Judge Critical of Both Counsels’ Jury Addresses

Posted on May 27, 2009 by Stephen Cavanagh

The ruling of Mr. Justice Peter Lauwers in Trypis v. Lavigne is helpful for trial lawyers because it deals with aspects of counsels’ jury addresses that Justice Lauwers held to be improper.

This was a slip and fall case. At trial, counsel for the plaintiff opened to the jury. The defence lawyer did not immediately object and he delivered his own opening address. The next day though, defence counsel said that overnight, he had concluded that the address of the plaintiffs’ lawyer had been “way over the line” and “extremely inflammatory”. He asked for a mistrial. On the argument of the mistrial motion (which took place later during the trial), counsel for the plaintiff raised his own objections to what had been said in the defence opening.

Justice Lauwers dismissed the motion for a mistrial. He agreed that some aspects of the addresses on both sides had been improper, but decided that he could provide corrective instruction to the jury, largely because the transgressions, in his view,  had not been severe. His instruction to the jury is appended to his reasons and is worth reading.

 Address by plaintiffs’ counsel

Justice Lauwers referred to the well-known text by Justice Donald S. Ferguson and others, Ontario Court Procedure, as well as to the Court of Appeal’s decision in Brochu v. Pond, for the proposition that inflammatory remarks, argument and the expression of the personal opinions of counsel are all impermissible in an opening address to the  jury.

Here, the defence took exception to the following statement by plaintiffs’ counsel: “”Only the six of you have the power to right a wrong. Only the six of you have the power to award full and fair compensation. Only the six of you have the power to do justice in this case.”

Interestingly, Justice Lauwers quoted from a book by Barrie lawyer Roger Oatley, Addressing the Jury, in which Mr. Oatley recommends that, when acting for a plaintiff, “you want each juror…to feel motivated and empowered to right the wrong done to your client” and “to be committed to action for righting a wrong.” Justice Lauwers remarked that the “virtual quotes” from the Oatley text by plaintiffs’ counsel in his address, had gone “well beyond persuasive narrative” and amounted to argument. In his corrective instruction, Justice Lauwers told the jury, in no uncertain terms, that counsel’s exhortation that the jurors “right a wrong” was inflammatory and should be disregarded. Likewise, of the portion of the address in which counsel had told the jury that “only the six of you have the power to do justice in this case”, Justice Lauwers told the jury, “that is not your role”.

Another aspect of the address by plaintiffs’ counsel that was criticized by Lauwers J. also related to the jury’s role. Counsel had told the jury that “you’re the judicial system in this case”. Justice Lauwers said that this was simply inaccurate, that the members of the jury had a role to play in the judicial system but that so did the parties, the lawyers and the judge himself.

Justice Lauwers also criticized plaintiffs’ counsel’s statement that  “”[y]ou have power to decide on justice between Phil Trypis and his family on the one hand and the Lavigne family on the other hand, it’s your power.” His Honour, in his corrective instructions, said, ” [i]t is not appropriate for you to take sides in this case in the way that Mr. Will’s [plaintiffs’ counsel] statement suggests.”

Address by defence counsel

The main problem with this address was the following statement, made by counsel about his clients, the defendants: “Make no mistake about it, they are being asked to pay a lot of money, hundreds of thousands of dollars, so that’s what this case is about.”

Justice Lauwers felt that this might have misled the jurors into thinking that an award of damages would have to be paid by the defendants personally. In his corrective instruction, he said, “it implies wrongly that the personal assets of the defendants are at risk here and that they have no homeowners’ insurance. Ability to pay is, in any event, an irrelevant consideration.”

(We’ve obviously come a long way from the days when a mistrial could result from suggesting to a jury that there was insurance to respond to the claim. It seems that now, it’s improper to suggest that there is not insurance available.)

Defence counsel also drew some criticism for characterizing the litigation as a “family feud”. Justice Lauwers said that this was inflammatory and might encourage the jury to take sides.

All in all, an instructive read for both plaintiffs’ and defendants’ lawyers.

