Sherilyn Pickering

At the outset of a personal injury trial arising from a motor vehicle accident, the defendant moved to exclude expert evidence based on a brain SPECT scan used to diagnose a traumatic brain injury (TBI).

The court held that using a SPECT scan to diagnose TBI and distinguish it from anxiety or depression constitutes novel science.

Applying the reliable foundation test from R. v. J.-L.J., the court found the methodology had not been tested, lacked peer review, had no known error rate, and was not generally accepted by the relevant scientific community.

The evidence was ruled inadmissible.

The plaintiff brought a motion to strike the defendant's jury notice in a personal injury action arising from a motor vehicle collision, citing anticipated delays in scheduling civil jury trials due to the COVID-19 pandemic.

The court granted the plaintiff leave to bring the motion under Rule 48.04(1) but ultimately dismissed the motion to strike the jury notice.

The court found that the plaintiff had not moved the action forward expeditiously prior to the pandemic and failed to demonstrate that any potential delay outweighed the defendant's substantive right to a jury trial, noting that civil jury trials were likely to resume by May 2022.