Refreshing Memory With Statement Not a Waiver of Privilege

Posted by on July 27, 2012 under Case Law Comments are off for this article


When a party to a lawsuit refreshes her memory with a privileged statement before examination for discovery, is the privileged waived?  In other words, does she now have to produce a copy of the statement to the other side? That was the question that confronted Justice Peter Hockin in Knox v. Applebaum Holdings.

In the Knox case, the property manager at Applebaum Holdings prepared a statement for her insurance company for potential litigation after the plaintiff was injured in the Applebaum parking lot.  Before her examination for discovery, the property manager reviewed the statement to refresh her memory.  The plaintiff brought a motion to compel the property manager to produce the statement. The plaintiff argued that the property manager may have given evidence that was not a true memory, but rather an account based solely on the statement.   Justice Hockin noted that previous cases had held that refreshing one’s memory to prepare for examination for discovery does not amount to a waiver of privilege.  In addition, previous cases established that so long as the witness can provide the relevant information, the other party has access to the information and the production of the statement is unnecessary.  Justice Hockin agreed with the reasoning of those cases and held that the property manager had not waived privilege.  Therefore, the statement was not producible.

Judge Overrules Jury Verdict: Court of Appeal Upholds Judge’s Decision

Posted by on October 18, 2011 under Case Law Comments are off for this article

It is extremely rare for a judge in Ontario to overrule the decision of a jury.

However, that is precisely what happened in the recent case of Salter v. Hirst.  Recently, the Court of Appeal upheld the trial judge’s decision and set out strict requirements for proving causation in medical negligence cases.

In the Salter case, George Salter came to the hospital with severe abdominal pain.  Over the course of 3 days in hospital, Salter began vomiting and passing blood.  Finally, he began to lose feeling in his lower extremities.  Dr. Jason Hirst was the doctor responsible for Salter’s care in hospital.   After three days in hospital, Dr. Hirst had Salter transferred to another hospital for more investigation.  At the second hospital, Salter underwent emergency surgery that left his legs paralyzed.

Salter sued Dr. Hirst for negligence.  He alleged that Dr. Hirst’s failure to transfer him sooner was negligent and that, if he had been transferred sooner, he would have recovered the use of his legs.

After a long trial, the jury found that Dr. Jason Hirst was negligent for failing to transfer George Salter sooner as Salter alleged.  The jury also found that Dr. Hirst’s negligence caused Hirst’s paralysis.

Dr. Hirst asked the trial judge to overrule the jury’s decision. Read more of this article »

Three Feet Rule in Ontario. Do we need it ?

Posted by on June 8, 2010 under Cycling, News, Our Firm 2 Comments to Read

Recently Cheri DiNovo an MPP for Parkdale has brought forward a private members bill requiring motorists to give three feet of space to cyclists.  A similar law has been passed in 16 States south of the border.  What will be seen is how Minister Kathleen Wynne and the government reacts to the proposed law. 

Is this a good law for Ontario?

Yes it is.  If every driver obeyed this basic concept of giving space to cyclists, there would be a sharp reduction in the number of cyclists killed and injured on our roads. Statistics indicate that the majority of cyclist’s injuries and deaths are caused at the time a vehicle passes.  There are very few who could possibly argue that if the law was obeyed, the number of accidents would be reduced.

Read more of this article »

Auto Insurance Changes Effective September 1, 2010: Justice Restored in Fatality Claims

Posted by on April 6, 2010 under Accident Benefits, Automobile Insurance, Case Law, Insurance Companies, News Comments are off for this article

This is the second of a series where Patrick Brown discusses the upcoming changes to auto insurance.

The Ontario Government has now stepped up and restored both dignity and respect to the senior community and those families that have lost a loved one at the hands of a bad driver. 

The Minister of Finance announced that effective September 1, 20010, the deductible in auto related wrongful death cases will be eliminated.  The right to a grandparent to receive compensation when they lose a grandchild will be restored.  As well, grandchildren will also be able to advance meaningful claims for compensation when they lose a grandparent to a negligent driver.

Read more of this article »

Recreational Trail Owners Held to Low Standard of Care

Posted by on March 12, 2010 under Case Law Comments are off for this article

An occupier of land that opens the land up for recreational use free of charge owes a lesser duty of care than other occupiers of land.  That was the judgment of the Ontario Court of Appeal in Schneider v. St. Clair Region Conservation Authority.

Angela Schneider was cross-country skiing with her family on a trail at Coldstream Park.  At some point, she left the trail and followed an alternate set of ski tracks.  Along that path, she struck her ski on a six inch concrete wall hidden below the snow.  The impact caused Ms. Schneider to fall and fracture three bones in her right ankle.

Ms. Schneider sued the St. Clair Region Conservation Authority.  At trial, the judge concluded that the Authority fell below the standard of reasonable care required by the Occupiers’ Liability Act.  However the Court of Appeal held that the trial judge applied the wrong standard of care.  The correct standard to which a recreational trail owner is held is “to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.” Read more of this article »

New Bill 198 Threshold Decision Sheds Light on Interpretation

Posted by on January 15, 2010 under Automobile Insurance, Case Law Comments are off for this article

Since the defining regulation for the Bill 198 threshold was passed in October 2003, it has been the subject of a much debate.  There have been surprisingly few decisions to provide guidance and new decisions are always welcome.

Only six days into the new year, Madame Justice Milanetti  released a new decision that sheds further light on the interpretation of the threshold under Bill 198.  It suggests that courts are not interpreting the Bill 198 threshold as a substantial departure from the previous threshold under Bill 59.

Valdez v. Clarke involved a threshold motion brought by a defendant at the end of a three-week jury trial.  Mr. Valdez had been involved in three motor vehicle collisions and brought a lawsuit against the defendant driver in the second collision.  The jury awarded Mr. Valadez $25,000 in general damages for pain and suffering and loss of enjoyment of life.   Because the deductible on general damages is $30,000 under Bill 198, Mr. Valdez would not end up receiving any compensation.

Despite the absence of any financial recovery for Mr. Valdez, Justice Milanetti agreed to hear the defendant’s threshold motion “given the paucity of Bill 198 law on threshold thus far.”
Read more of this article »

Parents Cannot Waive a Child’s Right to Sue

Posted by on January 5, 2010 under Case Law Read the First Comment

A parent cannot sign away a child’s right to sue by signing a waiver, a British Columbia Supreme Court judge has ruled.

The Wong v. Lok’s Martial Arts Centre Inc. decision is believed to be the first Canadian decision to comment on whether a parent’s waiver of liability can bind a child and prevent that child from later bringing a lawsuit.    Victor Wong broke his arm at Lok’s Martial Arts Centre Inc. while he was sparring with an adult.  Wong was 16 at the time.   He claimed that Lok’s Martial Arts Centre failed to take appropriate care to prevent the injuries.  Specifically, he claimed that Lok’s did not provide appropriate protective gear, did not carefully supervise matches, and did not screen and instruct the participants appropriately. Read more of this article »