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“Minimal Financial Risk” to Law Firm in Prosecuting AB Claim in Catastrophic Case, So Substantial Fee Premium Not Appropriate

Posted on May 27, 2009 by Stephen Cavanagh

In Adler v. State Farm Automobile Insurance Company, Madam Justice Nancy Spies dealt with an application by the law firm of Aylesworth LLP for court approval of lawyer-client fees and disbursements, to be paid out of the proceeds of the settlement of an accident benefits claim. Her decision wasn’t particularly good news for the plaintiffs’ bar (although she did approve payment of a premium on legal fees). She said that litigating accident benefits claims does not entail much financial risk to law firms. Insurance companies (and probably plaintiffs’ lawyers) will be surprised to hear that she based this conclusion on the proposition that insurers are obliged to negotiate lump sum settlements of accident benefits claims in catastrophic cases. So far as we’re aware, no such obligation exists in the contract, the statute or the caselaw. If that is so, does accident benefit litigation actually involve financial risk to the law firm that should be recognized in costs premiums? On what principles should cost premiums in such cases be approved?

Here, the claim had been prosecuted against State Farm Automobile Insurance Company on behalf of a catastrophically-injured young man. The lawyers had negotiated a lump sum settlement of the accident benefits claim, in the amount of $1.25 million. They had a contingency fee agreement with the plaintiff which provided for a fee of 30% of of all amounts recovered for damages, accident benefits and interest.

There have been several previous decisions regarding costs in this case. They can be found here, here and here.  Those rulings were all made by Mr. Justice John Wilkins and they too dealt with the fees of the plaintiff’s lawyers. Justice Spies ended up dealing with the matter because the relationship between Justice Wilkins and counsel had become so strained that Justice Wilkins recuse himself.

In one of his rulings, Justice Wilkins observed that “[g]enerally speaking, there is not a great deal of legal work required to process and collect all of the benefits to which an injured person is honestly entitled”. He contrasted the litigation of accident benefits cases with tort actions. The latter, he said, “frequently involve issues of liability and they have the requirement of proof on the balance of probabilities” while an AB claim “is very different in nature, particularly when the demonstrable injuries are catastrophic, the needs of the claimant are patent and the wording of the Act, the regulations and the policy are applicable”.

 Justice Wilkins also observed that, prior to Aylesworth having become involved, the insurer had offered $1 million in settlement, so he felt that the law firm’s efforts  had really only gotten an additional $250,000 for its client. The fee that it was seeking ($179,000) was 71.6% of the additional $250,000 and the firm had docketed time of only $3,972.50.

Continue reading →

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Court Orders Insurer to Pay for Defence by Counsel Chosen by Insured

Posted on May 12, 2009 by Stephen Cavanagh

Coakley v. Allstate is another case that deals with the problem of whether an insurer owes a duty to defend a claim that includes allegations of intentional conduct. What made this case a bit unusual is that (a) the motion seeking an order that the insurer (Allstate) pay for the defence took place only weeks before the commencement of the trial; and (b) the insurer’s duty to defend had already been decided on another motion, before another judge.

This motion was heard by Madam Justice Thea P. Herman. The insured was seeking a declaration that Allstate owed a duty to defend a claim against its insured, in which the insured is alleged to have pushed the plaintiff through a door. In that action, the insured had brought a third party claim against Allstate, which had refused to defend the action. The trial is scheduled to begin on May 25, 2009.

(Allstate’s denial was based on the fact that the underlying action alleged intentional conduct by the insured, although negligence had also been pleaded. Some readers will recall that a similar issue arose in the recent case of Glassford v. TD Home and Auto Insurance Company, which we discussed in a post last month. Justice Herman also referred to the Glassford case.)

Prior to the motion before Herman J., Allstate had brought its own motion, for summary judgment. It had moved, approximately one year ago, seeking dismissal of the insured’s third party claim, on the basis that there was no genuine issue for trial. That motion was heard by Madam Justice Ellen MacDonald about a year ago, in May, 2008. She dismissed the motion. Strangely, according to the reasons of Justice Herman, the parties were never able to agree as to just what Justice MacDonald had decided, so no formal order was ever taken out.

Thus, one of the issues before Herman J. was the ainsured’s submission, that the issue of duty to defend had been rendered res judicata by the ruling of MacDonald J.

Justice Herman considered the reasons of her colleague, Justice MacDonald from last year’s motion. There, Justice MacDonald had said, “I have concluded, based on all the above, that this being a motion for summary judgment, Allstate has a duty to defend Coakley and indemnify him for any loss that Coakley may incur if it is found that his acts were negligent.” Justice Herman was satisfied that even though the motion before Justice MacDonald had been brought by Allstate, the issue of duty to defend had been determined in favour of the insured. Accordingly, Justice Herman refused to revisit that issue.

