M. Elkin

The plaintiff was rendered a quadriplegic after diving into a shallow above-ground pool at his aunt's farm.

He brought an action against the defendant, a friend of his cousin, who had assisted in moving a wooden platform next to the pool a few weeks prior to the accident.

The court found that the defendant was not involved in the design or construction of the platform, and merely helped move it.

The court held that the plaintiff's injury was not a reasonably foreseeable consequence of the defendant's actions, and there was insufficient proximity to establish a duty of care.

The action was dismissed.

The plaintiff brought a motion to strike the defendants' jury notice due to delay caused by the COVID-19 pandemic.

The action arose from an alleged assault at a festival in 2015.

The court considered the severe backlog of civil jury trials in the Central East Region and the prejudice to the plaintiff from open-ended delay.

The court provisionally struck the jury notice and ordered the matter placed on the non-jury trial list for the May 2021 sittings, with leave for the defendants to move to restore the jury notice if the matter is not reached.

Following a jury verdict awarding modest damages in a motor vehicle accident action, the defendant brought a post-verdict threshold motion seeking a declaration that the plaintiff’s claim for non‑pecuniary damages was barred under s. 267.5(5) of the Insurance Act.

The court applied the three-part test from Meyer v. Bright to determine whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function.

Despite the minor impact of the final collision and the jury’s minimal damages award, the court found credible medical and vocational evidence that the accident exacerbated existing conditions, resulting in chronic pain syndrome and functional incapacity preventing gainful employment.

The court held that the plaintiff met the statutory threshold and the defendant remained liable for non‑pecuniary damages.

In a civil jury trial, the plaintiff brought a motion seeking to question sworn jurors for potential bias relating to abortion after the jury panel had already been selected and sworn.

The plaintiff relied on survey evidence suggesting Canadians hold strong views on abortion and argued that questioning jurors was necessary to identify potential prejudice.

The court held that civil juries are presumed capable of setting aside personal views through the trial process and judicial instructions, and that there was insufficient evidence of widespread bias that would justify such questioning.

The court emphasized the discretionary nature of challenges for cause in civil proceedings and warned that permitting such questioning could create delays and open the floodgates to inquiries on many personal characteristics.

The motion was dismissed.

Following a jury trial where the plaintiffs recovered damages for general damages and future care but failed on claims for wage loss, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs exceeding $247,000, while the defendants argued for partial indemnity costs around $105,300.

Applying the principles of reasonableness under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that substantial indemnity was not justified because there was no reprehensible conduct by the defendants.

The court emphasized that costs must be fair and proportionate to the result achieved.

Partial indemnity fees of $100,000 and disbursements of $50,000 inclusive of HST were awarded.

In a motor vehicle personal injury jury trial, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act seeking to bar the plaintiff’s claim for non‑pecuniary damages.

Liability had been admitted and the jury awarded $125,000 in general damages and $150,000 for future care costs.

The court considered whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function within the meaning of the statutory threshold under Bill 198 (Regulation 381/03).

Evidence showed the plaintiff suffered ongoing ankle and neck problems and an exacerbation of pre‑existing clinical depression that significantly limited his daily functioning.

The court held that the combined physical and psychological impairments met the statutory threshold and substantially interfered with the plaintiff’s usual activities of daily living.

The defendants’ threshold motion was dismissed and the plaintiff was entitled to judgment in accordance with the jury’s verdict.