“What we’re seeing now is lawyers representing the injured party saying wait a second, I need a light at the end of the tunnel here…These cases are being put on hold and because of COVID restrictions, the strong likelihood is cases will be tried by judge alone long before jury trials are reinstated,” tells McLeish Orlando partner, Dale Orlando, to Law Times in this piece written by Mallory Hendry.
Written By: Nick Todorovic and Aidan Vining, Student-at-Law
Many wrongful acts that people commit can be subject to both criminal and civil proceedings. For example, a drunk driver may hit someone and be charged criminally and the injured person may then also commence a civil suit against the drunk driver to recover damages. Generally, the criminal trial will finish before the civil trial. In more cases, only the accused/defendant can participate in both proceedings. The victim can only participate in the civil proceeding. The prosecution dictates the conduct of the criminal proceeding.
It is important to understand that not only can a wrongdoer be subject to both criminal and civil proceedings, but the outcome of the criminal trial does not necessarily determine the outcome of the civil trial. Section 11 of the Criminal Code specifically states:
Civil Remedy Not Suspended
11 No civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence.
This means that just because a person is acquitted in the criminal trial against them, it does not mean that they are immune from civil liability. An accused that is found not guilty at their criminal trial can still be found liable in a civil trial and be forced to pay damages for the losses they caused.
This may surprise some people. An example that many might be familiar with is the notorious case of OJ Simpson. OJ Simpson was infamously found not guilty for the murder of his wife, Nicole Brown Simpson, and Ron Goldman. However, in a civil trial following the criminal trial, OJ Simpson was found liable for the wrongful death of and battery against Ron Goldman and the battery against Nicole Brown Simpson. The civil jury ordered OJ to pay $35,500,000 in damages.
So, how does that work? How can someone be found not guilty in a criminal trial but then be liable for the same act in a civil trial? The answer is that the two systems have different standards of proof that are required to find a wrongdoer either guilty (criminal) or liable (civil).
Criminal Standard – Beyond a Reasonable Doubt
The standard of proof that the prosecution in criminal cases must satisfy a judge or jury before an accused can be convicted is that the accused is guilty beyond a reasonable doubt. This is a very high standard. The “beyond a reasonable doubt” standard goes beyond our everyday conception of decision-making and is close to being absolutely certain.
The reason for this high standard is the constitutionally protected presumption that the accused is innocent until proven guilty. Criminal proceedings may result in an accused being sentenced to imprisonment. Denying a person of their liberty is not something that is taken lightly. Therefore, the prosecution must prove that the accused is guilty beyond a reasonable doubt.
Civil Standard – Balance of Probabilities
In a civil proceeding, the standard of proof is determined on a balance of probabilities. What this means, is that the trier of fact (either a judge or jury) must be satisfied that it is more likely than not that the facts being alleged are true. This standard has also been referred to as the 51% standard. Rather than needing to prove something close to absolute certainty, a plaintiff in a civil trial need only demonstrate that it is more likely than not that their case is made out.
One of the reasons for this lower standard is that, unlike criminal proceedings where an accused may be imprisoned, civil proceedings are about compensating victims and putting them back into the position they would have been in had the wrongful act not occurred. There is no threat to the defendant’s liberty, and therefore the case against them does not need to be proved beyond a reasonable doubt.
Impact of Criminal Proceedings on Civil Proceedings
Now that we know an act can attract both criminal and civil proceedings, what impact does a criminal conviction or acquittal have on the civil proceeding?
Impact of a Criminal Conviction
A conviction in a criminal trial can make a significant impact on the civil proceedings. A finding of guilt can be used in the civil suit as proof that the crime was committed by the defendant. This is specifically provided for by Ontario’s Evidence Act at section 22.1, which essentially creates a rebuttable presumption of wrongdoing. It is possible for a defendant to rebut this presumption, but it gives the plaintiff a leg-up in the proceeding and makes things considerably more difficult for the defendant. This makes the finding of liability of the defendant significantly easier in the civil suit and moves the focus of the case to determining the amount of damages owed for the wrongful act.
Impact of Criminal Acquittal
While a criminal acquittal may come across as a victory to defendants, it does not mean defeat for plaintiffs. Acquittals do not create the same legal presumption in civil suits that convictions do. Acquittals also do not mean that the person is innocent. It means there was at least a reasonable doubt as to whether the person was guilty. However, as discussed above, the standard of proof is lower in civil suits and therefore it need only be proven that it is more likely than not that the wrongful act occurred. This is how OJ Simpson was acquitted in the criminal trial (due to the jury determining there was reasonable doubt), but found liable in the civil suit (the jury determined he more likely than not committed the murders). Thus, all hope is not lost for plaintiffs.
In fact, there can also be benefits of an acquittal from a civil perspective. When determining damages in a civil suit, the plaintiff can claim punitive damages (i.e. punishment). The focus is on compensating the plaintiff and putting them back into the position they would have been, had the wrongful act not occurred. However, where an egregious or particularly terrible act has been committed, a court may decide to punish the defendant through additional punitive damages. This would be much less likely if the defendant was already being punished through the criminal system. On the other hand, if the court feels as though the defendant escaped their punishment through an acquittal, the defendant may receive that punishment through punitive damages that are awarded to the plaintiff.
The outcome of a criminal trial may seem like it carries significant weight for civil suits, but that is not necessarily the case. To ensure your interests are taken care of, it is important to have an experienced team of lawyers on your side that are familiar with the intersection of criminal and civil proceedings.
Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law
OVERVIEW OF THE CASE
In Mitsis v. Holy Trinity Greek Orthodox Community of London, 2021 ONSC 5719, the defendant moved for an Order compelling the plaintiff to attend a second medical examination pursuant to section 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure, and an adjournment of the pre-trial conference to allow for service of the subsequent expert report.
The plaintiff alleged that she had sustained both a neck and right arm fracture as a result of a slip and fall on the defendant’s premises in December 2016. Following the completion of the examinations for discovery, the defendant arranged a physiatry medical examination of the plaintiff; a report followed and was served.