However, the insured’s motion before Herman J. raised a second issue, one which had not been decided by Justice MacDonald. Counsel for the insured asked the court to order that he be permitted to continue with the defence, but at Allstate’s expense. This is too is a familiar problem, dating back to the 1988 decision in Laurencine v. Jardine and dealt with by the Court of Appeal most recently in Appin v. Economical Mutual Insurance Co., a 2008 decision. Justice Herman was satisfied that there would be an appearance of conflict if Allstate were permitted to conduct the defence through counsel appointed by it, so he ordered that the insured be permitted to continue with his own lawyer, except that all past and future defence costs are to be paid by Allstate. He said:

As in Glassford, the question of whether Mr. Oakley will be indemnified by the insurance policy depends on a determination and characterization of his conduct in the litigation. There is an ongoing dispute between Mr. Oakley and Allied as to whether he is excluded from coverage. Mr. Oakley is concerned that the insurer may steer the defence of the action in order to obtain a result in its favour, that is, a result that would exclude him from coverage. In my opinion, a reasonable person would perceive a conflict of interest.

In our commentary on the Glassford case, we have already expressed our concerns about a duty to defend being found to exist in these “self defence” cases, where it is typically the allegations made in the statement of defence that generate the duty to defend. But given the state of the jurisprudence, Allstate must have known that its position (particularly after having had the issue decided against it on its own motion a year ago) was not a promising one. Perhaps Justice Herman’s ruling will make settlement of next month’s trial more likely?

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C.A. Clarifies Requirements for Non-earner Benefits

Posted on May 12, 2009 by Stephen Cavanagh

It was apparent from its ruling yesterday in Heath v. Economical Mutual Insurance Company, that the Court of Appeal was not very impressed with the trial decision of Mr. Justice John C. Kennedy.

The plaintiff had been involved in a rear-end collision in 1998. At the trial in 2006, Justice Kennedy held that “a claimant is entitled to non-worker benefits for the first 156 weeks following his accident provided that he suffers ‘a partial inability to carry on a normal life. That test changes after 156 weeks to the following: The plaintiff must have sustained “a complete inability to engage in substantially all of the activities in which he or she would ordinarily engage.”ice Kennedy had awarded to the plaintff non-earner accident benefits and declared that the ““entitlement to nonearner benefits [shall] continue as long as he remains in the condition where he suffers from [a] complete inability to engage in substantially all of the activities in which he would ordinarily engage.”

But the Court of Appeal set aside Justice Kennedy’s decision and dismissed the plaintiff’s action against Economical Mutual because the trial judge had applied the wrong legal test (which is rather surprising, given that the correct test is clearly set out in a regulation to the Insurance Act).

The Court observed that “the entirety of the trial judge’s reasons” on the issue of entitlement to a non-earner benefit consisted of the following two paragraphs:

I am satisfied that the plaintiff has met the onus of establishing that his injuries and his impairment from chronic pain have continuously prevented him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

He is a lonely man, who has few friends and contacts, whose activities are substantially impaired and I accept the fact that he must pace himself as a result of his continued, constant and chronic pain. I accept the fact that part of the problem is that he has de-conditioned.

The trial judge set out in his reasons various formulations of the test for entitlement to a non-earner benefit, several of which were, said the Court of Appeal, “plainly wrong” and “inaccurate”. For instance, Justice Kennedy said in his reasons that “the plaintiff is entitled to non-worker benefits for the first 156 weeks following his accident provided that he suffers ‘a partial inability to carry on a normal life’.” He added that “that test changes after 156 weeks to the following: The plaintiff must have sustained ‘a complete inability to engage in substantially all of the activities in which he or she would ordinarily engage.'” In fact, the requirement in the Statutory Accident Benefits Schedule is that the claimant experience a complete, not a “partial”, inability to carry on a normal life. And that must occur within two years, not three years, of the accident.

The Court noted that, in other parts of his reasons, Justice Kennedy had described the applicable test in a way that more closely approximated the actual wording of the regulation. But it remained convinced that Kennedy J.’s decision had been “tainted” because of various misapprehensions of the evidence on his part.

