T. McCarthy

The plaintiff pedestrian was struck by a left-turning pickup truck while crossing an intersection at night.

The plaintiff suffered a severe traumatic brain injury.

The plaintiff sued the driver, the municipality, and the municipality's electrical contractor, alleging the intersection was in a state of non-repair due to missing streetlights on the median.

The court found the driver 100% liable for failing to ensure the turn could be made safely.

The claims against the municipality and contractor were dismissed, as the intersection had sufficient illumination from other sources and was deemed in a state of repair under the Minimum Maintenance Standards.

Damages of approximately $2 million were awarded against the driver.

Following a jury trial for a motor vehicle accident where the jury awarded $40,000 in non-pecuniary damages, the defendant brought a threshold motion to dismiss the claim.

The court analyzed whether the plaintiff's soft tissue injuries, TMJ dysfunction, and psychological issues were caused by the accident and constituted a permanent serious impairment.

The court found that only the whiplash injury was caused by the accident, while the TMJ and psychological issues were pre-existing or unrelated.

The court concluded that the whiplash injury, although permanent, was not a serious impairment as it did not substantially interfere with the plaintiff's usual activities.

The threshold motion was granted and the claim for non-pecuniary damages was dismissed.

The defendants brought a motion under Rule 59.06(2)(a) to vary a consent order that established a wait-and-see deadline for striking their jury notice due to COVID-19 court capacity limits.

The defendants argued that recent communication from defence counsel in a conflicting criminal jury trial constituted new facts justifying an extension of the deadline.

The court dismissed the motion, finding that the communication did not amount to new facts that could not have been known earlier, and emphasized that courts should rarely vary voluntary consent orders.

The plaintiffs brought a motion to strike the defendant's jury notice due to the COVID-19 pandemic, arguing that further delay of their motor vehicle accident trial would cause prejudice.

The court reviewed the current state of court operations in London and the evolving jurisprudence on striking juries during the pandemic.

Adopting a 'wait and see' approach, the court found it premature to strike the jury notice for a trial scheduled three months away.

The motion was dismissed, but the plaintiffs were granted leave to renew the motion if jury trials are cancelled for the scheduled trial period.

The defendant insurer brought a motion for summary judgment to dismiss the plaintiff's claims for general damages, a catastrophic impairment designation, and income replacement benefits arising from a motor vehicle accident.

The court granted summary judgment dismissing the claims for general damages and catastrophic impairment, finding no evidence to support the bad faith claim and no expert evidence establishing that the plaintiff met the statutory definition of catastrophic impairment.

However, the court dismissed the motion regarding income replacement benefits, finding that conflicting medical evidence about whether the plaintiff's seizure disorder and cognitive decline were caused by the accident or a pre-existing condition created a genuine issue requiring a trial.

During a jury trial arising from a motor vehicle accident, the defendants brought a threshold motion under s. 267.5(15) of the Insurance Act seeking a determination that the plaintiff had not sustained a permanent serious impairment of an important physical, mental or psychological function.

The court reviewed the statutory test and the regulatory criteria under the Ontario Regulations, including the requirements of substantial interference, importance of function, and permanence.

Based on extensive medical evidence diagnosing chronic pain syndrome, orthopedic injuries, and psychiatric conditions including major depressive disorder and somatic symptom disorder, the court found the impairments substantially interfered with employment and daily living.

The court accepted the evidence of multiple treating and expert physicians and rejected the defence medical expert’s opinion as unreliable.

The court concluded the plaintiff met the statutory threshold and was not barred from recovering damages for non‑pecuniary losses.

The defendant moved to transfer a personal injury action from Brampton to Toronto so it could be heard together with related actions arising from the same motor vehicle accident.

The court considered Rule 13.1.02 of the Rules of Civil Procedure and the interests of justice factors governing venue transfer.

Although related Toronto actions had been commenced and consolidated, the court found that transferring the proceeding would significantly delay the trial and prejudice the plaintiff, a foreign resident unable to return home while awaiting trial.

