Chapin v. Bennett, 2014 ONSC 1179 (SCJ)
In this recent decision, Mr. Justice McCartney considered whether the amendment of a Statement of Claim in an FLA action to include damages for PTSD (known generally as nervous shock). The defendants opposed the amendment, arguing that the limitation period had expired since the claim for PTSD was a new cause of action in personal injury, rather than an FLA claim.
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The Paralympic games have officially begun! Canadian athletes will again take to the ice and slopes in Sochi, hoping to bring back the gold to Canada. The Paralympic sports that Canadians will be partaking in are: alpine skiing, biathlon, cross-country skiing, para-snowboarding, wheel chair curling and the all-time favourite, sledge hockey. Read more of this article »
Economic loss calculations can be seriously altered by a wave of new retirement data
By: Dale Orlando, McLeish Orlando LLP
Published in: The Lawyers Weekly Feb. 7, 2014 issue
In a typical personal injury case, there are a number of approaches to developing the theory of economic loss and a number of assumptions are made as part of that theory. In cases where a person is unlikely to return to work or has returned to work but is likely to have to retire earlier than otherwise would have been the case, a major part of the theory revolves around the person’s expected retirement age, but for the accident. While each case turns on its own facts, to some extent both plaintiff counsel and defence counsel will base their theories on a presumed retirement age. Many defence theories are based on an outdated notion that people are embracing the idea of Freedom 55 and retiring earlier than in previous generations. The recent data on this point clearly shows an upward trend in retirement age. There are two very good reasons for this trend; people are living longer and saving less for retirement and people simply cannot afford to retire. Read more of this article »
This is the final post in our series of “How to Best Leverage the Use of Surveillance and Investigation in Court”. In the previous posts we discussed obligations regarding the surveillance and investigative material before , during and after examinations, and before trial. In this blog post you will learn the final steps of using surveillance at trial.
USE OF SURVEILLANCE AT TRIAL
1. Using Privileged documents as Substantive Evidence
If a defendant wishes to use surveillance or investigative material as substantive evidence at trial, the defendant must comply with Rule 30.09, which sets out strict procedural requirements. Read more of this article »
Last week we looked at the defendants disclosure obligations regarding surveillance and investigative material where a claim of privilege has been made, in this weeks post we will look into using surveillance at the examination for discovery, after discovers and before trial.
II) At the Examination for Discovery
In order to obtain the particulars of surveillance before the plaintiff’s discovery, the plaintiff should endeavor to be the first to deliver a notice of examination. By doing so, the plaintiff can take advantage of Rule 31.04(3). This rule states that the party who first serves a notice of examination “may examination first and complete the examination before being examined by another party, unless the court orders otherwise”. Read more of this article »
Good news for bike safety advocates; a new uniform system for data collection allows for Police to better track ‘dooring’ incidents.
As of November 5, 2013 a new records-management system has been implemented which allows Police to track the number of ‘dooring’ incidents across the City of Toronto. Prior to this new system and in light of the definition of collision changing to exclude ‘dooring incidents’, it was difficult for Police to collect ‘dooring’ information as there was no uniform manner to track ‘dooring’ incidents.
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This is Part 1 of a 3 part series on how to best leverage the use of surveillance and investigation in court through a plaintiff’s perspective.
Surveillance of an injured plaintiff is a common tactic used by defense counsel to defend personal injury actions. More recently, in addition to traditional video surveillance, on-line investigations are now being conducted of plaintiffs. Surveillance and on-line investigation is conducted at a variety of times throughout the litigation and it is impossible for a plaintiff’s lawyer to predict exactly when it will be done. This blog will discuss the defendant’s pre-trial disclosure obligations as it relates to video surveillance and on-line investigation, the use of this material at trial and helpful strategies plaintiff’s counsel can employ to obtain the particulars of this investigative material in advance of trial.
DISCLOSURE OF SURVEILLANCE
Below is a discussion of the defendant’s disclosure obligations regarding surveillance and investigative material where a claim of privilege has been made.
I) Before examinations for discovery
The term “document” is defined broadly by Rule 30.01 of the Rules of Civil Procedure to include “a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form”. As a result, the rules governing disclosure and production of documents apply equally to surveillance and investigative material.
Rule 30.02(1) requires a party to disclose “every document relevant to any matter in issue in an action…whether or not privileged is claimed in respect of the document.” Rule 30.02(2) imposes a further requirement that all relevant documents be produced unless privileged is claimed over the document.
Rule 30.03 requires every party to an action to serve an affidavit of documents disclosing “to the full extent of the party’s knowledge, information, and belief” all documents that are (a) relevant to any matter in issue in the action and (b) are or have been in the party’s possession, control or power. Any investigative reports and surveillance obtained before discovery must be disclosed in the defendant’s affidavit of documents. In most cases, the defendant will claim privilege over these documents, such that they must be listed in Schedule “B”.
To learn if surveillance or on-line investigation has been undertaken before discovery, a plaintiff should always require a defendant to deliver a sworn and certified affidavit of documents, or at a minimum, a draft affidavit of documents, in advance of examinations for discovery. Sometimes a defendant will use boiler plate wording to set out the documents under Schedule “B”. If there is any concern over what may be contained in Schedule “B”, counsel may insist on a particularized Schedule “B”, with a list and description of every document together with the grounds for the claim of privilege.
As internet investigation of the plaintiff is now being conducted by the defendant, counsel should be aware that the disclosure obligations under the Rules above include any electronic documentation, including those obtained from the internet. While an investigator’s report which may accompany this material would satisfy a claim for privilege, the actual documents obtained (ie. photographs from Facebook or postings from twitter) ought to be listed in Schedule “A”, as these documents would not satisfy the elements to establish litigation privilege. In Leduc v. Roman, the court clearly held that online content is “data and information in electronic form” producible as “documents” under the Rules. As a result, relevant documents obtained from the internet must be identified in the defendant’s affidavit of documents.
Come back next week when we discuss “At the Examination for Discovery”
  CanLII 6838 (Ont.S.C.)
New guidelines reporting symptoms and treatment of post-concussion syndrome have been released which represent a positive step towards determining the effects of concussion, John McLeish, Partner of McLeish Orlando talks to Advocate Daily about what this means for diagnosis and treatment of post-concussion syndrome . Click here to read the article.
Rikin Morzaria, Partner at McLeish Orlando talks to Advocate Daily about steps The Ontario Trial Lawyers Association is taking in developing standards of ethical conduct within the personal injury bar. Click here to read the article.
This morning McLeish Orlando announced their donation of 500 turkeys to help the Daily Bread Food Bank and their mission to fight against hunger here in our city.
Follow @DailyBreadTO to learn more about the fight against hunger and tune into City TV
John McLeish and Patrick Brown with Frankie Ferragine, Breakfast Television
John McLeish, Alison Burrison, Gail Nyberg, ED, Daily Bread Food Bank and Patrick Brown
McLeish Orlando would like to wish everyone a safe and happy holiday season and best wishes for 2014.