, ruling that non-earner benefits are deductible from the past income loss award, clarifying the "silo" approach under the Insurance Act.

The appeal on costs was dismissed, and the respondent was awarded costs for the appeal.

The plaintiff brought a negligence action for injuries from an automobile accident, with liability admitted by the defendants.

The trial proceeded on damages only before a jury.

The court addressed a dispute between counsel regarding the wording of jury questions.

The defendants proposed questions that included a causation question despite admitted liability, and sought to particularize damages by apportioning them between the initial accident and subsequent accidents.

The court rejected the defendants' proposed questions, finding them to contain embedded assumptions, to be overly complicated, and to risk confusion.

The court affirmed that admitted liability includes causation, making a separate causation question unnecessary.

It also reiterated principles against apportionment between tortious and non-tortious causes for indivisible injuries, and the general rule against requiring juries to provide reasons or particularize findings, especially for damages assessment.

The plaintiff's simpler, general damages questions were adopted.

The defendants brought a motion seeking production of original diagnostic imaging records, reattendance of the plaintiffs for discovery, and a further defence medical examination of the plaintiff by an orthopaedic surgeon.

The plaintiffs opposed, arguing the requests were disproportionate and that the defendants were only entitled to one physical examination.

The court granted the motion, finding the diagnostic imaging relevant and its production justified.

The court also ordered reattendance for discovery to answer follow-up questions.

Finally, the court ordered the further defence medical examination, limited to assessing the cause and prognosis of the plaintiff's labral tear, as the first examining physiatrist lacked the necessary expertise.

The plaintiff was previously successful on a motion to amend her statement of claim on the basis of misnomer.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $6,069.30, while the respondents argued there should be no costs because the amendment was an indulgence.

The court agreed with the respondents, finding that the relief granted was discretionary and constituted an indulgence.

Given the plaintiff's delay and the respondents' reasonable opposition, the court ordered no costs for the motion.

The plaintiff brought a motion to amend her statement of claim to add the former owners of a condominium unit as defendants after the expiry of the limitation period.

The plaintiff had originally named the condominium corporation as the owner due to an incomplete title search.

The court granted the motion on the basis of the doctrine of misnomer, finding that the pleading clearly pointed the 'litigating finger' at the owners of the unit and that the proposed defendants would not suffer non-compensable prejudice.

The court rejected the alternative argument based on discoverability, noting that the true owners could have been discovered with due diligence.