Court File and Parties

Court File No.: CV-14-502664
Date: March 31, 2025
Ontario Superior Court of Justice

Re: Sabrina Maher, Plaintiff/Moving Party
-and-
Marija Kiric, John Doe and the Superintendent or Financial Services, Defendants/Responding Party

Before: L. Brownstone

Counsel:
Sylvia Guirguis and Lazar Andjelkovic, for the Plaintiff/Moving Party
R.K. McCartney and Jake Franchi, for the Defendant Marija Kiric/Responding Party

Heard: March 31, 2025

Endorsement

Background

[1] The incident at the heart of this trial involves a collision between a motor vehicle driven by the defendant and a bicycle ridden by the plaintiff.

[2] It is common ground that:
a. The plaintiff was not wearing a helmet;
b. The plaintiff’s head hit the ground in the collision; and
c. No expert called by either party has provided an opinion on the effect, if any, of the lack of helmet on any injuries sustained by the plaintiff.

[3] The plaintiff’s theory of the case is that she sustained a concussion as a result of the accident, which led to continued health issues and further incidents. The defendant’s theory is that the plaintiff did not sustain a concussion in the collision. The defendant wishes to argue in the alternative that if the plaintiff did sustain a concussion, the impact would have been less had she been wearing a helmet.

[4] The defendant put an article entitled “Evaluating an in-school injury prevention programme's effect on children's helmet wearing habits” to Dr. Frtusova, one of the plaintiff’s litigation experts. Dr. Frtusova’s former clinical supervisor, who had co-signed her expert reports, was one of the authors of the article. The article contains the following sentence: “Biomechanical and epidemiological evidence demonstrates that wearing a helmet when cycling reduces the risk of head injury in a collision by up to 88%.” The article cites two other articles for this proposition.

Plaintiff's Motion

[5] The plaintiff seeks a ruling that the defendant is precluded from questioning the remaining experts on the issue of bicycle helmets and their impact on injuries, harm reduction, or damage mitigation. Further, the plaintiff requests a caution in the charge about the evidence elicited to date in respect of the effect of the plaintiff’s failure to wear a helmet.

[6] The plaintiff argues that allowing this evidence to be put to the experts where this is not contained in their report violates rule 53.03 and results in trial by ambush. This is a particular concern given that none of the defendant’s experts opine on the issue. Further, the probative value is questionable, and the potential prejudicial effect of the evidence is high.

Defendant's Position

[7] The defendant acknowledges that his experts do not opine on the effect, if any, of helmet use on the plaintiff’s injury. However, counsel argues that it would “be an impermissible limit placed on the cross examination of an opposing expert to NOT be permitted to elicit opinion evidence favorable to the defendant’s case.” He argues that because the witnesses are experts on brain injuries, they should be permitted to be asked questions about helmets and brain injuries.

[8] As noted, none of the litigation experts discusses the impact of bicycle helmets on harm reduction in head injuries or concussions. They do this neither in a general sense nor specifically with respect to this incident and this plaintiff. There is no expert who reconstructed the plaintiff’s fall and opined on the effect of wearing, or not wearing, a helmet in the circumstances of that fall.

Analysis

[9] The defendant relies on Gilbert v. South, 2015 ONCA 712 for the proposition that an expert may be permitted to give opinion evidence outside the corners of his or her report. There, the plaintiff’s expert, a physiatrist, was permitted to answer a question in his examination in chief about whether a workplace-related incident would change his opinion on the cause of the plaintiff’s injuries. In that case, each side was aware of the other side’s theory on the incident the expert was asked about. The defendant’s expert had given an opinion on the incident. The trial judge held, and was upheld on appeal, that it would have been unfair to preclude the plaintiff’s expert from also giving an opinion on the incident. The trial judge gave defendant’s counsel the opportunity to request additional time before cross-examining the expert.

[10] Gilbert does not assist the analysis in this case. The defendant has no expert on the helmet issue. Therefore, the plaintiff cannot be said to be aware of the defendant’s position on the issue, aside from a bald assertion, unsupported by evidence, that a helmet would have reduced the plaintiff’s injuries. The defendant seeks to elicit this evidence only from the plaintiff’s experts, and only by referring to articles, raised for the first time at trial, that contain general statistical information. To the degree this presents a trial fairness issue, it is unfair to the plaintiff.

[11] Statistical evidence does not answer the question of the extent to which a helmet could or would have reduced the head injury in this case: Repic v. Hamilton (City) at para. 43; Laferrière v. Lawson, [1991] 1 SCR 541, at paras. 159-160. As noted by the Supreme Court of Canada in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 SCR 352, at paras. 75-76:

Statistics themselves are silent about whether the particular parties before the court would have conformed to the trend or been an exception from it. Without an evidentiary bridge to the specific circumstances of the plaintiff, statistical evidence is of little assistance.

Legal fact-finding must be concerned with what actually happened between the parties before the court, and not with what happens in most cases, most of the time.

[12] This issue was considered by Gans J. in the context of statistical evidence and failure to wear a helmet in Labanowicz v. Fort Erie (Town), 2017 ONSC 630. There, a participant expert was asked about literature that suggests that wearing bicycle helmets prevents up to 88 per cent of brain injuries. Gans J. concluded that he would be “falling into error” if he relied on the statistical assertion as authoritative.

[13] I do not believe the analysis differs in any material way if the expert to whom the statistic is put is a participant expert, as was the case in Labanowicz, or a litigation expert.

[14] There are two significant problems with this line of questioning in this case.

First Problem

[15] First, there is no expert evidence about the impact of the helmet in this case. There is no expert who reviewed and opined about the biomechanics of this fall. This is not an issue that should be raised for the first time at trial. This is not a case where the defence adduced evidence and the plaintiff did not respond. It is not a case where the issue can properly be called “latent”.

[16] Had the defendant wished to obtain expert evidence about the impact on her injuries, if any, of the plaintiff’s failure to wear a helmet, the defendant could have done so. The plaintiff would then have had an opportunity to consider any such report, and respond accordingly. Having chosen not to obtain such evidence, the defendant cannot now conduct trial by ambush and seek to make a statistical argument divorced from the facts of this case.

Second Problem

[17] Second, statistical evidence is to be used cautiously. Statistics should not be used to overwhelm or detract from the factual inquiry of what happened to this plaintiff in this case. The probative value of asking for comment on statistical information is therefore low. The potential prejudicial effect, that this evidence will be misused and applied to this case without foundation, is high.

Conclusion

[18] Accordingly, the defendant is precluded from questioning the remaining experts on the issue of bicycle helmets and their impact on injuries, harm reduction, or damage mitigation.

[19] Instructions will be provided to the jury in respect of evidence they have heard to date on this issue. The parties will have an opportunity to provide submissions on this instruction as part of their submissions on the charge.

L. Brownstone
Date: March 31, 2025