Court File and Parties

COURT FILE NO.: 58885/19 DATE: 2023-01-17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Miroslav Tous, Plaintiff Self-represented

- and -

Haider Khalil Tabatabai, Defendant J. Marquis and M. Lopo, for the Defendant

HEARD: January 16, 2023

THE HONOURABLE MR. JUSTICE J. R. HENDERSON

Endorsement on Motions

[1] The trial of this proceeding is scheduled to take place, with a jury, at the sittings commencing January 16, 2023. In anticipation of the trial, the defendant brings two motions as follows:

1. The defendant requests a court order that any documentary evidence introduced by the plaintiff at trial is inadmissible hearsay evidence, and
2. The defendant requests a court order dismissing the plaintiff’s claim for general damages and health care expenses as the plaintiff cannot prove that the plaintiff’s injuries meet the statutory threshold required for such claims as set out in the Insurance Act.

[2] By way of background, I find that the plaintiff was involved in a motor vehicle accident on December 1, 2012, and that the plaintiff alleges that he suffered injuries as a result of that motor vehicle accident.

[3] The plaintiff sued the defendant by way of a statement of claim that was issued in 2014. In the statement of claim the plaintiff claims general damages in the amount of $1 million, plus an unspecified amount for special damages.

[4] The defendant delivered a statement of defence in which the defendant denied liability for any injuries suffered by the plaintiff. The defendant also alleged that any injuries suffered by the plaintiff do not exceed the statutory threshold.

[5] The plaintiff has been self-represented in this proceeding since October, 2015.

[6] There have been two judicial pretrials. The plaintiff did not file a pretrial brief for either of the judicial pretrials. At the second judicial pretrial, on April 8, 2022, Standryk J. ordered that:

1. The plaintiff shall confirm the name and contact number of any witnesses that the plaintiff intended to call at trial within 90 days.
2. The plaintiff shall provide updated medical records from 2017 to the present within 90 days.
3. The plaintiff shall provide his income tax returns and notices of assessment from 2012 to the present within 90 days.

[7] On January 9, 2023, the plaintiff informed defence counsel that the plaintiff would not be calling any witnesses at trial, other than the plaintiff himself. The plaintiff further confirmed that the plaintiff would be relying upon the documentary evidence that had already been produced.

[8] The only medical notes and records that the plaintiff has provided in this proceeding are the notes and records obtained by defence counsel through the use of the plaintiff’s signed authorization in 2016. The plaintiff has not produced any other medical notes or records for any medical attendance that may have occurred after 2016.

[9] The plaintiff has not served any notice that the plaintiff intends to introduce expert evidence, medical reports, or business records at trial.

[10] Regarding the first motion with respect to hearsay, it is the defendant’s position that any possible documentary evidence from the plaintiff would be inadmissible hearsay evidence as the only viva voce witness will be the plaintiff. The defendant submits that if the plaintiff intended to introduce a medical note, for example, the plaintiff would not be permitted to testify as to the contents of the note as the plaintiff is not the author of the note. Therefore, any such note would be inadmissible.

[11] The difficulty with this motion is that as of today’s date the court is not aware of the precise documentary evidence that the plaintiff will attempt to introduce at trial. The plaintiff has not specifically identified the documentary evidence upon which the plaintiff will rely, and defence counsel is unsure of the plaintiff’s intentions in this respect.

[12] In my view, it is not appropriate for the court to speculate about the possible particulars of the plaintiff’s documentary evidence, and then make a blanket order about its admissibility. In general, evidentiary rulings should be made based upon specific proposed evidence.

[13] I accept that the defendant has raised a valid argument with respect to hearsay evidence, and that argument may be successful with respect to some of the documents that the plaintiff may attempt to introduce at trial. However, any decisions regarding the admissibility of evidence should be made at the time that the evidence is tendered at trial. Therefore, any decisions with respect to admissibility should be deferred to the trial judge.

[14] Accordingly, the first motion regarding hearsay evidence is adjourned to be heard at an appropriate time by the trial judge.

[15] Regarding the second motion with respect to the threshold, I find that the defendant’s motion has considerable merit. Pursuant to s.267.5 (3) and (5) of the Insurance Act, the defendant will not be liable for the plaintiff’s general damages or health care expenses unless the plaintiff proves that he has sustained “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function.”

[16] The onus is on the plaintiff to prove that his injuries exceed the statutory threshold.

[17] Further, s.4.3 (2) of O. Reg 381/03 provides that a person who alleges that his claim exceeds the statutory threshold “shall adduce evidence of one or more physicians, … that explains…” the nature of the impairment, the permanence of the impairment, the specific function that is impaired, and the importance of the specific function to the person.

[18] Given that the plaintiff will not be calling any medical witness at trial and the fact that the plaintiff has not served any notice that he intends to introduce any medical report, business record, or expert evidence, the plaintiff will not be permitted to introduce any evidence from a physician at trial. Thus, the plaintiff cannot comply with O. Reg 381/03.

[19] The plaintiff’s failure to comply with O. Reg 381/03 is fatal to the plaintiff’s allegation that the plaintiff’s injuries exceed the statutory threshold. See the decision in Khan v. Sinclair, 2014 ONSC 1355, at paras. 11-17. Therefore, the plaintiff’s claims for general damages and health care expenses must be dismissed.

[20] For the above-mentioned reasons, I make the following orders:

1. The defendant’s motion regarding the admissibility of hearsay evidence is adjourned to the trial judge.
2. The plaintiff’s claims for general damages and health care expenses are dismissed.

[21] The costs of both motions are reserved to the trial judge.

Justice J. R. Henderson Released: January 17, 2023