Author Archives: Admin4

http://canlii.ca/t/gm887

[21]           At least ten of the photos appear to have been taken while the Plaintiff was in hospital, immediately following his dirt bike accident on July 23, 2006.

[22]           The Plaintiff was examined for discovery on July 22, 2009.  In the course of that examination, the Plaintiff undertook to provide photographs.

[23]           The photographs were provided to Defendant’s counsel on October 30, 2015.

[24]           On November 10, 2015, Defendant’s counsel was provided with an updated Affidavit of Documents which referred to “colour photographs”.  No description of the photos or what they depict was provided.

[25]           The Defendant submits that the Plaintiff has failed to comply with Rule 30.07, and requires leave to make any use of them in the course of the trial, by virtue of Rule 30.08.  Leave should be denied.

[26]           For his part, the Plaintiff says that he is not in breach of any Rule, having served the photographs 30 days before trial.  I know of no rule governing proceedings in the Superior Court, where documents need only be produced 30 days before trial.  Nor could counsel point me to any such rule.

[27]           The Plaintiff additionally states that, even if he did run afoul of Rule 30.07, then the provisions of Rule 53.08 are engaged, and the Defendant must show prejudice in order for the Plaintiff to be denied leave to have the photographs admitted into evidence.

[28]           I find that the Plaintiff failed to produce the photographs “in compliance with” the Rules.

[29]           Firstly, the Plaintiff was under the obligation to produce the photographs, which appear to certainly have been in existence prior to the examination for discovery, within a reasonable period of time following the examination.

[30]           Secondly, the nature and subject of the photographs should have been described in an Affidavit of Documents delivered within a reasonable time after the Plaintiff became aware that his earlier Affidavit(s) of Documents made no reference to photographs.

[31]           That being said, in order to deny the leave sought, the Defendant must establish prejudice.  There is no evidence of any prejudice caused to the Defendant as a result of the timing of the disclosure of the photos.  The only prejudice is with regard to the use of the photographs during counsel’s Opening Statement, which I have already dealt with.

Conclusion

[32]           The Plaintiff’s motion for leave to make use of photographs during his Opening, is denied.

[33]           The Plaintiff’s motion for leave to make use of the photographs during the evidentiary portion of the trial is granted, subject to authentication of the photographs by way of the evidence of both the Plaintiff and whoever took the photos.

http://canlii.ca/t/gm888

Number of Experts

[1]               The Plaintiff seeks an Order limiting the parties to one expert each in the area of emergency medicine.

[2]               The Plaintiff says that he will be relying on the evidence of one expert witness only dealing with the standard of care in the assessment, cleaning and closing of the Plaintiff’s wound, and the Defendant should likewise be limited to one such expert, for the following reasons:

(a)   The defence experts in emergency medicine all have similar qualifications;

(b)   The defence experts all have the same opinion;

(c)   It is not necessary to have more than one expert in the same area;

(d)   Allowing more than one expert in the same area will unduly lengthen the trial, and increase trial preparation costs; and

(e)   Allowing more than one expert could confuse the jury.

[3]               The Defendant resists this limit on his right to call up to three expert witnesses, and advised that he will be calling two, not three experts in emergency medicine:  One who is an academic, and the other who is a practitioner.

[4]               The Defendant submitted that:

(a)   Because he will be calling fewer than three expert witnesses in the trial, there is no basis for imposing a limit on him.  He is well within the Evidence Act limitation.

(b)   Although the conclusion of both of his experts is the same, their qualifications are not: one is primarily an academic and the other is primarily a practitioner. They will be examined differently, one from the other.

(c)   Depending on how the Plaintiff’s case develops, he may ultimately only call one of his experts; he should not have to commit to that at this stage of the proceeding.

(d)   The leading of evidence from both of the Defence experts will not involve any significant lengthening of the trial.

[5]               The Plaintiff relies on case law developed in regard to Section 12 of the Evidence Act:

Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without leave of the judge or other person presiding.

