Tag Archives: case summary

The Importance of Evidence on Care Costing and Economic Loss: McNamee v Oickle, 2020 ONSC 1077

Written By: Patrick Brown and Nicole Fielding

A recent decision from Ontario’s Superior Court of Justice affirms the importance of cogent evidence, including expert evidence, for injured plaintiffs seeking recovery of damages in court.

Jury Questions at a Civil Jury Trial

At a civil jury trial involving a personal injury matter, jurors will be asked to make their decision by answering questions agreed upon by the parties or ruled upon by the presiding judge.

The test for putting a particular question to a jury is a fairly simple one. It has been affirmed by Ontario’s Court of Appeal in MB v 2014052 Ontario Ltd. (Deluxe Windows of Canada) and upheld in subsequent decisions since. Simply put, the question to be asked is whether there is some “reasonable evidence” upon which a jury, acting judicially in accordance with a judge’s instructions on the law, could make a choice in arriving at a finding. If the answer to this question is not yes, a question will not be put to a jury.

The term “reasonable evidence” has been further elaborated on by the Honourable Justice Beaudoin in the recent case of McNamee v Oickle, discussed below.

McNamee v Oickle, 2020 ONSC 1077

The Plaintiffs, Catherine McNamee and John McNamee were injured in a motor vehicle collision on February 11, 2014. Among the damages sought at trial were future costs of physiotherapy and medication, John’s massage therapy, as well as damages for John’s past and future loss of income and loss of economic opportunity/loss of competitive advantage.

Justice Beaudoin was asked to determine which questions could be put to the jury, following the hearing of evidence from both parties.

During the trial, the Plaintiffs called evidence from a variety of witnesses, including Catherine and John themselves, various medical professionals, and actuaries. The Defence argued that there was a lack of evidentiary foundation upon which damages could be awarded, particularly as it related to the necessity, frequency or specific costs of any of the therapies or medications, and the nature of John’s vocational disadvantage. The Defence argued that the Plaintiffs’ positions on these issues were not based on cogent evidence, but rather speculation, and as such, questions based on these issues should not be put to the jury.

Justice Beaudoin ruled that there was insufficient evidence called to support medical justification and costing for physiotherapy, massage therapy, and medication for John. Therefore he declined to allow requests for these health care expenses to go to the jury.

In deciding, Justice Beaudoin quoted the decision in Mundinger v Ashton, noting, “A plaintiff claiming damages for past or future health care costs must provide the jury with some precise calculation either from an expert witness or through the introduction of relevant invoices from which an accurate calculation can be made. Future health care costs should be supported by expert evidence indicating the anticipated frequency and duration of the recommended health care.”

With respect to John’s claims for past and future loss of income, Justice Beaudoin applied the same principles, and declined to have any income loss theories put to the jury. The judge found there was no evidence to support the assumption in the actuary’s report, nor was there any evidence upon which the jury could determine his pre-accident earning capacity.


This case serves as a firm reminder that Plaintiffs’ counsel and their experts (accounting, future care and medical) must provide sufficient evidence to substantiate a theory of damages before  a jury will be able to consider the theory. This will likely require the use of expert evidence at trial to outline the specific care needs of an injured Plaintiff, including both frequency and duration. It will also be important to lead expert evidence as to the costing of these needs and the present value of such costs.

When it comes to economic loss claims, a Plaintiff will be required to produce actual evidence of income or expectation of income when claiming a loss. This will include outlining the Plaintiff’s past and current income calculations, as well as leading specific evidence of what a Plaintiff could have expected to earn into the future. Simply relying on assumptions will not be sufficient at trial. A forensic accountant expert can assist in breaking down calculations of a Plaintiff’s economic loss to the jury.

Ultimately, it will be up to Plaintiffs to provide jurors with the necessary tools to determine that the damages they seek are reasonable and necessary. An effective way of doing so can be through the use of expert evidence, as described above. Without doing so, Plaintiffs will risk being unable to recover damages for their losses at trial.

See the full decision of McNamee v Oickle here.

For more information on the admissibility of expert evidence at trial, check out our blog here.

Eastwood v Walton, 2019 ONSC 4019

Written By: Patrick Brown and Ryan Marinacci, Summer Student

Therefore the plaintiff submits, we are left with a commercial host, a patron with approximately three times the legal limit of alcohol in her system who left the establishment, drove her car and caused an accident resulting in devastating injuries to the plaintiff and the liability for the plaintiff’s damages should be left to a jury.

A jury is well able to decide whether Versailles met its duty of care related to how they served alcohol and tracked the consumption of individual patrons.”

In his recent decision Eastwood v Walton 2019 ONSC 4019, Justice Sloan dismissed the defendant banquet hall’s motion for summary judgment against the plaintiff due to the absence of direct evidence from any of the servers or bartenders serving alcohol at the event on the night in question.