In June 2021, 90 days prior to the pre-trial conference, the plaintiff served an expert report from an orthopedic surgeon. The report addressed the plaintiff’s recovery and functional limitations related to her fractured right proximal humerus. In response, the defendant scheduled a second medical examination for the plaintiff with a different orthopedic surgeon to obtain an opinion to counter the plaintiff’s report. The plaintiff refused to attend a further examination, resulting in the defendant’s motion.
THE TEST FOR FURTHER MEDICAL EXAMINATIONS
The Court cited Bonello v. Taylor, 2010 ONSC 5723 as the applicable test for determining when a further examination may be ordered. In Bonello, the overriding factor is trial fairness:
 Although the determination of whether to order a second or further examination by a health practitioner must turn on the specific facts and equities of a case, a body of case-law has developed around when a second or further examination may be ordered under CJA s. 105 and Rule 33. The leading principles can be summarized as follows:
(i) The party seeking the order for a further examination must demonstrate that the assessment is warranted and legitimate, and not made with a view to delaying trial, causing prejudice to the other party, or simply corroborating an existing medical opinion;
(ii) A request may be legitimate where there is evidence that (i) the party’s condition has changed or deteriorated since the date of a previous examination, (ii) a more current assessment of the plaintiff’s condition is required for trial, (iii) the plaintiff served specialist reports from new assessors after the defendants had conducted their medical assessments, or (iv) some of the party’s injuries fall outside the expertise of the first examining health practitioner;
(iii) Ordering further examinations may be just where they are necessary to enable the defendant fairly to investigate and call reasonable responding evidence at trial;
(iv) Where the request is for the examination of the plaintiff by a person who is not a health practitioner, such as a rehabilitation expert, the defendant must demonstrate that the proposed examination is necessary as a diagnostic aid to the health practitioner who is conducting the defence medical examination;
(v) A request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination. What constitutes sufficient evidence will vary from case to case.
(vi) While fairness, or “creating a level playing field”, may constitute a legitimate reason for ordering a second examination, someone with knowledge of the evidence in the case must provide evidence of unfairness for the court to consider; and
(vii) A court should consider whether the request for a further examination would impose an undue burden on the plaintiff in light of the number of examinations already conducted of her by the defence.
THE COURT’S ANALYSIS
The defendant argued that an examination by a physiatrist was initially conducted because the plaintiff’s main concern was that of chronic pain. The defendant’s physiatry report focused on the plaintiff’s chronic pain and its impact on her day-to-day living. The plaintiff’s subsequent orthopaedic report ultimately focused on the plaintiff’s recovery and functional limitations as it related to her fractured right proximal humerus. The plaintiff argued that if she was required to attend a further examination, she would be prejudiced due to the further delay of the trial.
The Court considered the Bonello factors, stating that while there was no evidence that the defendant was attempting to delay the trial or cause prejudice to the plaintiff, it appeared that the defendant was trying to repair the expert opinion given by the physiatrist. The Court explained that there was nothing unfair in the circumstances in requiring the defendant to base its case on the physiatrist’s report. The Court agreed that there was no evidence that more assessments of the plaintiff’s condition was required for a fair trial.
The defendant’s motion for an Order to compel the plaintiff to attend a second medical examination was dismissed. The Court was satisfied that the defendant must be held to their choice to proceed with a first examination of the plaintiff by a physiatrist instead of an orthopedic surgeon. The defendant had the opportunity to wait until the plaintiff served their first report and make their decision based on the specialty of the plaintiff’s report that was served.
WHY THIS MATTERS
While the Court will consider each case on a case-by-case basis, this decision serves as a reminder that if the defence decides to obtain an expert medical opinion prior to the plaintiff doing so, it may be unable to obtain a further opinion to rebut or counter the findings of a subsequently served plaintiff report.
Written By: William Harding and Daniel Garas, Summer Student
Being involved in a motor vehicle collision or an accident of another kind may result in an injury to the spinal cord. There are varying types of spinal cord injuries (SCIs) and depending on the injury, the symptoms will differ.
A) INCOMPLETE Spinal Cord Injury
These injuries are the most common of all spinal cord injuries – accounting for over 60% of SCIs.
The Most Common Incomplete Injuries
1) Anterior Cord Syndrome
Anterior Cord Syndrome results when the injury is to the front of the spinal cord. Predominately, the anterior two-thirds of the spinal cord. This type of injury usually results in “motor paralysis below the level of the lesion as well as [a] loss of pain and temperature at and below the level of the lesion.” Symptoms will vary depending on what portion of the spinal cord is injured.
2) Central Cord Syndrome
Central Cord Syndrome is the most common type of spinal cord injury. In this case, the injury is to the center of the spinal cord. This condition leads to “motor deficits that are worse in the upper extremities as compared to the lower extremities. It may also cause bladder dysfunction (retention) and variable sensory deficits below the level of injury.” Recovery of some movement in the legs is possible; recovery of movement in the arms is rare.
3) Brown-Sequard Syndrome
Brown-Sequard Syndrome is when the injury is on one side of the spinal cord – either the left or right side. The side of the body where the injury is located is affected the most. Symptoms of this injury include: “weakness or paralysis and proprioceptive deficits on the side of the body ipsilateral [same side] to the lesion and loss of pain and temperature sensation on the contralateral [opposite] side.”
Other Incomplete Injuries
Other incomplete injuries include Cauda Equina Syndrome, Conus Medullaris Syndrome, and Posterior Cord Syndrome.
Cauda Equina Syndrome results when there is damage to the “bundle of nerve roots around the lumbar level of the spinal cord.” The cause of CES is spinal compression. This injury weakens the affected muscles and creates a loss of sensation, but the movement is not necessarily affected.
Conus Medullaris Syndrome affects the sacral cord and lumbar nerve roots. CMS has similar symptoms to CES.
Posterior Cord Syndrome results from damage to the back of the spinal cord and causes poor coordination skills.
B) COMPLETE Spinal Cord Injury
A complete spinal cord injury results when the spinal cord is fully compressed or severed and results in complete bilateral paralysis below the injured site. Bilateral means that both sides of the body are affected equally. In other words, sensory and motor function is completely lost below the point of the injury.
