Timothy Parker Boland

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The plaintiff was catastrophically injured when she lost control of her vehicle on a snow-covered and icy municipal road, crossing the centre line and colliding with an oncoming vehicle.

The plaintiff sued the municipality for failing to keep the road in a reasonable state of repair.

The Superior Court of Justice found that the municipality was in the midst of a winter weather event but failed to adequately treat the road, leaving it unplowed and subject to refreezing for several hours.

The court held that the road was in a state of non-repair, which caused the collision, and that the municipality failed to establish any statutory defences under the Municipal Act.

The plaintiff was found not to be contributorily negligent, and the municipality was held fully liable for the agreed-upon damages.

The plaintiff, catastrophically injured and with a reduced life expectancy, brought a motion to strike jury notices and expedite her civil trial due to the significant delays caused by the COVID-19 pandemic.

The court granted leave to bring the motion and conditionally struck the jury notices, allowing the matter to proceed as a non-jury trial if civil jury trials are not running when the case is called.

The court declined to order the matter be heard on the immediate pending sittings, deferring to the triage judge for expedition, acknowledging the defendant's counsel's scheduling conflict.

The plaintiff brought a motion to strike the jury notice in a motor vehicle accident action, arguing that civil jury trials would be unavailable for the foreseeable future due to the COVID-19 pandemic and that a jury would not represent a cross-section of the community.

The court dismissed the motion, adopting a 'wait and see' approach to allow the newly implemented Central East Region protocol for civil trials to evolve.

The court found no evidence that jury composition had deteriorated and held that striking the jury based on anticipated delay was premature.

During a jury trial for a slip and fall in a commercial parking lot, the defendants tendered an expert to give opinion evidence on winter maintenance standards.

The plaintiff opposed the qualification.

Following a Mohan voir dire, the court found that the proposed expert had acquired special knowledge in winter maintenance through his post-graduate training and extensive work experience.

The court qualified the witness as an expert, noting that any deficiencies in his training compared to the plaintiff's expert went to weight rather than admissibility.

During a jury trial for a slip and fall in a parking lot, the defendants (the property owner and the winter maintenance contractor) conditionally settled their crossclaims.

The plaintiff sought disclosure of the settlement agreement.

The court ordered the agreement disclosed to the court and then to the plaintiff, finding that it altered the adversarial landscape.

Consequently, the court ruled that the defendants were no longer adverse in interest and prohibited defence counsel from asking leading questions during the cross-examination of each other's witnesses, except on narrow issues where adversity remained.

The plaintiff in a slip and fall action moved to strike the jury following the defendants' opening statements, arguing that defence counsel made improper arguments, impugned plaintiff's counsel, and injected personal opinions.

The court reviewed the impugned statements and found that while some comments crossed the line into argument and unfairly bolstered credibility, the transgressions were minimally prejudicial.

The court dismissed the motion to strike the jury, concluding that a short curative instruction would adequately address the issues without compromising the plaintiff's right to a fair trial.

In a slip and fall action arising from an incident in a grocery store parking lot, the parties raised evidentiary issues regarding the admissibility of business records before the commencement of a jury trial.

The plaintiff sought to introduce Ministry of Transportation records regarding weather and road conditions, while the defendants sought to introduce daily work sheets to establish their snow and ice clearing system.

The court found both sets of records to be logically relevant to the live issues of prevailing weather conditions and the defendants' response.

The court admitted both sets of records, noting that any potential prejudice from the MTO records could be addressed with a limiting instruction to the jury.

The plaintiff was injured in a skiing accident and underwent a vocational assessment.

The defendant sought an order requiring the plaintiff to undergo a further assessment by a vocational assessor of its choosing.

The motion judge granted the order, and the Divisional Court upheld it.

On appeal, the Court of Appeal affirmed that section 105 of the Courts of Justice Act does not occupy the field, and the Superior Court retains inherent jurisdiction to order an assessment by someone who is not a 'health practitioner' to ensure fairness and justice between the parties.

