Samantha Shatz

The plaintiffs brought a motion under Rule 7.08 of the Rules of Civil Procedure for approval of a minor's settlement following a fatal motor vehicle accident.

The court was also asked to approve the contingency fee agreement.

The court found that the motion record lacked sufficient information, such as dockets or a description of the work performed, to assess the reasonableness of the legal fees.

The motion was adjourned to allow counsel to address these evidentiary deficiencies.

The defendant, Dr. Yair Karas, moved for summary judgment, asserting that the plaintiff's medical malpractice action was statute-barred under the Limitations Act.

The plaintiff, Denise Bosse, alleged claims of uninformed consent and breach of standard of care related to Radial Keratotomy (RK) surgeries performed by the defendant between 1994 and 2005.

The court found that the plaintiff had actual and constructive knowledge of her injury, its cause by the defendant's acts, and that a legal proceeding was an appropriate remedy by July 11, 2011, when she filed a complaint with the College of Physicians and Surgeons of Ontario.

Consequently, the two-year limitation period expired in July 2013, nine months before the Statement of Claim was issued in April 2014.

The court dismissed the plaintiff's argument that the standard of care claim was only discoverable upon receipt of an expert report in November 2013, emphasizing that knowledge of a breach of standard of care is not required for discoverability.

The defendant's motion for summary judgment was granted, and the action was dismissed.

The defendant obstetrician, Dr. Jackiewicz, was sued for negligence by the Woods family, alleging that his breach of standard of care in managing a twin pregnancy led to Kelsey Woods incurring cerebral palsy.

During the trial, the defendant objected to the plaintiffs' closing address, which invited the jury to find causation even if the pregnancy prolongation from amnioreduction was less than the five weeks testified to by experts.

The defendant requested an instruction that the jury *must* find against the plaintiffs on causation unless a five-week prolongation was proven.

The court declined this additional instruction, finding that there was sufficient evidence for the jury to infer causation with a shorter prolongation, consistent with the principles from *Benhaim v. St-Germain* regarding the use of statistics and inferences in medical malpractice causation.

During a medical negligence jury trial involving the management of a twin pregnancy, the defendant obstetrician requested a jury instruction permitting an adverse inference against the plaintiffs for failing to call a treating physician from McMaster Hospital.

The court declined to give the instruction, applying the principle from Lambert v. Quinn that an adverse inference should not be drawn if the witness is equally available to both sides.

The court found the witness was compellable by the defendant and not peculiarly within the plaintiffs' power to produce.

During a medical malpractice jury trial, the plaintiffs challenged the impartiality of the defendant Dr. Jackiewicz's proposed expert witness, Dr. William Mundle.

The plaintiffs argued that Dr. Mundle's prior solicitor-client relationship with defense counsel and his history of testifying in favor of Dr. Jackiewicz compromised his impartiality.

The court, applying the principles from *White Burgess Langille Inman*, found that the prior solicitor-client relationship did not preclude Dr. Mundle's testimony.

While acknowledging concerns about Dr. Mundle's history of defending Dr. Jackiewicz, the court declined to preclude his testimony, limiting his evidence to causation and prohibiting questioning that would reveal Dr. Jackiewicz's disciplinary history due to the high risk of undue prejudice to the jury.

Limited cross-examination on the duration and nature of Dr. Mundle's professional or personal acquaintance with Dr. Jackiewicz was permitted.

In a medical negligence jury trial, the plaintiffs sought to introduce demonstrative aids (illustrations and charts) through their expert witness, Dr. Cecil Hahn, to explain complex medical concepts related to brain pathology, injury evolution, and statistical relationships between gestational age and neurodevelopmental outcomes.

The defendant, Dr. Allan Jackiewicz, opposed the use of these aids, arguing they were inaccurate, incomplete, unnecessary, and prejudicial.

The court, applying established legal principles for demonstrative aids, found them admissible with one minor excision to prevent misleading information, concluding that they would assist the jury in understanding complex expert evidence without being unduly prejudicial or constituting improper advocacy.

The Plaintiffs in a medical negligence action moved for leave to call four expert witnesses at trial, arguing that section 12 of the Ontario Evidence Act allowed for three experts per issue.

The court rejected this interpretation, holding that leave is required for more than three experts on all issues combined.

The motion for leave was denied, restricting the Plaintiffs to a total of three expert witnesses, citing factors such as the Defendant's objection, sufficiency of three experts for the core issues (standard of care and causation), the Defendant also calling three experts, lack of custom for more than three liability experts in medical malpractice, potential prejudice, and substantial duplication among the proposed experts.

This decision addresses a threshold motion brought by the defendants in a motor vehicle accident claim.

The plaintiff, Barry O'Brien, sought damages for injuries sustained, including a pilon fracture of his left ankle, depression, PTSD, and an exacerbation of low back symptoms.

A jury had previously awarded general damages and past loss of income but no future loss of income.

The defendants argued that the plaintiff's injuries did not meet the 'permanent serious impairment' threshold under s. 267.5(5) of the Insurance Act, RSO 1990, c I.8, and Regulation 461/96, thereby barring his claim for non-pecuniary loss.

The court, while considering the jury's verdict, independently assessed the medical and other evidence.

It concluded that the plaintiff's left ankle fracture resulted in a permanent serious impairment of an important physical function related to his employment, substantially interfering with his ability to continue heavy labour, especially considering the future deterioration due to arthritis.

However, the court found that the impairment did not substantially interfere with most of his usual activities of daily living.

Consequently, the defence's threshold motion was dismissed.

During a motor vehicle accident trial, the plaintiffs objected to the admissibility of a defence psychiatrist's evidence, Dr. Robert Hines.

Initially, the objection concerned Rule 53.03, but it was withdrawn based on the *Westerhof* decision.

The court then raised a concern regarding the defence's attempt to both file Dr. Hines' reports under s. 52 of the *Evidence Act* and call him as a witness, which is contrary to established case law (*Ferraro v. Lee*, *Iannarella v. Corbett*).

Despite the defence counsel's prior involvement in *Iannarella* and the court's gatekeeping role, the defence insisted on calling the witness.

The court, exercising its discretion, allowed Dr. Hines to testify but ordered his reports removed from the jury's document brief to mitigate prejudice to the plaintiffs, while reserving the issue of costs for later consideration.