Tom Ozere

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.

Following a jury trial for a motor vehicle accident claim, the plaintiffs were awarded $5,000, a fraction of the $1.5 million claimed.

The defendant had made a Rule 49 offer of $350,000 prior to trial.

The court considered the factors under Rule 57.01 and the impact of the Rule 49 offer.

The court fixed the plaintiffs' costs at $100,000 and the defendant's costs at $200,000, ordering the plaintiffs to pay the net costs of $100,000 to the defendant, less the amount of their judgment.

The defendant brought a threshold motion seeking a declaration that the plaintiff, Catherine McNamee's, claims for non-pecuniary general loss and health care expenses were barred under the Insurance Act, as her injuries did not meet the "permanent serious impairment of an important physical, mental or psychological function" threshold.

The court, after hearing evidence at trial, focused on the issue of causation.

The plaintiff had a significant pre-accident history of alcohol use disorder, depression, and chronic pain.

The court found Ms. McNamee's evidence regarding the severity of the accident and the resolution of her prior injuries to be unreliable.

Preferring the defendant's expert opinion, the court concluded that Ms. McNamee's injuries from the motor vehicle accident had resolved by Fall 2014 and that her subsequent decline in functioning and mental health issues were primarily due to unrelated life stressors and her pre-existing conditions, not the accident.

Therefore, the plaintiff failed to establish causation, and her claims did not meet the statutory threshold.

The defendant's motion was granted.

The defendant brought a threshold motion during a jury trial for a motor vehicle accident, seeking a declaration that the plaintiff's claims for non-pecuniary general damages and health care expenses were barred under the Insurance Act.

The plaintiff had a significant history of pre-existing neck and back pain.

The court found that the plaintiff failed to prove on a balance of probabilities that his current ailments were caused by the subject accident.

Furthermore, even if causation was established, the plaintiff failed to prove that his impairments substantially interfered with most of his usual activities of daily living.

The threshold motion was granted, barring the claims.

This endorsement rules on which questions regarding damages claims (future treatment costs, medication, income loss) for Catherine and John McNamee will be put to the jury.

The court found insufficient evidence to support several of the plaintiffs' claims for future care costs and income loss, declining to put those specific questions to the jury.

The ruling emphasizes the need for precise evidence and medical justification for future care costs and a clear evidentiary foundation for income loss claims to avoid speculation.

The Plaintiffs sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial and an order to abridge time for service of their expert reports.

The Defendant opposed, citing late service and duplication of expert evidence.

The court applied factors for granting leave, emphasizing the "gatekeeper" role of the trial judge and the policy behind s. 12 of the Evidence Act, which applies to all experts offering opinion evidence, including participant experts.

The court found significant duplication among the proposed psychiatric, psychological, and occupational therapy experts and that several reports were served late without adequate justification.

The motion was largely denied, limiting the Plaintiffs to one expert per specialty for opinion evidence and restricting the scope of a physiotherapist's testimony to observations rather than future recommendations for litigation purposes.