In a personal injury action arising from a motor vehicle accident, the plaintiffs brought a motion to exclude surveillance evidence obtained by the defendant.

The defendant had disclosed a surveillance video from October 2012 well in advance of trial but failed to disclose additional surveillance from 2013 and 2014 until shortly before trial, contrary to an undertaking given at discovery.

The court held that although the defendant breached its disclosure obligations, the October 2012 surveillance could still be admitted as substantive evidence and for impeachment because it had been disclosed long before trial and both parties’ experts had reviewed it.

The later surveillance footage could not be relied upon by the defendant but remained available for the plaintiffs’ use.

Any potential prejudice could be addressed through supplemental expert reports or an adjournment.

The plaintiffs brought a motion seeking court approval of a settlement in a personal injury action involving a minor plaintiff arising from a motor vehicle collision.

The settlement resolved claims against several municipal defendants responsible for roadway maintenance and resulted in dismissal of the action, including related third party claims.

Third parties opposed the settlement on the basis that they wished the municipality to remain in the litigation, but the court held they had previously chosen not to advance a third party claim and had provided no sufficient basis to reject the settlement.

After reviewing the supporting materials and affidavits, the court concluded the settlement was reasonable and in the best interests of the minor plaintiff.

The settlement was therefore approved and the action dismissed as against the settling parties.

The plaintiffs in two separate personal injury actions appealed interlocutory orders requiring them to undergo examinations by non-medical practitioners (a vocational assessor and a chiropractor).

The plaintiffs argued that section 105 of the Courts of Justice Act constitutes a complete code for such examinations, precluding orders for non-medical practitioners.

The Divisional Court held that section 105 does not completely occupy the field and that a Superior Court judge has inherent jurisdiction to order an examination by a non-medical practitioner where necessary to ensure trial fairness and justice.

Applying this test, the court dismissed the appeal in the Ziebenhaus action, finding the vocational assessment was necessary to meet the plaintiff's case.

However, the court allowed the appeal in the Jack action, finding the defendants failed to demonstrate that the functional abilities evaluation was necessary.

Applicants brought an application challenging the validity of sections 3, 4, and 5 of the 2002 Minimum Maintenance Standards for Municipal Roadways under the Municipal Act, 2001, asserting that the regulation was ultra vires.

The challenge arose in the context of a personal injury action alleging negligent winter road maintenance.

After the Court of Appeal’s decision in Giuliani limited the scope of the regulation and the municipality withdrew reliance on it as a defence, the respondents moved to strike the application as moot.

The court held that no live controversy remained between the parties and declined to exercise discretion to hear the matter, emphasizing judicial economy and the limited relevance of the impugned provisions following amendments and appellate guidance.

The plaintiff, a cyclist with significant pre-existing psychological and cognitive vulnerabilities, was struck by a police cruiser while riding through a pedestrian crosswalk at night.

The court apportioned liability 60% to the defendant police officer and 40% to the plaintiff.

Applying the thin skull rule, the court found the collision exacerbated the plaintiff's pre-existing conditions and caused a mild traumatic brain injury, rendering him completely disabled and requiring 24/7 attendant care.

Total damages were assessed at over $5.2 million, reduced to $3,131,370 after accounting for contributory negligence.

The applicant sought an order requiring the insurer to produce its complete file created after the date she filed her Application for Mediation.

The insurer opposed, arguing the file was protected by litigation privilege and irrelevant as claims handling was complete.

The arbitrator dismissed the motion, finding the applicant failed to establish the relevance of post-mediation documents and upholding the Commission's general presumption that documents created after an Application for Mediation are prepared for the dominant purpose of litigation.

The applicant sought production of the insurer's entire accident benefits file, including post-mediation documents and communications with counsel, arguing the insurer waived privilege by abandoning its position on an insurer examination.

The arbitrator found no factual basis for waiver of solicitor-client privilege.

However, due to concerns about the insurer's compliance with a prior production order and its refusal to particularize claims of privilege, the arbitrator ordered the insurer to serve a detailed Affidavit of Documents for both the pre-mediation and post-mediation periods.