The decision has some broader value to practitioners because the Court of Appeal observed that claims for non-earner benefits had not been the subject of much discussion before the courts. In its reasons, the Court of Appeal distilled from the decisions a set of “general principles” to be applied to such claims. Those general principles appear at paragraph 50 of the reasons. In a nutshell though, the principles are these:

  • The starting point will usually be a comparison of the claimant’s pre- and post-accident activities and life circumstances;
  • The court should not look only at a “snapshot” of the claimant’s activities during the period immediately preceding the accident, but should consider such longer period as is warranted by the circumstances of the case;
  • Although all of the claimant’s activities should be considered, greater weight may be given to those that he or she identifies as having been important to his or her pre-accident life;
  • The claimant must do more than prove that his or her life was changed by the accident. “Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities.”
  • The manner in which the claimant carries on an activity is to be considered. If he or she can only go through the motions, it cannot be said that this amounts to an ability to “engage in” the activity.

Having this set of guidelines from the Court of Appeal at least salvages something from a dispute that has evidently been going on, in some form, for some twenty years.

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Judge Disqualifies Expert for Lack of Impartiality

Posted on May 11, 2009 by Stephen Cavanagh

In a recent decision, Madam Justice Ellen MacDonald refused to permit a defence expert to give opinion evidence at trial. After reviewing a series of email messages that had been exchanged between the expert and certain of the defendants and after conducting a voir dire, she concluded that the expert’s “role as an independent expert was very much secondary to the role of ‘someone who is trying to their best for their client to counter the other side'” and refused to allow the expert’s opinion into evidence.

The case is Alfano v. Piersanti. An earlier ruling, in which Her Honour had ordered the production of the email messages, can be found here.

The expert in question, Ronald Anson-Cartwright, was retained by some of the defendants to assist with some financial and accounting issues. On the voir dire before Justice MacDonald, it emerged that in his report, Mr. Anson-Cartwright had “based his analysis of the defence position on the theories advanced by Mr. Piersanti [a defendant]. In his closing submissions on the voir dire, Mr. Diamond [counsel for the plaintiffs] stated that the two reports ‘are replete on every page with not only findings of fact, findings of credibility, but conclusions as to what the evidence is literally and what legal conclusions should be, not just factual conclusions’.” Her Honour seems to have accepted this submission, as she found that Mr. Anson-Cartwright was “disqualified as an expert in this case”.

Her Honour cited various cases as authority for the role of the trial judge as “gatekeeper” when it comes to expert evidence.

To the extent that there really is a requirement for experts to be impartial (as to which, see our comments at the end of this post), we think that Justice MacDonald’s analysis is sound. However, we are somewhat concerned about fhe factual underpinnings of the decision. Unfortunately, not much detail is given in the reasons as to just what was so objectionable about the correspondence exchanaged between the expert and the defendants. What appears to have troubled the judge the most was the expert’s reliance on theories that had been given to him by the one of the defendants. Justice MacDonald observed that as a result, Mr. Anson-Cartwright “did not complete independent verification of key issues in accordance with the standards that are expected of an expert”.

We would have thought that shortcomings in the factual investigation done by the expert would more properly be the subject of cross-examination at trial. Or, if the case were one in which the expert had been asked to render an opinion based on a hypothetical set of assumptions, then cross-examination would presumably have demonstrated that the assumptions could not be proved. It will often be the case that, to some extent, the expert has been given an incomplete and perhaps even a slanted version of the facts. We would not expect this factor alone to disqualify him or her, at least not on grounds of lacking impartiality. How much the facts relied on by this expert were coloured by their source is difficult to determine from the decision, since the reasons contain no examples or excerpts from the email messages.

However, Justice MacDonald clearly did also think that the expert had become an advocate for the defendant who had retained him. Again, it would have been helpful to have some examples showing how this partisanship had manifested itself here, so that the practicins bar might better be able to judge what is kosher and what is not.