The plaintiff sustained serious injuries in a motor vehicle accident on the night of November 24, 2012, including a traumatic brain injury.  The defendant driver was on her way home from a company Christmas party held at the defendant banquet hall where she had spent the evening drinking.  Liability was not at issue as between the two drivers.  The plaintiff also started an action against the defendant banquet hall, claiming it breached its duty of care as a commercial host by serving the defendant driver to the point of intoxication and allowing her to leave.

The defendant banquet hall moved for summary judgment against the plaintiff.  The banquet hall emphasized the evidence from the driver’s co-workers, none of whom had noticed any signs of intoxication.  Hence, the banquet hall submitted, its staff would not have noticed any intoxication either if no one sitting at the table did, relying on Stewart v Pettie 1995 SCC 147.

The banquet hall also contended that it met its duty of care as a commercial host by requiring the thirty on-shift servers and bartenders to have Smart Serve Training and to report intoxication, and by posting notices about alcohol consumption and taxi company phone numbers.

In response, the plaintiff made three essential points.  First, taking issue with the co-worker statements, the plaintiff submitted that these were interested witnesses (at the time of the Discovery, they were employees of the defendant company who hosted the Christmas party) and pointed out that no one saw the defendant driver leave.  While she could have left between 9-9:30pm as indicated, it was also likely that she stayed longer in the room of 350 to 400 people and kept drinking.

Second, relying on its reports by a toxicologist and a commercial host expert, the plaintiff emphasized that a jury could find that the banquet hall did not meet industry standards despite the defendant not showing signs of intoxication.  Importantly, the plaintiff distinguished Stewart because in that case it was reasonable for the establishment to assume one of the two sober individuals would drive the group home as they had arrived together.  Here, the defendant had arrived alone and was attending the event by herself, which precluded a reasonable assumption that someone else would drive her home.

Third, and most importantly, the banquet hall failed to produce any of the staff on-shift serving the alcohol on the night in question.  This was critical, as Justice Sloane concluded:

[62] Currently there is no evidence from any of Versailles’s staff who were on duty on the night of the accident, with respect to what they understood their duties were in regards to alcohol service and patrons and what if anything they noticed on the night in question.

[63] The statement of claim was issued November 20, 2014, and assuming that it was served on Versailles shortly after that date, they have had over 4 years to try to contact the staff they had on the night in question.  It seems unusual that an employer would not have the SIN numbers of their employees and some method of contacting them even if they were casual.

[64] The court was not directed to any evidence to show what efforts have been made by Versailles to contact their casual staff.

[65] Based on the evidence produced on this motion the court is unable to conclude whether or not staff members were at the exits so that they could assess the sobriety of patrons when they were leaving so they could intervene if they thought it necessary.

In the absence of direct evidence on the procedures followed by the staff with respect to serving alcohol, Justice Sloane was not prepared to grant the summary judgment.  The motion was dismissed with costs.

Case Summary: Can a defence medical exam be performed by someone who is not a “health practitioner”?

Written by: Rikin Morzaria

Ziebenhaus v. Bahlieda, 2015 ONCA 471

In this decision, the Court of Appeal considered the inherent jurisdiction of the court to order a party to undergo a defence medical examination by someone who is not a “health practitioner” as defined by s. 105 of the Courts of Justice Act. The Court acknowledged at the outset that there was conflicting case law on the issue.

The original motion arose from a request by a defendant to have the plaintiff undergo a vocational assessment by a certified vocational evaluator. The plaintiff refused to attend on the basis that the proposed evaluator was not a health practitioner as defined by s. 105 of the Courts of Justice Act.

Both the motions judge and the Divisional Court ordered the plaintiff to undergo the examination.

The parties agreed that the vocational assessor was not a health practitioner. The plaintiffs argued that, by enacting s. 105 of the CJA, the legislature had defined a category of persons who may conduct an examination. Consequently, the plaintiff submitted that the court does not have inherent jurisdiction to order an examination by someone who does not qualify as a health practitioner.

The Court of Appeal disagreed. It endorsed the line of cases that held that a court may exercise its inherent jurisdiction to order such an assessment to ensure justice between the parties is done. In doing so, it endorsed the view that s. 105 does not “occupy the field” of defence medical examinations. Assessments such as vocational assessments and FAEs are not properly characterized as diagnostic aids to the opinions of health practitioners, but precluding their use in litigation would be contrary to good policy. The Court found that this left a gap in statutory provisions. The language of s. 105 of the CJA and Rule 33 is not clear and precise language intended to remove the inherent jurisdiction of the court to prevent abuse and to ensure fairness in the trial process. However, the inherent jurisdiction is to be used “only sparingly and in clear cases, when the moving party demonstrates that it is necessary to ensure justice and fairness.” Importantly, the Court held that this should not be seen as extending the reach of s. 105.

The Court found no reason to interfere with the motion judge’s decision that the vocational assessment was required in that case to ensure fairness between the parties.

Read the full decision on CanLII