Troy H. Lehman

During a trial on liability for injuries sustained by the plaintiff while pitching in a school softball tournament, the plaintiff brought a motion to exclude the expert evidence of the defendant school board's proposed expert on student physical health and safety.

The proposed expert opined that the standard of care was strictly defined by the OPHEA Safety Guidelines, which did not mandate face masks for pitchers.

The court excluded the expert evidence, finding it was not necessary as the jury could understand the facts and assess the foreseeable risks without her assistance.

Furthermore, the court found the evidence would likely distort the fact-finding process because the expert acted as an advocate, rigidly adhered to an incorrect legal standard, and offered opinions beyond her expertise.

The defendant, Simcoe Muskoka Catholic District School Board, brought a motion to bifurcate the issues of liability and damages in a personal injury action, seeking to have liability tried first.

The plaintiffs opposed the motion.

The court dismissed the motion, finding that the defendant failed to demonstrate that bifurcation would certainly dispose of issues, shorten proceedings, or result in substantial cost savings.

The court also found that the issues were not clearly severable due to overlap in evidence and witnesses, and that bifurcating a jury trial would unduly prejudice the plaintiffs, given the right to a single jury and the practical difficulties of separate jury trials.

The plaintiffs moved to strike the jury in a motor vehicle collision trial, alleging a breach of the rule in Browne v. Dunn by the defence.

The defence cross-examined the plaintiffs' medical experts on an alleged inconsistent symptom (fluid leaking from the ear) reported by the plaintiff to the Mayo Clinic, without having put this specific inconsistency to the plaintiff during his cross-examination.

The court found a serious breach of the Browne v. Dunn rule, which impaired trial fairness and the jury's ability to assess credibility.

The court determined that neither a correcting instruction nor recalling the plaintiff would remedy the damage, and therefore granted the motion to strike the jury.

Following a high-speed rear-end collision that propelled the plaintiff's vehicle into a rollover in a ditch, the court found the plaintiff sustained an mTBI, post-concussion syndrome, dizziness and balance-related impairments, adjustment disorder, and aggravated knee injuries.

The defence theory that the plaintiff fabricated or exaggerated symptoms was rejected, and the court strongly preferred the plaintiff's treating and vocational experts over the defence neuropsychiatric and neuropsychological evidence.

Applying the but for causation test, the court held the collision caused the plaintiff's permanent impairments and rendered him unemployable in the film industry or any competitive employment.

The plaintiff recovered general damages, past and future income loss, future care costs, special damages for treatment at the Mayo Clinic, and the spouse recovered damages under s. 61(2)(d) of the Family Law Act.

The applicant sought dispute resolution for the denial of medical cannabis expenses to treat psychological impairments, including PTSD, arising from a motor vehicle accident involving his family.

The respondent denied the expenses, arguing the cannabis was for pre-existing conditions and recreational use.

The Tribunal found the applicant met the burden of proving the accident caused the psychological impairments and that the prescribed medical cannabis was reasonable and necessary.

The applicant was awarded $20,067.67 for the medical cannabis and interest, but the claim for an award for unreasonably withheld payments was dismissed.

Following a four-week trial where the plaintiff was awarded over $7 million for a traumatic brain injury sustained after jumping from a moving school bus, the court determined the costs payable by the defendant.

The court awarded partial indemnity costs up to the date of the plaintiffs' offer to settle, and substantial indemnity costs thereafter.

The court adjusted the 2005 Costs Grid for inflation to determine appropriate hourly rates for counsel.

In assessing disbursements, the court reduced several expert witness fees because the plaintiffs failed to provide sufficient information regarding the experts' hourly rates and time spent.

The court also disallowed the premium for adverse costs insurance, finding it was not a compensable disbursement as it did not advance the litigation.

Total costs of $741,266.08 were awarded to the plaintiffs.

The plaintiff suffered a severe traumatic brain injury in a multi-vehicle highway collision.

He lost control of his vehicle after being cut off by an unidentified driver, struck the median, and was subsequently T-boned by the defendant's vehicle.

The court found the unidentified driver 70% liable and the defendant 30% liable for following too closely.

The plaintiff was awarded over $3.2 million in damages, primarily for future care costs.

The plaintiff's claim against his own insurer for unidentified motorist coverage was dismissed because the identified defendant was found partially liable.

The plaintiff in a motor vehicle accident case moved to admit his out-of-court statements to police for substantive use, as he suffered from post-traumatic amnesia and could not testify to the events.

The court admitted the statements under the principled approach to hearsay, finding them necessary and sufficiently reliable, corroborated by an independent witness.

The court also excluded the investigating officer's written commentary in the accident report, ruling it was inadmissible opinion evidence beyond the officer's expertise.

The plaintiff in a motor vehicle accident action moved to admit several 911 calls into evidence under the principled approach to hearsay.