The extent to which an expert must be impartial in order to be able to give opinion evidence is, we think, not so clear as this decision would suggest. Four years ago, in Tri-Co v. Paterson, one of us was before the Court of Appeal, arguing that the plaintiff’s principal witness at trial (the plaintiff’s accountant) ought not to have been permitted to give evidence as a lay witness and that he could not have been qualified as an expert because he was not impartial. The Court of Appeal pooh-poohed this argument. (Actually, it agreed with the first submission but not the second.)  The Court said in that case:

While there may be limited circumstances in which an otherwise qualified expert would not be permitted to give expert evidence because of lack of neutrality (rather than have the weight given to their evidence diminished), in our view, this is not such a case. Mr. Simpson’s long association with the respondent made him the ideal person to give the fact evidence that formed the underpinning of the lost profits calculation. To the extent that Mr. Simpson’s evidence may have crossed the line into opinion, it did not duplicate the evidence of other witnesses and the trial judge took account of its frailties in assessing its weight. In the circumstances, we are not persuaded that admitting Mr. Simpson’s opinion evidence amounted to reversible error. [Emphasis added]

In the course of argument, the panel questioned whether it was really true, as suggested by Bank of Montral v. Citak and several other trial level decisions, that it is imperative that an expert be impartial. One member of the panel gave the example of police officers testifying at criminal trials arising out of motor vehicle accidents. There is no suggestion, said the justice, that the officers are impartial, but they are not prevented from giving expert testimony on that basis.

So, we await with interest the Court of Appeal’s view of the “limited circumstances” in which the permissible limits of partiality are exceeded by an expert witness. For the time being, we are uncertain as to what those limits might be.

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C.A. Says Money Paid Pursuant to Mary Carter Agreement Must Be Deducted from Jury’s Award at Trial (Reducing Plaintiff’s Recovery to Zero)

Posted on May 7, 2009 by Stephen Cavanagh

Today’s decision of the Court of Appeal in Laudon v. Roberts was bad news for two of the three parties (the plaintiff and one defendant) but very good news for the other defendant.

The action arose out of a boating accident in which the plaintiff Laudon had been injured. Sullivan was operating one of two boats that had collided and Roberts was operating the other. The plaintiff had received a total of $438,000 from one defendant (Roberts) prior to trial, pursuant to a Mary Carter agreement (“MCA”). (Under a “Mary Carter agreement”, the settling defendant agrees to pay a certain amount to the plaintiff, in exchange for an agreement by the plaintiff, not to pursue recovery of any more money from that defendant at trial. Usually, there is also a provision whereby the settling defendant is protected against crossclaims or other subsidiary claims that it might otherwise face from other parties, seeking contribution or indemnity. So, the settling defendant “caps” its liability by entering into the MCA.)

The jury assessed damages at $312,021 and found the non-settling defendant (Sullivan) 39% at fault. The trial judge, Mr. Justice Guy P. DiTomaso,  awarded judgment against the defendant Sullivan in the sum of $121,688.19 (39% of $312,021), exclusive of interest.

Sullivan appealed, arguing that money paid under the MCA  should be deducted from the award, reducing Sullivan’s payment to zero. The trial judge had rejected this argument. His ruling would have permitted  the plaintiff to retain both the MCA payment and the trial award. However, the Court of Appeal allowed Sullivan’s appeal and set aside the judgment given at trial. It dismissed the plaintiff’s claim against Sullivan and awarded costs to Sullivan, to be paid by the plaintiff.

There were some unusual features of the arrangement that was entered into in this case. The parties had asked the trial judge to rule, at the beginning of the trial, on whether or not the amount paid by Roberts under the MCA was deductible from any sums that Sullivan might be found liable to pay to the plaintiff. Justice DiTomaso ruled that the MCA payment was not deductible. The Court of Appeal held that he should not have made this ruling at the beginning of the trial, when the issue was only a hypothetical one. Instead, a ruling should have been rendered after the jury’s verdict. (And, of course, the Court held that the ruling should have been to the opposite effect, that the MCA payment was deducible.)

The Court of Appeal observed that usually, MCA’s give to the settling defendant the opportunity to recoup some of its payment, in the event that the plaintiff recovers judgment for more than the amount of the payment. However, there was no such provision in the agreement entered into in this case.

On the appeal, counsel for Roberts argued for reimbursement out of the amount found by the jury to be payable by Sullivan. However, the Court rejected this request, noting that Roberts had failed to cross-appeal from the decision of DiTomaso J. In addition, at the opening of trial, both Sullivan and Roberts had consented to the dismissal of the crossclaims between them, so even if Roberts had cross-appealed, the Court of Appeal was satisfied that he had given up any right of recovery that he might otherwise have had against Sullivan.