1) Quadriplegia (Tetraplegia)
Quadriplegia is paralysis that affects all four limbs: both of the arms and both of the legs. The lesion is in the cervical spinal cord and as with any spinal cord injury, the location of the injury on the cervical spine will determine the severity of the paralysis.
A paraplegic loses all sensory and motor functions in their legs and generally the pelvis, but not in their arms. The lesion is usually located in the thoracic or lumbar portions of the spinal cord. Those that are paraplegic are generally more independent as a result.
CAUSES OF SPINAL CORD INJURIES
Spinal cord injuries result from damage to the vertebrae or discs, which causes compression on the spinal cord or damage to the spinal cord directly. This can result from a traumatic blow to a person’s spine.
Studies show that the most common causes for spinal cord injuries are the following: motor vehicle accidents, falls, acts of violence, and sports and recreation.
HAVE YOU SUFFERED A SPINAL CORD INJURY?
If you or a loved one has suffered a spinal cord injury as a result of the negligence of another person, please contact one of the personal injury lawyers at McLeish Orlando LLP for a free consultation.
 Types of Spine Injuries, Sonoran Spine, December 27, 2016, Accessed on July 7, 2021, https://www.sonoranspine.com/blog/item/types-of-spine-injuries.
 What is an SCI, Spinal Cord Injury Ontario, Accessed on July 7, 2021, https://sciontario.org/support-services/info-insights/living-with-an-sci/what-is-an-sci/.
 Complete vs Incomplete Spinal Cord Injury: What You Need to Know, SpinalCord.com, February 11, 2020, Accessed on July 7, 2021, https://www.spinalcord.com/blog/complete-vs.-incomplete-spinal-cord-injuries [Complete v Incomplete SCI].
 Complete v Incomplete SCI, supra note 3.
 Complete v Incomplete SCI, supra note 3.
 Tetraplegia, National Center for Biotechnology Information, Accessed on July 7, 2021, https://www.ncbi.nlm.nih.gov/gtr/conditions/C0034372/.
 Spinal Cord Injury, Mayo Clinic, Accessed on July 7, 2021, https://www.mayoclinic.org/diseases-conditions/spinal-cord-injury/symptoms-causes/syc-20377890; Complete v Incomplete SCI, supra note 3.
Written By: Brandon Pedersen and Aidan Vining, Student-at-Law
The recent decision of Rumney v Nelson, 2021 ONSC 5632 out of Orangeville is yet another case where the Defendant’s jury notice was conditionally struck. Interestingly, this case has the added bonus of a discussion about whether a jury should be advised of the statutory deductible in motor vehicle collision cases.
The action arose from a 2012 rear-ending motor vehicle collision. At the time of the motion hearing, the action was scheduled to be tried before a judge and jury in October 2021 and expected to last 4 weeks.
Due to the ongoing COVID pandemic, the Plaintiff sought a conditional order to strike the Defendant’s jury notice. If the Court is not permitting civil jury trials in Orangeville when the matter is called for trial, then the matter would proceed anyways – but without a jury. On the other hand, if jury trials are permitted when the matter is called for trial, then it would proceed with a jury.
In deciding whether to strike the jury notice, Byrne J. stated:
 When deciding whether justice will be served by striking the Jury Notice, the court should consider (i) the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing; (ii) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials; (iii) the prejudice to the parties that would be caused by delay in adjudication, (iv) the age of the case, and (v) the history of adjournments: Johnson v. Brielmayer, 2021 ONSC 1245 at para 32.
Byrne J. considered the fact that the motor vehicle collision took place nearly 9 years ago, and that the Orangeville courthouse only has one courtroom sufficiently large for a jury to socially distance. The matter had not been adjourned before, but due to the local conditions in Orangeville, the matter may not be rescheduled for another two years if juries are not available when the matter is called to trial.
Due to this risk of delay and lack of access to justice, Byrne J. conditionally struck the jury notice.
Instructing the Jury of the Statutory Deductible
The Plaintiff also sought an Order that the judge at trial provides an instruction to the jury regarding the statutory deductible as set out in s.267.5(7) of the Insurance Act. Specifically, the Plaintiff wanted the jury to be told how the statutory deductible works and that they should not consider it when determining non-pecuniary damages.
The statutory deductible operates to reduce the amount a person injured in a motor vehicle collision recovers for pain and suffering. The current reduction in 2021 is $39,754.31. This means that if you are injured in a motor vehicle collision, the insurance company will keep the first $39,754.31 of any damages awarded to you for pain and suffering. Juries are not told about this deductible, and triers of fact (i.e. juries) are supposed to make damage awards without regard to the deductible.
In Rumney, the Plaintiff argued that juries should be told about the deductible as this information is readily available on the internet. It was argued that s.267.5(7) of the Insurance Act only states that the assessment of damages should be made “without regard to” the deductible, not “without knowledge.”
Byrne J. noted that the existence of the statutory deductible “is not evidence, but rather a regulation.” As such, Byrne J. found that the regulation applies to every case in the same way, and no evidence on its existence needs to be brought into the trial.
The motion to instruct the jury of the statutory deductible was dismissed.
Why This Matters
This recent decision highlights two important and developing areas of motor vehicle litigation. A steady flow of case law has been growing that demonstrates Courts are willing to strike jury notices due to the ongoing pandemic. The longer restrictions must be in place, the further backlogged the courts will become. Striking the jury is one way for civil actions to proceed in a timely manner and facilitate access to justice.
On the other hand, an interesting argument was made as to why the jury should be instructed about the existence of the statutory deductible. For now, juries will continue to award damages to injured plaintiffs without the knowledge that they will be automatically reduced.
Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law
Overview of the Case
McKee v. Marroquin is a case arising from a motor vehicle collision that occurred on June 10, 2016, in which the plaintiff was seriously injured. The plaintiff issued a statement of claim on August 21, 2017, alleging that the accident and resulting injuries were due to the negligence of the defendants. In response, the defendant served a statement of defense and jury notice on December 14, 2017. Upon the completion of examinations for discovery of all parties, the plaintiff filed the trial record on April 20, 2018. The defendants objected, stating that numerous undertakings given by the plaintiff on discovery were still outstanding.
