Sandra G. Zilli

The Personal Insurance Company appealed a motion judge's decision striking out a third party claim against the plaintiffs' lawyers.

The plaintiffs had sued the insurer for negligence in failing to preserve a vehicle that might have helped prove their case in a personal injury action.

The insurer sought contribution and indemnity from the lawyers, alleging they breached their duty to preserve evidence.

The Court of Appeal upheld the striking of the third party claim, holding that the lawyers' alleged negligence fell within the scope of their retainer and was therefore attributable to the plaintiffs.

Where a third party's negligence is attributable to the plaintiff, no cause of action for contribution and indemnity exists against that third party.

The defendants sought leave to introduce surveillance evidence for substantive purposes in a jury trial arising from a motor vehicle accident.

The plaintiff opposed, arguing late disclosure and prejudice.

The court found the defendants breached disclosure obligations under Rules 30.09 and 33.06, particularly regarding waiver of privilege when the evidence was provided to a medical expert.

Applying Rule 53.08, the court determined that significant prejudice to the plaintiff, including impacts on settlement considerations and trial strategy, could not be cured by an adjournment.

Leave to use the surveillance evidence for substantive purposes was denied, though its use for impeachment was not challenged.

The defendants brought a motion to exclude the plaintiff's second orthopedic expert, Dr. Daniel Ogilvie-Harris, arguing that his testimony duplicated that of the plaintiff's treating physician, Dr. Robert Luba, and citing prior judicial comments regarding Dr. Ogilvie-Harris's alleged bias.

The plaintiff sought to admit both experts, asserting distinct contributions and the need for a Rule 53 expert to challenge the defence's expert.

The court dismissed the defendants' motion, allowing both Dr. Luba to testify as a participant expert and Dr. Ogilvie-Harris as a Rule 53 expert.

The court found that Dr. Ogilvie-Harris's opinion offered significant differences, including addressing the Insurance Act threshold and challenging the defence expert, and ruled that allegations of bias should be addressed in a voir dire.

In a motor vehicle accident action, the plaintiff objected to the defence's expert medical evidence from Dr. Finkelstein, arguing the expert relied on inadmissible surveillance video.

A voir dire was held to determine admissibility.

The court ruled that Dr. Finkelstein could testify, but with conditions: no comment on surveillance in examination-in-chief, and the plaintiff could cross-examine on activities disclosed in evidence or directly on the surveillance (with defence re-examination rights).

The court balanced the probative value of the expert evidence against the potential prejudice from the inadmissible surveillance, noting the expert's opinions were largely independent of the video and foundational facts were already in evidence.

The applicant was injured in a motor vehicle accident and received income replacement benefits, which the insurer later terminated.

The applicant applied for arbitration.

The insurer subsequently requested that the applicant attend a medical examination with a respirologist.

The applicant refused, and a preliminary issue hearing was held to determine if the examination was reasonably necessary under section 42 of the Statutory Accident Benefits Schedule.

The arbitrator found that the examination was not reasonably necessary for claims adjustment, as the insurer had been aware of the applicant's medical condition for years and had already made its adjusting decision.

The arbitration was ordered to proceed as scheduled.

The applicant was injured in a motor vehicle accident and received weekly income benefits.

He subsequently returned to work intermittently, earning substantial post-accident income.

The insurer argued that 80% of all post-accident income should be deducted from benefits on a 'carry forward' basis, applying excess earnings against future benefits.

The arbitrator rejected this approach, finding it would act as a disincentive to rehabilitation and returning to work.

Instead, the arbitrator held that post-accident income must be matched directly to the specific weekly income benefit payable in the week it was earned, with no carry forward of any excess.