So, the decision was a small windfall for the plaintiff, who received from Roberts $365,000 for damages and interest on a claim judged by a jury to be worth $312,021 (before interest). Sullivan received a large windfall, by not having to pay any of the $121,688 for which the jury had found it liable and (to add insult to injury), by receiving an award of costs, payable by the plaintiff.

Roberts’ insurer, on the other hand, will probably think twice before entering into another Mary Carter agreement…

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Div. Ct. Allows Addition of Defendant After Expiry of Limitation Period, Based on Discoverability

Posted on April 23, 2009 by Stephen Cavanagh

In Toneguzzo v. Corner, the Divisional Court dismissed an appeal from a decision of Justice Lynda Templeton, allowing the addition of a defendant after the expiry of the limitation period. While Justice Templeton rested her decision on “special circumstances”, the Divisional Court panel preferred to base its ruling on the discoverability principle (although it also cited “special circumstances” as an alternative ground).

The case arose out of a very familiar set of facts. The plaintiff was seriously injured in a collision with a tractor trailer on May 29, 2001. The police report identified one person (“Corner”) as the driver and another (“Way”) as the registered owner of the truck. As well, the police report said that the truck was insured by Lloyd’s of London.

The lawyer for the plaintiff commenced proceedings against Corner and Way. It was alleged in that pleading, that Corner had been the driver of the tractor trailer and that Way was the owner. A statement of defence was delivered on behalf of Corner and Way, admitting the allegation of ownership by Way. (It is not clear whether or not that defence was delivered by counsel retained by Lloyd’s. Ultimately, Lloyd’s denied coverage and had itself added to the action as a statutory third party. In its own statement of defence, Lloyd’s pleaded that it had “no knowledge” of the allegations regarding ownership of the truck by Way.)

In 2004, Way was examined for discovery and he swore that he was the owner of the vehicle.

In 2005, Way and Corner changed lawyers and the new lawyer raised, for the first time, an issue as to whether Way was, in fact, the owner of the truck. The lawyer for the plaintiff then arranged for a search to be done of the vehicle’s ownership and learned that in fact, it was owned by a company called “LAKES Leasing Corporation”.

The plaintiffs moved for leave to add LAKES as a defendant. Lloyds opposed the motion.

Justice Templeton’s reasons were largely taken up with a consideration of whether or not the enactment of the Limitations Act, 2002 had eliminated the court’s discretion to add defendants after the expiry of a limitation period in “special circumstances”. Her decision pre-dated the Court of Appeal’s decisions on this point in Joseph v. Paramount and Meady v. Greyhound, both of which were decided on June 12, 2008. Those decisions resolved a conflict that had existed in the lower court decisions. They made it clear that the former “special circumstances” power no longer exists, but that the old law (including “special circumstances”) continues to apply to cases falling under the transitional provisions of s. 24 of the Limitations Act, 2002.

Justice Templeton found that special circumstances were present here, warranting the addition of LAKES as a defendant in the action, notwithstanding the expiry of the limitation period. She had concluded that the “special circumstances” power survived the enactment of the Limitations Act, 2002. The Court of Appeal’s decisions last year make it clear that this conclusion was incorrect. However, in this case, the accident happened on May 29, 2001, which would mean that the limitation period expired on May 29, 2003, prior to the effective date of the Limitations Act, 2002. The Court of Appeal’s decision in Meady would preserve the “special circumstances” power in these circumstances, with the result that Justice Templeton’s application of that principle is defensible.

But to return to the Divisional Court’s decision, the panel dismissed the appeal but said, “We are of the view that the principle of discoverability was determinative of the issue before the motion judge and that it was not necessary for her to consider special circumstances.” (As noted above though, the Court did note that if it was wrong about the applicability of the discoverability principle, the facts “overwhelmingly constitute special circumstances”.)

