Robert K. McCartney

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 decision addresses a Charter application in a drink-driving and resisting arrest case, focusing on alleged violations of ss. 8, 9, and 10(a) of the Canadian Charter of Rights and Freedoms.

The court analyzed whether the police had reasonable and probable grounds for arrest and breath demand, the lawfulness of police presence on private property under the implied license doctrine, and the adequacy and timeliness of informing the accused of the reasons for detention.

The judge found no Charter breaches, concluding the police acted reasonably and lawfully, and dismissed the application to exclude breath evidence.

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 defendant was charged with impaired operation of a motor vehicle and refusing to provide a breath sample.

He brought a Charter application alleging that his rights were violated because the police failed to accommodate his Mandarin language barrier.

The court dismissed the Charter application, finding that the police responded reasonably to the defendant's language needs and that he understood the proceedings.

At trial, the court found the defendant guilty of both charges, concluding that he was the driver of the vehicle and that his failure to provide a breath sample was a wilful and deliberate obstruction.

Michael Kefle was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg.

The defence argued for Charter breaches related to grounds for arrest, unlawful detention (overholding), and the right to re-consult counsel.

The court found that the police had reasonable and probable grounds for arrest and breath demand, that the period of detention was reasonable given the high intoxication level and public safety concerns, and that the right to re-consult counsel was not violated as the investigation was complete.

Consequently, the court found the accused guilty on both counts.

The defendant, Minh Vu Nguyen Dao, was charged with impaired operation of a conveyance and operating with a blood alcohol concentration over .08.

He challenged the admissibility of the Certificate of a Qualified Technician, alleging breaches of his s. 10(b) Charter rights.

The court found a one-minute delay in providing the informational component of the right to counsel, but deemed it not serious and without impact on the defendant's rights, thus not warranting exclusion of evidence under s. 24(2).

Regarding the implementational component, the court found that police provided a reasonable opportunity to consult counsel of choice, and the defendant's subsequent decision to speak with Duty Counsel was a valid choice.

Consequently, the Certificate was admitted, and the defendant was found guilty on both charges.

This decision addresses the costs of a motion where the plaintiffs were entirely successful in determining the order of examination for discovery.

The court awarded substantial indemnity costs to the plaintiffs, condemning the defendant Aviva's tactical delay and deficient affidavit of documents.

The judge emphasized the importance of proper document disclosure in civil litigation and allowed for counsel's travel time and reasonable disbursements, noting that a litigant's choice of counsel should not be limited by geographical proximity.

The plaintiffs brought a motion for directions to determine the order of examinations for discovery.

The defendant insurer had served an affidavit of documents that was two years out of date and omitted the relevant insurance policy, claiming priority to examine the plaintiffs first.

The court found the insurer's affidavit of documents was deficient and a nullity, meaning it had not preserved its right to examine first.

The court ordered the insurer to serve a further and better affidavit of documents, struck the insurer's notice of examination and certificate of non-attendance, and ordered that the plaintiffs were entitled to examine the defendants first.

The moving defendants sought summary judgment dismissing liability claims arising from a chain-reaction rear-end motor vehicle accident.

They argued there was no genuine issue requiring a trial regarding their liability.

The court found conflicting evidence concerning how the collision occurred, including discrepancies relating to lane changes and cell phone usage prior to the accident.

Credibility issues affecting both drivers could not be resolved on the written record.

The court held that a full appreciation of the evidence required oral testimony at trial and dismissed the motion.

The Applicant sought to withdraw his Application for Arbitration for statutory accident benefits after realizing he had missed the two-year limitation period, intending instead to pursue a court action against his former solicitor for negligence and an alternate claim for benefits.

The Arbitrator permitted the withdrawal but found that commencing and then withdrawing the arbitration to pursue a better forum constituted an abuse of process.

Consequently, the Applicant was ordered to pay the insurer's $2,000 assessment fee, and prohibited from commencing another arbitration for the same benefits until the fee is paid.