[6]               All of the cases provided were cases where parties sought leave to call more than three experts.  The following principles emerge:

Longer trials caused by calling unnecessary experts use up scarce resources and deny early trials to other litigants.  Where the proposed number of experts to be called exceeds three, and it is not necessary for a party to call all of its medical experts in order to fairly present its case, leave to call more than three will be denied.

Gorman v. Powell [2006] O.J. No. 4233.

Where a party seeks to call more than three witnesses at the trial, and there is no need to call more than one in any given issue, then leave will be denied.

Goodwin (Litigation guardian of) v. Olupona [2010] O.J. No. 3919.

Simply because an expert has authored a report that complies with the requirements under theRules of Civil Procedure, does not automatically entitle a party to call that individual at trial.  The evidence must be necessary and not repetitive of other testimony from other experts.

Hoang (Litigation guardian of) v. Vicentini [2012] O.J. No. 810.

[7]               The court does have discretion to exclude otherwise admissible evidence.  The test is not that set out in Section 12 of the Evidence Act, but rather is whether the probative value of the evidence is outweighed by its prejudicial effect.

__________________________________________________________________

Khan/Yousaf and Dominion  [+] Arbitration, 2015-11-17, Reg 403/96. Motion FSCO 4694.  https://www5.fsco.gov.on.ca/AD/4694

The Applicants have filed a motion requesting an interim Order for funding of the catastrophic (“CAT”) assessment rebuttal reports, dated November 17, 2004 (“the assessments”) for both Applicants in the amount of $26,352.00 each and their expenses of the motion.

I frame the issues in this motion as follows, taking into consideration the parties’ respective descriptions of the issues:

1. Is either of the Applicants entitled to interim benefits or interim expenses pursuant to subsection 279(4.1) or subsection 282(1.1) of the Insurance Act?
2. Should the Applicants be permitted to have the reports entered into evidence, in their entirety, at the arbitration hearing?
3. Are the Applicants entitled to their expenses of the motion?

Result:

1. The Applicants are not entitled to interim benefits or interim expenses.
2. The question of whether or which of the assessments dated November 17, 2014 should be admitted into evidence at the arbitration is best left to the hearing arbitrator.
3. There is no Order as to expenses at this time.

Are the Applicants entitled to interim benefits or interim expenses?

Background

On July 9, 2012 an OCF-18 treatment plan for CAT impairment determination evaluations, completed by West Side Diagnostics in the amount of $26,352.00 and an OCF-19, completed by Dr. Nguyen, chiropractor, was submitted to Dominion, presumably for both Applicants.

Dominion denied the OCF-18 and arranged for a CAT assessment for both of the Applicants.  The report of North York Rehabilitation Centre, dated January 3, 2013, regarding Mr. Khan, found him to be not catastrophically impaired.[3] The report contained assessments by an orthopaedic surgeon, a psychologist and an occupational therapist, as well as a Dr. Platnick who described himself as physician. I assume a similar assessment was done of Ms. Yousef with the same result. I was not provided with a copy of that report.

 https://www5.fsco.gov.on.ca/AD/4694

The Applicants have filed a motion requesting an interim Order for funding of the catastrophic (“CAT”) assessment rebuttal reports, dated November 17, 2004 (“the assessments”) for both Applicants in the amount of $26,352.00 each and their expenses of the motion.

I frame the issues in this motion as follows, taking into consideration the parties’ respective descriptions of the issues:

1. Is either of the Applicants entitled to interim benefits or interim expenses pursuant to subsection 279(4.1) or subsection 282(1.1) of the Insurance Act?
2. Should the Applicants be permitted to have the reports entered into evidence, in their entirety, at the arbitration hearing?
3. Are the Applicants entitled to their expenses of the motion?

Result:

1. The Applicants are not entitled to interim benefits or interim expenses.
2. The question of whether or which of the assessments dated November 17, 2014 should be admitted into evidence at the arbitration is best left to the hearing arbitrator.
3. There is no Order as to expenses at this time.

Are the Applicants entitled to interim benefits or interim expenses?

Background

On July 9, 2012 an OCF-18 treatment plan for CAT impairment determination evaluations, completed by West Side Diagnostics in the amount of $26,352.00 and an OCF-19, completed by Dr. Nguyen, chiropractor, was submitted to Dominion, presumably for both Applicants.