Counsel for Lloyd’s had argued that the plaintiffs had failed to show due diligence and that they should not be permitted to rely on the discoverability principle. Although not referred to in the Court’s reasons, Lloyd’s relied on a decision of Mr. Justice Paul Perell in Ioannou v. Evans, albeit that case dealt with “special circumstances”.  Perell J. had refused to add a vehicle’s owner as  defendant after the expiry of a limitation period, in circumstances somewhat similar to those in this case. He noted that “the rudimentary and handy step of a licence plate search was not performed” by the plaintiff’s lawyer and that accordingly, there were no “special circumstances”. It would seem that the Divisional Court took a different view as to whether it is incumbent on plaintiffs’ lawyers to conduct ownership searches in every case. Continue reading →

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Plaintiff in Prior Litigation Allowed to Give Evidence About IME Psychiatrist in Another Lawsuit

Posted on April 16, 2009 by Stephen Cavanagh

Master Robert Beaudoin has released an interesting ruling, dealing with a new (to us, anyway) wrinkle on independent medical examinations in personal injury actions.

The case was Safi v. Steele. Shortly before the scheduled trial date, counsel for the defence moved for an order requiring the plaintiff to submit to an examination by psychiatrist Dr. Robert Notkin. Counsel for the plaintiff oppposed the motion. As part of her case, she filed an affidavit from a woman (“Scott”) who had been involved in an earlier lawsuit and who had, herself, undergone an IME with Dr. Notkin. Her affidavit apparently described that examination. (It also appears from the Master’s reasons, that the witness Scott had also given an affidavit about Dr. Notkin in yet another proceeding.)

Counsel for the defendant asked the Master to strike the affidavit, on the basis that admitting it into evidence would have breached the deemed undertaking rule. However, the Master pointed out that “the rule should be limited to and enforceable only by the producing party” and on that basis, held that the affidavit could be received into evidence.

However, Master Beaudoin felt that very little weight should be placed on Ms. Scott’s affidavit. She had been cross-examined by defence counsel and in the course of that examination, had refused to produce any portion of her solicitor’s file from the earlier litigation. The Master said that parties who choose to become involved in other proceedings “must be prepared to have [their] credibility challenged and be questioned about the earlier proceeding”. He went on to say that “[h]ad Defendant’s counsel pushed the point further, I would have ordered the production of the medical portions of her file. If Ms. Scott, or any other Plaintiff, seeks to rely on their own litigation experience and become involved in another party’s proceedings, they cannot hide behind claims of privilege and they open themselves to a full inquiry into their own case.”

 This ruling will probably prevent or at least reduce the practice of using affidavits from plaintiffs in previous proceedings.

(On the other hand, it did appear from the reasons, that the plaintiff might have had legitimate cause for concern. Dr. Notkin evidently admitted, when he was cross-examined, that in 2007, he had written an article in which he had said that “Two-thirds of personal injury people are malingering.”)

The Master was neverthless prepared to order that the plaintiff be examined by Dr. Notkin. However, he would have imposed a number of conditions (no further psychometric testing, Farsi interpreter and the examination to last no longer than three hours. Dr. Notkin was not prepared to conduct the assessment under these conditions.

Finally, counsel for the plaintiff wanted to have the examination videotaped. It appears from his reasons that Master Beaudoin would have been prepared to order that an examination by Dr. Notkin be videotaped but he was not willing to make a “blanket” videotaping order that would apply, regardless of who else might ultimately conduct the examination.

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Judge Says Bill 198 Threshold Aimed at Tightening Up the Insurance Act Threshold “By Reducing the Number of Litigants Able to Sue”

Posted on April 16, 2009 by Stephen Cavanagh

About a year ago,  Justice Johanne Morissette’s decision in Nissan v. McNamee  was released. Her Honour concluded that the Bill 198 version of the Insurance Act threshold in MVA cases had not effected much of a change from the previous regime.

In January of this year, her colleague, Justice Jane Milanetti came to a different conclusion. In Sherman v. Guckelsberger, Justice Milanetti held that the Bill 198 provisions were meant to  “tighten up” the threshold.

Now, a new decision, supporting Justice Milanetti’s interpretation of the legislation, will be applauded by insurers. Mr. Justice George Valin concluded, in Sabourin v. Dominion of Canada General Insurance Company, that the legislature’s intention, in enacting Bill 198, had been “to tighten up the threshold by reducing the number of litigants able to sue”.

This was a fairly typical soft tissue or “whiplash” case. The plaintiff’s car had been struck from the rear and had been moved ahead a short distance, striking the car in front of hers.

The plaintiff complained of severe headaches, neck and shoulder pain and disrupted sleep.

