Court File and Parties

Court File No.: 4306-08 Date: 2019-02-22 Superior Court of Justice - Ontario

Re: Jocelyne Hebditch, Plaintiff And: Estate of Jeanne Birnie, Deceased, Michael Birnie and Ted Seddon, Defendants

Before: The Honourable Mr. Justice R. Dan Cornell

Counsel: D. Lynn Turnbull, counsel for Defendant, Estate of Jeanne Birnie, Moving Party Joelle Malette, counsel for the Plaintiff, Responding Party

Heard: January 16, 2019

Endorsement

[1] The plaintiff has brought an action against the defendants in connection with the injuries that she received when she slipped and fell on March 16, 2007.

[2] Trial dates have been set. The plaintiff proposes to call at least five expert witnesses. The defendants say that there is considerable duplication with the result that the plaintiff should only be entitled to call three expert witnesses.

[3] It was conceded by the defendants that no objection was raised with respect to Dr. Ogilvie-Harris, an orthopaedic surgeon, and Deborah Carter who has prepared a report detailing the present value of the plaintiff’s future care costs.

[4] Apart from these experts, the plaintiff was assessed by Jane Gobbo on July 27th, 2010, and August 24th, 2018. Ms. Gobbo’s reports are entitled “In Home Activities of Daily Living Assessment.”

[5] Michael Herbert had the plaintiff conduct a series of range of motion tests to determine her functional ability.

[6] Catherine Regimbal conducted a vocational evaluation in order to determine what, if anything, the plaintiff might be able to do in the work place.

[7] Ms. Gobbo’s reports contain a section dealing with range of motion. To a large extent, the report prepared by Michael Herbert and the tests conducted by him duplicate the work done by Ms. Gobbo. Accordingly, I find that Mr. Herbert may not be called as an expert witness at the trial.

[8] In his report, Dr. Ogilvie-Harris indicates that the plaintiff “should have vocational rehabilitation”. It is therefore appropriate that Catherine Regimbal testify to assist the jury with the plaintiff’s employment limitations and prospects. The plaintiff shall be permitted to call Mr. Ogilvie-Harris, Deborah Carter, Jane Gobbo and Catherine Regimbal as expert witnesses. The plaintiff may not call Michael Herbert as an expert.

[9] There remains one area concerning possible expert testimony. The defendants propose to call Dr. Hine, a psychiatrist, to provide opinion evidence about Jeanne Birnie’s mental capacity. In response, the plaintiff proposed to call Dr. Veluri, a psychiatrist, to respond to the evidence of Dr. Hine. I expressed concerns that testimony by either of these doctors would fail to meet the requirements set out in R. v. Mohan. Counsel were invited to provide written submissions in this regard. Accordingly, my ruling on the ability of Doctors Hine and Veluri to testify will be made following the receipt of such submissions.

[10] If there is an issue concerning the costs associated with this motion, or the parties are unable to reach agreement, brief written submissions may be made no later than 21 days following the release of this endorsement.

The Honourable Mr. Justice R. Dan Cornell

Date: February 22, 2019