Gilbert v. South et al., 2014 ONSC 3485
Following a trial in which the plaintiff recovered damages for future care and housekeeping, the defendant brought a motion for an order that the plaintiff hold future accident benefits monies received in trust and repay them to the defendant, or in the alternative, an order assigning to the defendant the plaintiff’s rights to “certain future Statutory Accident Benefits”. Mr. Justice Leach dismissed the defendant’s motion for a number of reasons. First, he found that there was not “patently clear” evidence of the plaintiff’s entitlement to future accident benefits. Read more of this article »
Seif v. City of Toronto, 2014 ONSC 2983 This was a motion for summary judgment brought by the City on the basis that the plaintiff failed to provide notice of her claim within 10 days of her accident as required by s. 42(6) of the City of Toronto Act, 2006. The plaintiff fell on August 19, 2011 on a City sidewalk. She was treated and released from hospital the same day. She returned to the scene one week after the incident with her husband and took note of a gap on the sidewalk where she had tripped. She sent a notice letter through her lawyers on December 21, 2011. Read more of this article »
Dickie v. Minett, 2014 ONCA 265 (C.A.) (CanLII)
This decision considered where a court can appropriately draw an inference of negligence from circumstantial evidence. The defendant extracted the plaintiff’s wisdom tooth. During the course of the procedure, the plaintiff’s jaw was fractured. Read more of this article »
Patrick Brown recently presented at The Oatley McLeish Lecture Series: Guide to Motor Vehicle Litigation and presented on the Top Tort Cases of the Year. AdvocateDaily sat down with Patrick and discussed the important decisions over the last 12 months, one being the disclosure of Facebook profiles. To read more of this article visit AdvocateDaily.com by clicking here.
On November 26, 2010 our client, Mr. Marcus, suffered serious personal injuries when he fell on a TTC bus at the age of 89. Mr. Marcus applied for and received statutory accident benefits from TTC Insurance, including an attendant care benefit. He also sought a determination of catastrophic impairment (“CAT”). Read more of this article »
Prior to Jan. 1, 2010, the power to bifurcate a civil trial was not conferred by any statute or found under the Rules of Civil Procedure, but was based on the court’s inherent jurisdiction to control its own process, writes Shaw. The amendment then came into force, changing the rules so they included a specific provision for separate hearings, which reads: “With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.” Read more of this article »
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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Settlement privilege is a long-standing concept that wraps a protective veil around the efforts that litigants make to settle their disputes. It does so by ensuring that communications made to negotiate a settlement are confidential and inadmissible at trial. With these assurances, parties can negotiate freely without worrying that the negotiations will later come back to haunt them. Read more of this article »
When is a treating Doctor an Expert under Rule 53.03? And what constitutes expert opinion?
In Westerhof v. Gee, the Divisional Court considered the requirements which apply to treating health care providers who are asked to give expert evidence in Court on behalf of a patient. The Court also considered what evidence treating health professionals can provide as fact witnesses, and at what point this evidence crosses over into the territory of expert evidence.
Previous lower court decisions, such as McNeill v. Filthaut, Kuznierz v. The Economical Mutual Insurance Company, and Slaght v. Philips), had focussed on the relationship of the health professional with the client to determine whether the health professional was required to comply strictly with Rule 53.03 of the Rules of Civil Procedure.
Rule 53.03 requires experts to prepare a report detailing their experience, area of expertise and outlining their opinion. In addition, Rule 53.03 also requires an expert to sign an Acknowledgment of Expert’s Duty which includes the following paragraph: “I have been engaged on behalf of the plaintiff to provide evidence in the above-noted court proceeding.” Also, an expert must be qualified as to his expertise before he will be permitted to give expert evidence. In the absence of any of these requirements, the expert is not permitted to give expert evidence at trial.
The decisions before the Divisional Court’s decision in Westerhof v. Gee suggested that treating health care professionals were not required to adhere strictly to the requirements of Rule 53.03, whereas experts hired for the purpose of the litigation, or “hired gun” experts were required to meet all conditions of Rule 53.03 in order to be permitted to testify.
In contrast to the earlier decisions Westerhof says that it is the nature of the evidence the expert intends to provide that determines the applicability of Rule 53.03, rather than the expert’s relationship to the Plaintiff.
Justice Thomas Lederer, writing for the Divisional Court concluded: Read more of this article »
The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.