Justice Valin had some reservations about the plaintiff’s credibility, saying that “the nature and number of inconsistencies in the plaintiff’s evidence, and the contradictions with the evidence of other witnesses called on her behalf, are too numerous and too significant to ignore”. Despite this, he accepted that  “she experienced and continues to experience some pain and discomfort from the soft tissue injury she suffered in the accident, and that it has had an impact on the quality of life she enjoyed before the accident.”

His Honour elaborated on his finding, that the plaintiff did have some real symptoms:

[95] It is clear that, as a result of the accident, the plaintiff suffered a soft tissue injury. I accept that a person can suffer pain from a whiplash injury in circumstances where there are no objective medical findings to support their complaint. I agree with the comment of Little J. in Guerrero v. Fukuda that “pain, and its degree of severity, are subjective and can exist without any objective finding”.

[96] In this case, I have no doubt that the plaintiff has experienced pain in her neck and right shoulder since the accident. The issue is the severity of the pain and whether it has substantially interfered with most of the usual activities of daily living for a person her age.

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Posted in Auto, Insurance News, Threshold | Comments Off on Judge Says Bill 198 Threshold Aimed at Tightening Up the Insurance Act Threshold “By Reducing the Number of Litigants Able to Sue”

Defendant in One MVA Action Entitled to Proceed with Third Party Claim Against Driver in Earlier Accident

Posted on April 13, 2009 by Stephen Cavanagh

Another shot has been fired in the ongoing judicial debate about how to deal with situations in which personal injury plaintiffs have been injured in separate accidents. We have looked at this issue in previous posts regarding Willoughby v. Weber, Broadbent v. GTTA and Misko v. Doe. The latest treatment of the issue comes from Kingston’s Madam Justice Helen MacLeod-Beliveau, in Thompson v. Sullivan.

The plaintiff was injured in two accidents, one on January 27, 2004 and the other on August 4, 2005. The injuries suffered in the two accidents were similar (neck and back pain). She did not commence an action as a result of the first accident but she did sue for damages consequent upon the 2005 MVA. On March 17, 2008, the defendants in that suit brought a third party claim against the driver in the 2004, claiming that his negligence had caused or contributed to the injuries for which the plaintiff was seeking damages. The third party claim had been brought within two years of the defendants having learned about the prior accident, but at a time when the right of the plaintiff herself to sue the driver in the 2004 accident, had become statute-barred.

The third parties brought this motion under Rule 21, asking that the third party action be dismissed or alternatively, that the plaintiff be required to limit her claim to compensation for injuries arising solely from the 2005 accident.

Justice MacLeod-Beliveau dismissed the motion, ruling that it was not “plain and obvious” that the defendants had no reasonable cause of action against the third parties. In her reasons, she considered all of the decisions mentioned above.

Her Honour pointed out, quite accurately in our view, that the Court of Appeal’s decision in Misko v. Doe was easily distinguishable because there, the plaintiff had undertaken to seek only those damages that were attributable to the accident that was the subject of his lawsuit.

After discussing the Willoughby case, Justice MacLeod-Beliveau extracted the following principle:

Together, Misko, supra and Willoughby, supra stand for the proposition that, where the plaintiff has no claim against third parties (either because of an express release, as in Misko, supra, or because of the expiration of a limitation period, as in Willoughby, supra), then the defendants are not entitled to issue a third party claim. Instead, they are immune to liability for any injuries proceeding from the previous accident, i.e. any injuries caused by the third parties. The defendants are only liable for the injuries that they caused in the second accident.

Counsel for the third parties was undoubtedly happy with this statement of the law. However, Her Honour then went on to rule that the above principle did not apply in this case and that, as a result, the third parties’ motion should be dismissed. She reasoned that this was not the type of described in cases like Misko or Willoughby, where the plaintiff had no cause of action against the third parties because of a settlement or the expiry of a limitation period. There had clearly been no settlement (since the plaintiff had never claimed against the third parties). And with respect to the limitation period, Justice MacLeod-Beliveau had this to say:

The applicable limitation period should not be that of the plaintiff as against the third parties, but rather that of the defendants against the third parties. As such, in this case, the limitation period has not expired.

 

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Posted in Practice and Procedure, Tort News | Comments Off on Defendant in One MVA Action Entitled to Proceed with Third Party Claim Against Driver in Earlier Accident