On November 15, 2019, the parties attended a pre-trial conference and were advised that they were ready to proceed to trial. The action was subsequently set down for trial for May 2020. Due to the disruption of the regular operation of the courts as a result of the COVID-19 pandemic, the trial was delayed. At a second pre-trial conference in June 2020, the parties once again advised that they were ready to proceed to trial. The trial was delayed once again and ultimately adjourned to the blitz sittings in January 2022 to be heard with a jury.
Leave under Rule 48.04(1)
The defendants objected to the plaintiff’s ability to bring a motion to strike the jury notice in violation of Rule 48.04(1). Under Rule 48.04(1) of the Rules of Civil Procedure, a party that has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.
The defendants maintained the position that the plaintiff should not have been able to bring a motion due to the fact that the action had already been set down for trial. The defendants’ further argued that the plaintiff had not answered all of the undertakings given on discovery.
Emery J., for the Court, outlined a three-step test to determine whether leave should be granted under Rule 48.04(1):
 First, the court must determine whether the change to the circumstances is substantial or unexpected. Second, the court goes on to decide whether it would be manifestly unjust if leave was refused, or if it is necessary in the interests of justice to grant leave, as the case may be. Third, the court should exercise its discretion whether to grant leave having regard to all of the circumstances.
In granting leave, Emery J. referenced recent decisions on motions to strike jury notices in actions from Central West Region, the majority of which found that the pandemic was a substantial or unexpected change in the circumstances such that leave to bring the motion to strike should be granted.
Motion to Strike
Emery J. reviewed the principles related to motions to strike the jury notice:
 The bedrock principles behind the right to a jury in a civil case, what is required to displace that right, and the discretion of a judge to strike a jury notice are well settled. Those principles were reviewed by Hourigan J.A. on the appeal in Louis v. Poitras, and by Trimble J. in Roszczka. Notably, they include the principle restated by the Court of Appeal in Cowles v. Balac 2006), 2006 CanLII 34916 that the right to a civil jury trial is a substantive right that must not be interfered with except for just cause or cogent reasons. The Court in Girao v. Cunningham, 2020 ONCA 260 also confirmed that, while the right to a jury trial is fundamental, it is not absolute and must sometimes yield to practicality.
 Brown J.A. described the scope of this discretion in Belton v. Spencer, 2020 ONCA 623 as a qualified right. The judge hearing the motion has “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.” Brown J.A. went on to emphasize that the paramount objective of the civil justice system is to provide the means for the disputes of parties to be resolved in the manner most just between the parties.
 In Louis v. Poitras, Hourigan J.A. put a fine point on this discretion by stating that “motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.” This corresponds with the view expressed by Brown J.A. in Spencer that the discretion given by the law to the presiding judge is intended to better serve the justice between the parties. The question of whether a jury notice should be struck is case-specific, and best answered by the judge hearing the motion and likely most aware of local conditions.
 Similarly, the motions judge is most able to answer whether striking the jury notice will better serve the justice of the case between litigants in practical terms.
Having regard to all of the circumstances, Emery J. recognized that it would be necessary in the interests of justice for leave to be granted. Emery J. considered the significant backlog of cases requiring jury trials in the coming months and the undue delay that would prejudice the plaintiff’s case, stating that it justified the departure from the defendant’s right to a jury trial.
Jury Conditionally Struck
Emery J. ordered that the action shall remain on the Brampton trial list for the January 2022 sittings. But, if trials by jury are not provided for January 2022, the jury notice is struck, and the trial shall proceed before a judge alone. However, if the matter is not reached during the January 2022 sittings – whether by jury or judge-alone – it shall be set for a trial on the next earliest sittings by jury. If no jury trials are provided at that time, the jury notice is struck, and the trial is to proceed before a judge alone.
Why This Matters
Recent case law supports the view that the pandemic qualifies as a substantial and unexpected change in circumstances in the context of granting leave — this is especially significant for actions that were set down for trial prior to March 2020. As noted by Emery J., the trial list for May 2022 is currently closed in Brampton, and the earliest the parties in this action could expect a jury trial would be January 2023. The recent decisions of the Court overwhelmingly point to the fact that the delays caused by the COVID-19 pandemic will continue to have a significant impact on the regular operation of the courts for the foreseeable future. However, conditionally striking the jury is an attempt to balance the interests of both plaintiffs and defendants by utilizing a modified wait-and-see approach. Given the court’s willingness to favour conditionally striking the jury over an absolute striking, counsel will have to prepare for trial without knowing whether the action will be heard by a jury or by judge-alone.
Written By: Dale Orlando and Emma Pedota, Summer Student
No-fault auto insurance benefits in Ontario are set out in the Statutory Accident Benefits Schedule (“SABS”) which creates three categories of injuries that determine how much money will be available to an individual after being injured in an auto incident. The first category is the Minor Injury Guideline (MIG). An individual will be classified under MIG if they experience whiplash-related injuries, muscular strains/sprains, contusions, and/or lacerations. Individuals who fall under MIG are entitled to $3,500 for their medical-rehabilitation needs.
An individual who does not fall into the MIG will be classified as non-catastrophic (non-CAT) which typically provides up to $65,000 of medical-rehabilitation and attendant care funding, for up to five years.
If an individual has sustained more serious injuries than those outlined under the MIG and non-CAT designation, they may meet the description of catastrophic impairment (CAT). To be found catastrophically impaired, an individual must meet one of the several criteria set out in the legislation. When classified as such by your insurer, the injured person has access to one million dollars over their lifetime for medical benefits, rehabilitation benefits, and attendant care benefits.
The SABS defines catastrophic impairment as one of the following:
- Paraplegia or tetraplegia
- Traumatic brain injury
- Blindness or a loss of vision of both eyes
- Amputation or severe impairment of the ability to move or use one arm or to walk independently
- Physical impairment or a combination of physical impairment that results in 55 percent whole person impairment
- Severe mental/behavioral disorder in three or more areas of function
It is important to note that the designation of a catastrophic injury is different for children than for adults with regard to brain injuries. This is because a brain injury in children may not be immediately apparent. For other injuries, including spinal injuries, blindness, loss of limbs, etc., children are evaluated for a catastrophic injury in the same way as adults.
