Court File and Parties
DIVISIONAL COURT FILE NO.: 481/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ.
BETWEEN:
EVELYN KEWAYOSH, personally and as Litigation Guardian for KI WILLIAM LALIEU KEWAYOSH, JESSE MOOKISHIG KEWAYOSH and LIBERTY GRACE KEWAYOSH, WILCY LEE KEWAYOSH
Plaintiffs
(Respondents)
– and –
DR. THOMAS B. LACROIX, DR. G. W. BARWITZKI, BLUEWATER HEALTH, CATHY BUTLER, DOROTHY GLEASON, SONJA MACKIE, PATRICIA DERIDDER, JANE DOE and DR. M.A. MENDOZA and DR. A. W. N. CANNING
Defendants
(Appellants)
COUNSEL:
Joni Dobson, for the Plaintiffs (Respondents)
John A. Nicholson, for the Defendants, Drs. Lacroix, Barwitzki, Canning and Mendoza
HEARD at Toronto: November 19, 2013
Oral Reasons for Judgment
A.C.J.S.C. MARROCCO
1The appeal is allowed.
2Subject to any claims of privilege, production is ordered. Morissette J., at paras. 4 and 9 of her reasons stated that Jesse Kewayosh had cerebral palsy and accordingly, could not be a proper comparator. This conclusion apparently resulted in part from statements made during argument of the motion before Her Honour. It was for this reason that Morissette J. appeared to reject the defence expert’s conclusions. Today, counsel for both sides clarified that there is no conclusive diagnosis that Jesse Kewayosh has cerebral palsy. Irrespective of the standard of review, in these particular circumstances, Her Honour’s decision cannot stand.
3We do not read Her Honour’s decision as a conclusion concerning the merits of the defence because that issue was not before Her Honour and Her Honour allowed production of certain information concerning Jesse Kewayosh.
4Finally, we point out that the trial judge has the discretion to exclude evidence whose prejudicial effect before the jury outweighs its probative value.
COSTS
5Costs are reserved to the trial judge because the degree of relevance of the documents that are the subject of this motion is unclear at this point in this matter.
A.C.J.S.C. MARROCCO
BALTMAN J.
MCEWEN J.
Date of Reasons for Judgment: November 18, 2013
Date of Release: November 26, 2013
CITATION: Kewayosh v. Lacroix, 2013 ONSC 7136
DIVISIONAL COURT FILE NO.: 481/13
DATE: 20131118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ.
BETWEEN:
EVELYN KEWAYOSH, personally and as Litigation Guardian for KI WILLIAM LALIEU KEWAYOSH, JESSE MOOKISHIG KEWAYOSH and LIBERTY GRACE KEWAYOSH, WILCY LEE KEWAYOSH
Plaintiffs
(Respondents)
– and –
DR. THOMAS B. LACROIX, DR. G. W. BARWITZKI, BLUEWATER HEALTH, CATHY BUTLER, DOROTHY GLEASON, SONJA MACKIE, PATRICIA DERIDDER, JANE DOE and DR. M.A. MENDOZA and DR. A. W. N. CANNING
Defendants
(Appellants)
ORAL REASONS FOR JUDGMENT
A.C.J.S.C. MARROCCO
Date of Reasons for Judgment: November 18, 2013
Date of Release: November 26, 2013