The defendant had also delayed bringing the transfer motion despite knowledge of related proceedings.

The court dismissed the motion and ordered costs to the responding parties.

Following a jury trial for a motor vehicle accident where the plaintiffs were awarded $137,000 plus interest, the court determined costs.

The plaintiffs' recovery exceeded the defendant's offer to settle of $125,000.

The court found the plaintiffs were the successful parties and awarded them partial indemnity costs.

After reducing fees for duplication and disallowing disbursements for experts who did not testify, the court awarded the plaintiffs $322,500 in costs.

During a civil jury trial arising from a motor vehicle accident involving a child pedestrian, the court ruled on the permissible scope of testimony from an accident reconstruction expert.

The plaintiffs sought to elicit opinion evidence concerning alleged deficiencies in the defendant vehicle’s braking system and on driver perception and reaction times.

The court held that Rule 53 of the Rules of Civil Procedure requires expert reports to clearly state the opinions being advanced and their factual bases, and an expert cannot introduce a new field of opinion not articulated in the report.

Because the expert’s reports did not opine that the brake condition contributed to the collision, such testimony would improperly expand the report.

The court also barred additional human factors opinion evidence as duplicative of testimony already provided by a qualified human factors expert.

The defendant moved to exclude examination for discovery transcripts on the basis that he did not have an interpreter during the first discovery and that some answers during the second discovery were given in broken English.

The moving party argued the transcripts were unreliable and unfair to use at trial.

The court held that the obligation to arrange for an interpreter rests with the party being examined and noted the defendant had an opportunity during the second discovery to correct earlier answers.

The court found that although the defendant would testify at trial through an interpreter, the discovery transcripts should not be struck.

Instead, the court directed that proposed read‑ins be reviewed to ensure fairness in light of the language issues.

During a jury trial arising from a motor vehicle accident involving a child pedestrian, the defendants moved for a mistrial following the plaintiffs’ opening address.

The court had previously ruled that a police mechanic could not provide expert opinion evidence regarding the condition or effect of the vehicle’s brakes.

In the opening address, plaintiffs’ counsel suggested that the defendant driver’s brakes were in an unsatisfactory condition and invited the jury to infer that this contributed to the accident, despite the absence of expert evidence supporting such a theory.

The court held that the opening address improperly contained argument, inaccurate statements about the police investigation, and suggestions that the jury act as enforcers of societal rules.

Because the comments invited the jury to draw conclusions unsupported by admissible evidence and could not be cured by a corrective instruction, a mistrial was declared.

During a civil jury trial arising from a pedestrian motor vehicle accident involving a child, the defendants moved for a mistrial after the plaintiffs’ counsel delivered an opening address containing alleged misstatements of law and improper argument.

The court found that counsel repeatedly misstated the reverse onus under the Highway Traffic Act by suggesting that all defendants bore the burden of disproving negligence, improperly argued factual conclusions regarding vehicle brake defects without supporting expert evidence, and displayed discovery transcript excerpts suggesting an admission of negligence by one defendant.

The court held that the discovery excerpt was misleading, potentially inadmissible, and taken out of context, particularly given language barriers during the examination for discovery.

Considering the cumulative prejudicial impact of the opening remarks, the court concluded that corrective instructions would not sufficiently remedy the prejudice to the jury.

A mistrial was therefore declared.

The plaintiffs in a motor vehicle personal injury action involving a child with an alleged brain injury sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial.

The court considered factors governing leave to call additional experts, including necessity, duplication of evidence, fairness between parties, and proportionality.

While acknowledging the complexity of the medical issues and future care claims, the court emphasized the trial judge’s gatekeeping role and the need to avoid unnecessary or repetitive expert testimony.

Leave was granted for several experts with distinct specialties but denied for others whose proposed evidence lacked a compliant Rule 53 report or would duplicate testimony from other experts.

The court limited the number of occupational therapists who could testify and refused permission for certain proposed witnesses whose opinions were unnecessary or procedurally deficient.