Catastrophic injuries can be caused by a variety of factors. Some of the most common causes of catastrophic injuries are:
Changes in Ontario Law
Recent changes to Ontario law have made it more difficult for individuals to recover compensation after suffering a catastrophic injury. For example, the previous regime allowed victims to receive up to $1 million in medical and rehabilitation benefits and up to $1 million in attendant care benefits. The current regime has reduced these benefits to allows individuals to receive up to $1 million for medical, rehabilitation, and attendant care benefits.
In addition to receiving benefits from your own insurer, an individual who has been seriously injured as a result of a motor vehicle incident is entitled to sue the negligent party for damages. The tort system is designed to put the innocent injured party in the financial position that he or she would have been if the injury had not occurred. Some of the heads of damages in a tort action include:
- Loss of past income
- Loss of future income
- Cost of attendant care and future care
- Housekeeping and home maintenance
- Special damages
- General damages for pain and suffering and loss of enjoyment of life
In Ontario, there are caps on damage awards that may limit a catastrophically impaired individual’s recovery. For example, there is a limit on damages for pain and suffering, which is capped at about $370,000 as of 2020, subject to inflation each year. However, damages for income loss and future cost of care do not have a cap.
 Najma Rashid, What is Catastrophic Impairment, online: Ontario Trial Lawyers Association Blog < https://otlablog.com/what-is-a-catastrophic-impairment/>.
Written By: Brandon Pedersen & Aidan Vining, Student-at-Law
Factual Background of the Case
A recent case from the Ontario Court of Appeal demonstrates the integral role experts play in medical malpractice litigation. In Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, a gynecologist was found to have negligently caused the death of his patient.
Ms. Hacopian-Armen died in 2011 from Stage IV uterine leiomyosarcoma (“uLMS”), an aggressive form of cancer that originates in the muscular outer layer of the uterus. Diagnosing uLMS is difficult as it has features similar to fibroids, which are fairly common benign, non-cancerous growths. Fibroids cannot be distinguished from uLMS by imaging. Instead, uLMS can be discovered by conducting an endometrial biopsy – a short and simple in-office procedure.
Ms. Hacopian-Armen’s health issues began when she was diagnosed with fibroids in 1999. In 2009, she was referred to the gynecologist for treatment.
Ms. Hacopian-Armen exhibited several risk factors for diseases of the uterus at her first meeting with the gynecologist in 2009. The risk factors included: being over 40 years old, experiencing abnormal uterine bleeding, and never having given birth. The gynecologist conducted a routine swab of Ms. Hacopian-Armen but did not perform an endometrial biopsy.
Unfortunately, Ms. Hacopian-Armen’s symptoms worsened. In April 2011, the gynecologist performed an endometrial biopsy, which revealed that Ms. Hacopian-Armen had a Stage IV cancerous tumour in her uterus. Ms. Hacopian-Armen had a hysterectomy and began chemotherapy, but it was too late. Ms. Hacopian-Armen died in August 2011, four months after the gynecologist discovered the cancerous tumour.
Ms. Hacopian-Armen’s family started a lawsuit against the gynecologist. They alleged that his failure to conduct an endometrial biopsy was negligent, in that conducting said procedure would have likely detected Ms. Hacopian-Armen’s cancer at a much earlier stage, making it likely that her death would have been prevented.
Expert witnesses played a significant role in the trial decision.
The trial judge accepted Ms. Hacopian-Armen’s expert’s opinion that Ms. Hacopian-Armen likely had the cancerous uLMS at the first meeting with the gynecologist, and that had an endometrial biopsy been performed on that date, the uLMS likely would have been detected. The trial judge also found that the Ms. Hacopian-Armen’s prognosis would have been substantially improved if the uLMS had been found and treated in 2009. The cancer could have been removed from her body at that time before it had a chance to spread. The trial judge concluded that but for the gynecologist’s failure to perform the biopsy in 2009, Ms. Hacopian-Armen would probably not have died of Stage IV uLMS. The risk of uLMS was real, and it was foreseeable that if uLMS went untreated, it would likely result in serious injury or death.
Ultimately, the trial judge concluded that:
- The gynecologist breached the standard of care that he owed to Ms. Hacopian-Armen by failing to perform an endometrial biopsy;
- A biopsy performed at the first appointment in 2009 would have detected the uLMS, which would have greatly improved Ms. Hacopian-Armen’s prognosis; and
- The harm that occurred to Ms. Hacopian-Armen and her family members was foreseeable and caused by the gynecologist’s failure to perform the biopsy.
Justice Brown summarized her conclusion as follows:
 Based on all of the evidence adduced at trial, including the medical records, the opinions and testimony of the medical experts adduced on behalf of both parties, the submissions of counsel and the case law, I find that Dr. Haider Mahmoud fell below the standard of care by failing to perform an endometrial biopsy on May 25, 2009. His notetaking fell below the standard expected of a reasonably skilled specialist in his professional field. Further, in failing to perform an endometrial biopsy on May 25, 2009, this allowed the plaintiff’s LMS to progress to the point that the course of the disease was unable to be altered by the time it was finally diagnosed. It was foreseeable, and not too remote, that the negligence would result in the plaintiff’s final loss. I am satisfied that causation, both factual and legal, have been established.
The gynecologist challenged the trial decision based on alleged errors in the trial judge’s conclusions on legal and factual causation.
The gynecologist argued that the trial judge relied on retrospective reasoning and the benefit of hindsight in determining causation. It was argued that the trial judge erred by asking whether it was foreseeable that the presence of uLMS, if untreated, would lead to serious injury or harm. Rather, the gynecologist argued that the proper questions to be asked were whether it was foreseeable to a reasonable gynecologist that (a) Ms. Hacopian-Armen had uLMS in 2009; (b) an endometrial biopsy would have diagnosed the uLMS; and (c) not performing an endometrial biopsy could lead to a delayed diagnosis of uLMS. This is because, the gynecologist argued, uLMS is a rare form of cancer and the harm was too remote and unforeseeable.