Dominion denied the OCF-18 and arranged for a CAT assessment for both of the Applicants.  The report of North York Rehabilitation Centre, dated January 3, 2013, regarding Mr. Khan, found him to be not catastrophically impaired.[3] The report contained assessments by an orthopaedic surgeon, a psychologist and an occupational therapist, as well as a Dr. Platnick who described himself as physician. I assume a similar assessment was done of Ms. Yousef with the same result. I was not provided with a copy of that report.

http://canlii.ca/t/gm795

OVERVIEW

[1]         Late in the afternoon on New Year’s Eve 2001, the appellant, Janice Martin-Vandenhende, left her place of work and drove her Toyota Camry south on Erie Street, a two-lane roadway in the town of Ridgetown.  The respondents, Peter Myslik and his father, Edward Myslik, were behind her in a GM pickup truck.  Peter Myslik was driving.  His father was in the passenger seat.

[2]         Ms. Martin-Vandenhende realized she had left something behind.  She decided to turn left into a private driveway to turn around and go back to work to retrieve the item.  As she started the turn, the Myslik vehicle came up from behind and collided with the left side of the back of her car.

[3]         Ms. Martin-Vandenhende was injured and taken to hospital.  No charges were laid.

[4]         The amount of damages has been settled.  Liability remains in issue.

[5]         During the 14 years since the accident, two trials have taken place to determine responsibility for the collision.  The first trial judge, Thomas J., held that Peter Myslik was 100 percent at fault. The Mysliks appealed.  The appeal was allowed and a new trial ordered. The second trial judge, Patterson J., apportioned 50 percent liability to both parties.

[6]         Ms. Martin-Vandenhende appeals.  She asks this court to overturn the trial judge’s finding of contributory negligence against her on the grounds that she neither breached the standard of care nor caused the accident.   Alternatively, Ms. Martin-Vandenhende seeks to reduce her degree of responsibility to between five to ten percent.

[7]         Based on the following analysis, I would allow the appeal.  I would set aside the judgment and hold Peter Myslik 90 percent responsible for the collision and Ms. Martin-Vandenhende 10 percent responsible.

 https://www5.fsco.gov.on.ca/AD/4695

Issue:

The Insurer, State Farm Mutual Automobile Insurance Company requests an adjournment of the hearing scheduled to commence on November 17-20 and 24-27, 2015. The proposed hearing dates are August 22-26, and 24-27, 2016. The Applicants Nicole Flood and Patrick Flood oppose the adjournment….

….The Insurer submits that the proposed adjournment is unlikely to cause the Applicants significant hardship. I disagree. Counsel for the Applicants advises that the assistive devices treatment plans stem from 2011 and the income replacement benefit claim from 2010. I find that the nature of the claims being advanced—assistive devices and income replacement benefits— suggests that the Applicants may well experience hardship if they have to wait for that length of time….

….My greater concern is the failure to take the steps to have the issue of home modifications added to the agenda of issues to be arbitrated. Counsel for the Applicants submitted that the issue has been added. Unfortunately, there is nothing in either arbitration file to support this submission, and I find that it has not been added. This is because he has not taken the steps outlined in the pre-hearing report in relation to Mr. Flood at pages two and three.

As I understand it, the claim being advanced for home modifications on behalf of both Applicants is approximately $323,000. From a monetary standpoint it is easily the largest claim to be arbitrated. The evidence with respect to that claim will overlap with the claims for assistive devices and perhaps with the evidence in relation to income replacement benefits.  The author of the treatment plans for home modifications and for assistive devices is the same person. If the issue is not added, she will likely be called to testify at a second hearing.

For reasons of judicial economy, I find that the home modification claim should be heard at the same time. Adding that issue will result in the quickest, least expensive and just determination of the claims. Counsel for the Insurer has advised that her client consents to the addition of this claim. Thus for reasons of judicial economy, the convenience of at least one witness, and a lack of procedural readiness, the hearing should be adjourned if the Applicants fail to take the necessary steps.