Talar Beylerian

During closing arguments in a personal injury trial, defence counsel asked the jury to consider why the plaintiff did not call her treating physician or her manager as witnesses.

The plaintiff objected and brought a motion to strike the jury.

The court dismissed the motion to strike the jury but found the comments were an inappropriate invitation to draw an adverse inference.

The court held that an adverse inference was not justified because the witnesses were not in the exclusive control of the plaintiff, given modern discovery rules that provide equal access to medical and employment records.

In a personal injury jury trial arising from a motor vehicle accident, the plaintiff moved before openings to exclude surveillance obtained by the defence after discoveries and disclosed only shortly before trial.

The court held that the defence breached rules 31.09(1)(b) and 30.07 of the Rules of Civil Procedure by failing to promptly notify the plaintiff of post-discovery surveillance and by failing to serve supplementary affidavits of documents.

Applying the leave framework under rule 53.08, the court found the prejudice did not outweigh the probative value because the trial had not yet begun in substance and any prejudice could be addressed by adjournment, costs, and immediate production of the videos.

The defence was granted leave to use the surveillance for impeachment purposes only.

In this personal injury trial arising from a motor vehicle accident, the court addressed an objection to proposed opinion evidence from a treating chiropractor on whether the plaintiff still required treatment.

Applying the framework for participant experts, the court held that treating health practitioners may give opinion evidence without rule 53.03 compliance only if the opinion was formed through observation or participation in the events at issue in the ordinary exercise of their expertise.

The court further held that a party should disclose in advance opinions to be elicited from a participant expert when those opinions are not contained in the records already produced.

A voir dire was ordered on admissibility, and any resulting prejudice was addressed by permitting the defence orthopedic expert to respond without full rule 53.03 formalities.

The successful respondent on an appeal from the Small Claims Court sought partial indemnity costs of $15,961.25.

The appellant argued the costs were disproportionate to the $9,129.02 at issue in the appeal.

The court considered the Rule 57 factors, noting that while the monetary amount was small, the legal issues regarding priority between a perfected security interest under the PPSA and an unregistered non-possessory lien under the RSLA were complex and important to the appellant.

The court fixed costs at $9,500 plus HST.

Daimler appealed a decision granting priority to 417 Truck Centre's unregistered non-possessory lien and storage lien over Daimler's registered security interest in a truck.

The Divisional Court dismissed the appeal, finding that Daimler was not a third party who acquired an interest after the non-possessory lien arose, and had prior notice of the lien before paying funds into court.

The court also upheld the storage lien, finding an implied understanding that storage would be charged and that the daily rate was reasonable.