The gynecologist argued that the trial judge’s retrospective approach to causation would create a dangerous precedent and force physicians to order unnecessary tests to avoid the risk of missing unforeseeable diseases.
The unanimous panel at the Court of Appeal agreed that the trial judge inappropriately blended her factual and legal analysis with hindsight. However, the Court held that it did not matter that the gynecologist did not know that Ms. Hacopian-Armen had uLMS in 2009. What mattered was the combination of risk factors being presented by Ms. Hacopian-Armen at the time. Due to her age, the fact that she had not had a child, and the symptoms she was having, an endometrial biopsy was required and it was reasonably foreseeable that the failure to conduct one would preclude detection of uterine diseases which would cause serious harm if left untreated.
The Court stated that it is sufficient that the harm suffered is of a kind, type or class that was reasonably foreseeable as a result of the gynecologist’s negligence. By failing to conduct a biopsy that would have detected cancers of the same class or kind as uLMS (including uLMS itself), it was foreseeable that uLMS or other cancers of that kind would go undetected, resulting in injury to Ms. Hacopian-Armen.
The Court also rejected the argument that this case would result in doctors ordering unneeded tests. In this case, due to Ms. Hacopian-Armen’ symptoms and risk factors, a biopsy was actually necessary and ought to have been performed by a competent gynecologist.
The Court therefore rejected this ground of the gynecologist’s appeal and upheld legal causation.
The gynecologist also argued that the judge erred in finding that but for his negligence, the injury would not have occurred. Specifically, the gynecologist argued that the trial judge erred in (a) finding that uLMS was likely present at the first meeting in 2009, and (b) in finding that an endometrial biopsy would have likely detected uLMS in 2009.
The Court determined that the standard of review applicable to this case was one of palpable and overriding error, as negligence matters involve questions of mixed law and fact. The trial judge’s treatment of expert evidence was therefore given deference.
The trial judge explicitly found Ms. Hacopian-Armen’s experts to be more reliable than those of the gynecologist. Two experts testified on behalf of Ms. Hacopian-Armen that uLMS was likely present in 2009 when Ms. Hacopian-Armen was first examined by the gynecologist. The trial judge accepted this evidence and rejected the gynecologist expert’s opinion that there was no proof of uLMS being present in 2009. The Court of Appeal found no error with the trial judge’s acceptance and rejection of expert evidence.
The Court of Appeal also found no error with the trial judge’s acceptance of Ms. Hacopian-Armen’s expert opinion that uLMS likely would have been detected had a biopsy been conducted in 2009. When there are conflicting expert opinions presented by the parties, a trial judge is entitled to accept one side’s expert opinion over the other. The trial judge found Ms. Hacopian-Armen’s experts to be “forthright, impartial and consistent” whereas the gynecologist’s experts were described as “less than forthright” and “argumentative.” The trial judge found Ms. Hacopian-Armen’s experts to be more credible and thus accepted their evidence over the gynecologist’s experts.
The appeal was ultimately dismissed, and the trial judge’s finding of liability on the gynecologist was upheld.
Why This Matters
This case demonstrates the significant role experts play in medical malpractice litigation. Due to the technical and complex nature of these cases, judges rely heavily on expert evidence to inform their opinion and ultimate decision of a case. For this reason, it is important that you obtain an experienced personal injury lawyer that is familiar with dealing with experts and complicated cases. Obtaining the right expert for your case and obtaining the best evidence from that expert can be the difference between winning and losing a case.
If you or a loved one have been injured, please contact McLeish Orlando Lawyers LLP.
Written By: Nick Todorovic and Daniel Garas, Summer Student
Can plaintiffs request a mediation to take place even before things, such as discoveries, have occurred? Section 258.6(1) of the Insurance Act, a provision that is not well known, actually provides for mandatory mediations. The provision states the following:
258.6 (1) A person making a claim for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile and an insurer that is defending an action in respect of the claim on behalf of an insured or that receives a notice under clause 258.3 (1) (b) in respect of the claim shall, on the request of either of them, participate in a mediation of the claim in accordance with the procedures prescribed by the regulations.
Failure to comply
(2) In an action in respect of the claim, a person’s failure to comply with this section shall be considered by the court in awarding costs.
DECISION BY JUSTICE FIRESTONE
In the 2018 decision of Thomson v Portelance, Plaintiff wished to schedule a mediation prior to examination for discoveries so that the “action [could] be set down for trial as soon as possible in order to advance the litigation expeditiously.” Not surprisingly, the Defendants, in this case, refused to schedule the mediation before the discoveries.
Justice Firestone held that “once a party requests that mediation be scheduled, the other party cannot delay the scheduling of the mediation until the completion of a specific event in the litigation process. The appointment of a mediator and scheduling of mediation is in no way contingent on the completion of discovery.”
When a plaintiff requests that mediation be scheduled under section 258.6(1), the defendant has a “positive obligation to appoint, schedule and conduct such mediation within the timeframes and procedures set forth” under 258.6(1) of the Insurance Act.
What this means is that if mediation is requested under the relevant provision of the Insurance Act, the parties must proceed to prepare for that mediation – through the appointment of a mutually agreed-upon mediator. A defendant cannot refuse mediation simply because different procedures within the litigation process which typically occur before mediation, have yet to take place.
Requesting mediation under section 258.6(1) will help plaintiffs get over the currently mandatory mediation hurdle much faster and allow claims to be resolved expeditiously, which in turn has the potential of relieving the backlogged court system.
 Thomson v Portelance, 2018 ONSC 1278.
 Ibid at para 1.
 Ibid at para 11.
Written By: Nick Todorovic and Emma Pedota, Summer Student
So, you have been in a car collision. Now what? Here is how to achieve the best possible outcome in a less than favorable situation.
As difficult as it may seem, remain calm. If you or any other passengers are injured, call 911 and wait for emergency responders to arrive. Describe all injuries and symptoms to the paramedics at the scene. In the event that you have lost consciousness or memory, or are unsure if you did, inform the paramedics as soon as possible so they are aware of any possible sustained head injuries. It is crucial not to withhold details of your symptoms or injuries to the paramedics attending the scene to ensure that you are being treated accordingly and there is an adequate record of your initial symptoms, should you choose to bring forward a personal injury claim.
