Tag Archives: civil procedure

Refreshing Memory With Statement Not a Waiver of Privilege

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

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. Continue reading

Three Feet Rule in Ontario. Do we need it ?

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.

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Insurers Must Advise Insured Persons of Rights When Refusing Benefits

When an insurance company denies accident benefits to an insured person, the insurer must advise the insured person of his or her right to dispute the denial and of the most important points in the process.    A recent court decision has confirmed that if an insurer falls short of this requirement, it will not be able to rely on the limitation period that begins with that denial.

In Yifru v. Certas Direct Insurance Company, Certas Insurance denied Ms. Yifru’s claim for non-earner benefits on June 23, 2003.   Certas advised Ms. Yifru that she could dispute the decision by applying for mediation within two years of the denial.  However, it did not advise her that she had any further options if she and Certas failed to settle her claim at mediation.

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Ouch! Injury Victims Get Whacked Twice with Assessment Costs: Changes to Ontario Auto Insurance as of September 1, 2010

[This is the fifth of a five part series by Patrick Brown on upcoming changes to auto insurance]


Injured accident victims will have a significant amount of their benefits reduced due to assessment costs.  Despite the dramatic slashing of benefits reported in my previous blogs, consumers will also face further reductions based on the fact that the cost of assessments will come out of the amount of benefits available.

For example, if a consumer is injured in a car accident and the injuries are not considered to be catastrophic, they presently have $100,000 in benefits for medical and rehabilitation treatment. Any assessment costs to obtain the benefit are over and above the $100,000.

Under the new standard policy without buy ups, the consumer will only have $50,000 available in benefit dollars.  That $50,000 includes assessments costs.  Therefore, if $5,000 is paid for an assessment to obtain the benefit, then the amount available to the injured person is reduced down to $45,000.  Continue reading

Is an Insurer’s Examiner an “Expert”?

“When is an expert not treated as an expert?”  That was the question Ontario Superior Court judge Thomas Lederer asked in the case of Babakar v. Brown .

The Babakars were involved in a motor vehicle collision and were insured by State Farm.  They applied to State Farm for accident benefits.  At some point, State Farm required the Babakars to attend insurer examinations under section 42 of the Statutory Accident Benefits Schedule with psychologist Dr. Hoath, orthopaedic surgeon Dr. Kadish, and physiotherapist Mr. Diaz.  Based on the reports of Dr. Hoath, Dr. Kadish and Mr. Diaz, State Farm terminated the Babakars’ accident benefits.

at the examination for discovery of State Farm’s representative, the Babakars’ lawyer askedState Farm to make the following inquiries of Dr. Hoath, Dr. Kadish, and Mr. Diaz:

1.                  To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

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Parents Cannot Waive a Child’s Right to Sue

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. Continue reading

Plaintiff Required to Attend Defence Medical Examination

An Ontario court has affirmed that a defendant has wide latitude to choose the doctor who will perform a defence medical examination of a plaintiff.  In Ofori v. De Oliveira et al., the plaintiff Josep Ofori”s main complaint was that he suffered from chronic pain syndrome.  However, Mr. Ofori also alleged in his Statement of Claim that he suffered from “injuries to his shoulders, neck, upper torso, hips and lower extremities, as well as a general spraining straining and tearing of the muscles, tendons, ligaments, discs, nerves and vessels throughout his entire body.”

The defence brought a motion for an Order that Mr. Ofori attend a defence medical examination with Dr. Hugh Cameron, an orthopaedic surgeon.  Mr. Ofori opposed the motion on the basis that Dr. Cameron was not qualified to diagnose or treat chronic pain syndrome.    The Court noted that Mr. Ofori’s lawyers had themselves commissioned a report by an orthopaedic surgeon and granted the defence motion.  He wrote the following passage regarding a defendant’s right to choose his or her own expert witness:

Parties in the position of the moving defendant should be given considerable latitude in their choice of expert witnesses they wish to use in order to defend actions like the present one.  It is inappropriate for a plaintiff to dictate now a defendant should defend an action. The fact that the plaintiff’s solicitors had the plaintiff examined by an orthopaedic surgeon leads me to the conclusion that the proposed examination by Dr. Cameron will not be a complete waste of time.  Dr. Cameron has qualifications relevant to at least some of the plaintiffs’ alleged injuries.

For all these reasons, an order will issue that plaintiff undergo a medical examination by Dr. Cameron pursuant to section 105 of the Courts of Justice Act.

A Plaintiff’s Facebook Account is Not Automatically Producible

A recent decision provides a new perspective on when a plaintiff’s Facebook profile must be produced in a personal injury action.  In Schuster v. Royal & Sun Alliance Insurance Company of Canada, Royal & Sun Alliance (RSA) brought a motion – without notice to the plaintiff- for an Order requiring the plaintiff, Karen Schuster, to preserve her Facebook profile.  RSA indicated it would then bring a second motion, on notice to the plaintiff, to have the plaintiff produce her profile.

Justice Price heard the motion and his decision provides some interesting comments regarding the nature of Facebook and when the contents of a plaintiff’s Facebook profile should be ordered produced.

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Court Denies Plaintiffs’ Motion to Set Aside Dismissal

In a decision released last week, Master Dash denied a motion by plaintiffs to restore their action after it was dismissed for delay by the court Registrar.   The case arose out of alleged medical malpractice and Master Dash acknowledged that the plaintiff had “suffered very serious injuries.”

Master Dash cited the following 4 factors that must be considered and weighed together with any other relevant factors:

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