The plaintiff suffered a head injury and had no memory of the collision, and the callers were either unavailable or had impaired memories, establishing necessity.

The court found the calls possessed threshold reliability as they were made contemporaneously with the events to emergency services without motive to fabricate.

The motion was granted, and the 911 calls were ruled admissible.

The defendant brought a motion for summary judgment seeking dismissal of a personal injury action arising from a motor vehicle collision.

The defendant argued that the plaintiff’s prior conviction under the Highway Traffic Act for failing to yield the right of way precluded the civil claim and resolved the issue of liability.

The court held that the offence proceeding determined only whether the plaintiff failed to yield and did not address the manner of driving by the defendant.

As issues such as speed, passing behaviour, and whether the defendant had a last clear chance to avoid the collision remained unresolved, genuine issues requiring a trial existed.

The motion for summary judgment was therefore dismissed.

The plaintiff sought a determination before trial on whether s. 2 of O. Reg. 347/13, which limits attendant care benefits provided by family members to the amount of their economic loss, applied where the motor vehicle accident occurred before the regulation came into force but the claim for attendant care was made afterward.

The court considered the evolution of the Statutory Accident Benefits Schedule and the Court of Appeal’s interpretation in Henry v. Gore Mutual Insurance Co. The court held the regulation constituted a substantive change to the law rather than a clarification and interfered with vested contractual rights under the insurance policy.

Because the regulation was silent on temporal application and no clear legislative intent to apply it retrospectively was demonstrated, the presumption against retrospectivity applied.

The amendment therefore did not apply to accidents occurring before February 1, 2014.

The moving defendants sought summary judgment to dismiss the plaintiffs' negligence claim against the defendant driver.

The plaintiff was a passenger in the defendant's vehicle when an oncoming vehicle crossed the centre line, creating an emergency.

The defendant steered left to avoid a collision, but the oncoming vehicle swerved back, resulting in a head-on collision.

The court applied the 'full appreciation test' and the 'agony of collision' principle, concluding that the conflicting expert evidence and the factual determination of whether the defendant's evasive action was reasonable in the circumstances required a trial.

The motion for summary judgment was dismissed.

The appellant landlord appealed a decision finding that an implied term of a commercial lease granted the respondent bank access to parking spaces via the landlord's laneway.

The Court of Appeal dismissed the appeal, holding that the application judge's finding was supported by ample evidence and was not a palpable and overriding error.

The court also rejected the appellant's res judicata argument, noting that prior litigation did not concern the interpretation of the lease.

Leave to appeal the substantial indemnity costs award was refused, as the application judge's finding of malevolent conduct justified the scale.

The moving party requested a reconsideration of the Court of Appeal's judgment released on November 16, 2005.

The Court agreed to hear oral submissions on the request.

The Court ordered that the judgment be temporarily stayed pending the disposition of the reconsideration motion, allowing the endorsement to be registered on the title of the property in issue.

The appellants appealed a decision granting the respondent specific performance of a right of first refusal contained in a charge on a farm property.

The application judge had found that the right of first refusal survived the balance due date of the charge.

The Court of Appeal allowed the appeal, holding that the application judge erred in interpreting the term of the charge.

The Court concluded that the right of first refusal expired on the balance due date and was not binding when the property was subsequently offered for sale.

The appellants leased summer resort lots within Rondeau Provincial Park from the Crown.

The leases expressly restricted the use of the premises to recreational purposes and stated that the Tenant Protection Act, 1997 did not apply.

The appellants appealed a decision of the Ontario Rental Housing Tribunal, arguing that the Act bound the Crown by necessary implication.

The Divisional Court dismissed the appeal, holding that the Act does not bind the provincial Crown and that the cottages do not constitute residential units within the meaning of the Act.

The appellant obstetrician appealed a trial judgment finding him liable for negligence in the delivery of the respondent's child.

The trial judge found that the appellant fell below the standard of care by improperly using forceps, which caused injuries to the respondent's uterus, and by negligently suturing the injuries, which occluded her ureter.

The Court of Appeal dismissed the appeal, holding that the trial judge made no palpable and overriding errors in his factual findings and properly relied on the evidence of the respondents' expert.

The appellant insurer appealed a summary judgment granting the respondent mortgagees coverage under a fire insurance policy after the mortgaged property was destroyed by fire.

The mortgagors had vacated the property, and the mortgagees took control of it but failed to notify the insurer of the vacancy.

The Court of Appeal held that while the vacancy exclusion did not apply to the mortgagees due to the mortgage clause, Statutory Condition 4 did apply.

The mortgagees' actions in taking control of the vacant property constituted a material change in risk within their control and knowledge.

Their failure to notify the insurer voided the policy.

The appeal was allowed and the actions dismissed.