Do not voluntarily assume liability or take responsibility, sign statements regarding fault, or promise to pay for damage at the scene of the collision. Save your recollection of the events for the police and avoid talking to anyone about the details of the collision.
If and when it is safe to do so, take pictures/videos of the scene and the damage to the vehicles. Provide the other driver(s) with your vehicle registration number, license information, your name, address, and insurance details. You will want to collect the same information along with the make, model, and license plate numbers of all other vehicles involved. Record as much information as possible about the collision and those involved, including the contact information of any witnesses.
Make inquiries into any dash cams or surveillance videos that may have recorded the collision. If you were a cyclist involved in a motor vehicle collision, get a repair estimate of your bike from a repair shop. Should you chose to bring forward an insurance claim and your insurance company approves the estimate, you may have your bike repaired at the repair shop of your choice.
Report all symptoms or injuries to any treatment provider as soon as possible and on an ongoing basis. If you require ongoing treatment or cannot work, contact your insurance company and open an accident benefits claim. If you are not personally insured, open an accident benefits claim with the insurer of the other driver(s) involved in the collision.
It is highly recommended that you speak to a personal injury lawyer as soon as possible after the collision. By consulting a lawyer early in the process, you will get the help you need in navigating the complexities of motor vehicle collisions. You will also have better access to the legal resources you need to get compensated for the injuries and damages you or your loved ones have suffered. Contact the lawyers at McLeish Orlando for a free consultation or visit our website.
To learn more about common mistakes to avoid after an auto collision, click here.
Written By: Lindsay Charles and Emma Pedota, Summer Student
Certain safety equipment is required while onboard a stand-up paddleboard (SUP boarding), canoe, and kayak as these human-powered boats are subject to the Small Vessel Regulations. For example, if you’re operating a paddleboard, kayak, or canoe without a personal flotation device (PFD), you could be fined $200 plus $100 for each missing flotation device and be subject to provincial surcharges. The required equipment must be carried on board, be in good working order, maintained according to the manufacturer’s instructions, and available immediately in case of an emergency.
MANDATORY SAFETY EQUIPMENT REQUIREMENTS FOR STAND UP PADDLEBOARDS (SUP)
If you are SUP boardings for non-navigational purposes, such as doing yoga or surfing, you do not need to bring any of the following equipment with you.
|PFD||Personal Lifesaving Appliance||You are required to wear a Canadian-approved PFD. Inflatable PFDs are not legal for white-water paddling as they are not inherently buoyant. For a PFD to meet safety regulations you have to be wearing it while you’re on the water.
Inflatable PFDs are prohibited for children under 16.
|Sound Signalling Device||Audio Signal||A sound signaling device can be in the form of a whistle, pealess whistle, air horns, etc., and often come with an approved PFD.
|Flashlight||Visual Signal||If your paddleboard is more than 6 meters long, as is the case with most paddle boards, you will need a watertight flashlight.
A flashlight is especially important when paddleboarding before sunrise, at sunset, or in any condition with reduced visibility.
OPTIONAL SAFTEY EQUIPTMENT
If you are wearing a PDF of appropriate size and paddling in a kayak or SUP board after sunset or before sunrise or in conditions of restricted visibility, you are only required to carry a sound-signaling device and a watertight flashlight. However, there are other safety devices that can increase your safety in an emergency situation when SUP boarding.
|Ankle or Waist belt Leash
|Personal Lifesaving Appliance||This is a cord that attaches to the rear of your board and then connects to your ankle via ankle cuff.
If you fall off your paddleboard, your leash will ensure that the board does not drift away from you and remains attached.
Parks Canada recommends the use of an appropriate ankle or waistbelt leash. While Transport Canada has supported the use of a leash while paddleboarding, they have emphasized that it is not a replacement for PFDs.
|Flares||Visual Signal||If you plan on paddling somewhere that’s more than 1.852km (one nautical mile) you are required to carry 6 flares.
Even if you’re exempt, it’s important to turn your mind to
where and when you will be paddling, and whether carrying flares may assist you in a foreseeable emergency situation.
|Radar Reflector||Navigation Equipment||A radar reflector is not required for boats under 20m, however small, non-metal boats such as paddleboards are not detected on the radar systems of larger boats.
In high traffic waters or in restricted visibility a GPS and a radio will advise bigger boats of your location and limit the potential of a collision.
|Compass||Navigation Equipment||If your boat is less than 8m long and you’re paddling within sight of navigation marks, you’re not required to have a compass. However, a compass can be useful if you are paddleboarding in foggy conditions where navigation marks may be difficult to see.
MANDATORY SAFETY EQUIPMENT REQUIREMENTS FOR KAYAKS & CANOES
|PFD||Personal Lifesaving Appliance||See description above|
|Sound Signalling Device||Audio Signal||See description above|
|Flashlight||Visual Signal||See description above|
OPTIONAL SAFETY EQUIPMENT FOR KAYAKS & CANOES
|(1) Reboarding device||Personal Lifesaving Appliance||Refers to a ladder, lifting harness, or other devices that do not include part of the vessel’s propulsion unit and assist a person to gain access to the vessel from the water.
|(1) Buoyant Heaving Line at least 15 m||Personal Lifesaving Appliance||A buoyant heaving line is a floating rope that has a soft buoyant object on the end. The line can be thrown towards a person in the water for them to hold onto while you pull them alongside.|
|Flares||Visual Signal||See description above|
|Radar Reflector||Navigation Equipment||See description above|
|Bailer||Vessel Safety Equipment||See description above|
|Compass||Navigation Equipment||See description above
Before heading out on the water it’s important to know what mandatory equipment is required on board to ensure that you are safe while enjoying the water.
 Government of Canada, Safety Equipment for Pleasure Craft (continued) (June 28, 2021), online: Justice Laws Website < https://laws-lois.justice.gc.ca/eng/regulations/sor-2010-91/page-6.html>.
 MEC, On-Water Safety: Mandatory Gear, online: Mountain Equipment Coop, < https://www.mec.ca/en/explore/mandatory-paddling-gear>.
 Transport Canada, Safety Equipment (April 14, 2014), online: Government of Canada < https://tc.canada.ca/en/marine-transportation/marine-safety/4-safety-equipment>.
 Boat-Ed, Buoyant Heaving Lines and Lifebuoys, online: Kalkomey < https://www.boat-ed.com/canada/studyGuide/Buoyant-Heaving-Lines-and-Lifebuoys/101199_115754/#:~:text=Buoyant%20heaving%20lines%20and%20lifebuoys%20are%20personal%20lifesaving%20appliances%20that,a%20person%20in%20the%20water.>
Written By: Patrick Brown and Daniel Garas, Summer Student
In the recent decision of Moore v 7595611, the Ontario Court of Appeal upheld an award of $250,000 for loss of care, guidance, and companionship – a new watermark for damages of this kind.
The previous high-end for this head of damages was $100,000, established in To v. Toronto (City) Board of Education. This 2001 decision involved a student that was killed during his physical education class when the handball net, on which he was doing pull-ups, fell on his head. Under loss of care, guidance, and companionship, the parents were each awarded $100,000 – an award that would not be interfered with by the Ontario Court of Appeal.
In the decision released on June 25, 2021, a unanimous Court dismissed the appeal by the numbered company. The Appellant, among other issues raised, challenged the jury award for loss of care, guidance, and companionship ($250,000 to each Plaintiff).
This case arose when the Plaintiffs’ daughter, as tenant, suffered serious injuries which she sustained during a house fire. She was trapped, with no way of escape, and later died at Sunnybrook Hospital.  The Plaintiffs decided to commence an action against the Defendants for their negligent conduct.
The numbered company cited To v. Toronto (City) Board of Education, for the proposition that the award of $250,000 was too high. The Appellants specifically quote paragraph 37 of the To decision, where the Court held that the $100,000 award represented the “high end of an accepted range of guidance, care, and companionship damages.”
Despite this, the Court held that the threshold for interfering with a jury award is “extremely high” and in the present case, agreed with the Plaintiffs’ that it should not interfere because the high standard had not been met. The Court further noted that the decision in To stated that “each case must be given separate consideration.”
The Court of Appeal states that ultimately “there is no neat mathematical formula that can be applied to determine the correct amount” when calculating this type of damages.
In summary, Justice Fairburn writes that “while there is no question that the jury award for loss of care, guidance, and companionship, in this case, is high, in light of the factual backdrop of this case, it does not constitute an amount that ‘shocks the conscience of the court’…Nor does it represent an amount that is ‘so inordinately high’ that it is ‘wholly erroneous’ in nature.” (Emphasis is my own)
WHAT THIS ALSO MEANS
Even though this case deals with the loss of a daughter, the amount and decision by the court of appeal should impact all awards relating to loss of care, guidance, and companionship (including loss of spouse, parent, grandparent) as well as adjusting the ranges given by judges at trial.
If you or a loved one has been injured, please contact the lawyers at McLeish Orlando LLP for a free consultation.
 Moore v. 7595611 Canada Corp., 2021 ONCA 459 [Moore].
 To v. Toronto (City) Board of Education, 150 O.A.C. 54, 204 D.L.R. (4th) 704 [Toronto Board].
 Ibid at para 3.
 Ibid at para 31.
 Moore, supra note 1 at para 1.
 Ibid at paras 2 and 3.
 Ibid at para 22.
 Ibid; Toronto Board, supra note 2 at para 37.
 Moore, supra note 1 at para 24.
 Ibid at para 26.
 Ibid at para 27; Toronto Board, supra note 2 at para 29.
 Moore, supra note 1 at para 27.
 Ibid at para 30.
Written By: Lindsay Charles and Sonam Sapra, Summer Student
In Canada, about 30% of traffic fatalities and 40% of serious personal injuries occur at intersections. These alarming statistics clearly illustrate why intersections are regarded as one of the most dangerous locations on a roadway.
Why are Intersections Dangerous?
In Ontario, there are two main types of intersections: controlled and uncontrolled. Controlled intersections generally have traffic lights, yield signs or stop signs that work to control traffic. Controlled intersections are usually found in urban areas. On the other hand, uncontrolled intersections do not have signs or traffic lights and are usually found in areas where there is no traffic, such as rural areas. While different, both types of intersections are equally as dangerous.
Controlled intersections are considered dangerous locations on the roadway because they are high conflict zones. More specifically, controlled intersections usually have multiple roads that cross over each other, right-turning lanes, left-turning lanes, bicycle lanes, and pedestrians in the same area – all of which give rise to the possibility of conflicts that can result in collisions. Uncontrolled intersections might be less busy than controlled intersections as they are located in more rural areas, however, at these intersections, collisions occur at high speeds making them particularly severe.
There are four main types of collisions that occur at an intersection: side-impact collisions, also known as T-bone collisions, head-on collisions, left-turn collisions, and rear-end collisions. Further, at intersections, both cyclists and pedestrians can be struck by motor vehicles. Side-impact, or T-Bone, and head-on collisions can have very serious consequences and often result in fatalities, especially when the vehicles involved are traveling at high speeds.
With the high rate of collisions occurring at intersections, the National Highway Traffic Safety Administration (“NHTSA”), run by the United States Department of Transportation sought to identify the leading causes of intersections collisions by conducting an on-scene study.
The Leading Cause of Intersection Collisions
The study by the NHTSA identified six critical driver-attributed causes of intersection crashes. The NHTSA observed 756,570 intersection-related collisions and concluded that inadequate surveillance by drivers was the leading cause of intersection collisions, accounting for 44.1% of the crashes. The remaining causes identified by the study include: the false assumption of the other’s actions, turned with an obstructed view, illegal maneuver, internal distraction, and finally, misjudgment of gap or other’s speed.
How We Can Help
Ultimately, collisions at intersections can result in serious personal injuries, and determining who is at fault can be a complicated and arduous process. The lawyers at McLeish Orlando can help navigate the process and alleviate the stress that arises from such a collision.