Fraser v. Persaud, 2023 ONSC 1449

The plaintiff was involved in a relatively minor motor vehicle accident in 2015. She had been in a more serious accident in 2012 for which she was at fault. The plaintiff argued that she had been 80 to 90 percent recovered by the time of the 2015 accident. She returned to work for three years, but stopped working in 2018. She applied for and received LTD benefits and CPP disability benefits. She alleged ongoing chronic pain, headaches, depression, and fibromyalgia.

Justice Shaw accepted that her impairments were caused by the 2015 accident and that she was a thin skull plaintiff. The plaintiff was awarded damages totaling $1,009,250, broken down as follows: $175,000 in general damages; $116,382 for past loss of income; $375,590 for future loss of income; and $342,278 for future care. The plaintiff’s son was awarded $25,000 (gross) for loss of care, guidance, and companionship, and $25,000 for the value of services he provided to the plaintiff.

Tryon v. Packham, 2022 ONSC 7210

This personal injury MVA action was dismissed by a jury following a 13 day trial. The jury concluded that the defendant was not negligent despite having rear ended the plaintiff. The jury accepted that the accident was caused due to the defendant’s sudden seizure. The jury further held that it was reasonable for the defendant to have been driving, and that he had no reason to anticipate the onset of the seizure. The defendant was awarded costs in the full amount sought: $140,109.10 inclusive of HST. In its analysis, the Court considered the factors under Rule 57 and accepted the defendant’s submissions in that regard.

Waller v. Brown, 2022 ONSC 3510

The plaintiff was injured in a motor vehicle accident in 2015. A judge-alone trial proceeded on damages only. The plaintiff was 46 at the time of the accident, and was 52 at the time of trial. She suffered chronic pain syndrome and became highly dependent on medications and alcohol to alleviate her pain. She attempted to work after the accident, but had to quit her job about one year after the accident because she could not maintain her work obligations. Justice Muszynski found that the plaintiff suffered a threshold injury as a result of the accident. Justice Muszynski accepted the plaintiff’s experts, and awarded: $100,000 for general damages (gross); $38,371 for past loss of income; $201,294 for housekeeping; and $3,700 for out of pocket expenses. The plaintiff was also awarded future income loss and future care expenses. Justice Muszynski requested the parties’ assistance in quantifying the damages. For future income loss, Justice Muszynski held that the plaintiff would work until mid-2027 when the plaintiff’s son finished university. The accounting experts had not provided a present value calculation for that date. The future care costs were a mix of one time fees and annual fees. The one time fees were $54,972.55. The recurring fees were around $800 per year, and around $2,750 every three to five years.

Dulude v. Lawrence et al., 2022 ONSC 1034

The plaintiff and defendant in this personal injury action brought motions for various production issues in advance of a trial.

Justice Hackland held that the defendant was not required to produce the file from the medical assessment centre he used. Draft reports were covered by litigation privilege. If the defendant called any of the experts at trial then the plaintiff would be entitled to question the experts about their files because litigation privilege would then be waived.

Justice Hackland further held that the defendant was required to have his investigator provide retainer/instruction letters, investigation logs, and identities of persons who obtained surveillance unless the defendant undertook not to call the investigator at trial.

Finally, Justice Hackland held that the plaintiff was required to produce the discovery transcript, affidavit of documents, and answers to undertakings from her action against Great West Life (which had settled shortly before the motions). The issues in dispute were so similar across the two actions that trial fairness required the defendant to have access to the documentation. Justice Hackland waived the deemed undertaking rule if it applied, but noted that Great West Life did not oppose use of the documentation in the personal injury action.

Kapoor v. Kuzmanovski, 2018 ONSC 4770

The plaintiff in this Brampton action brought a motion to exclude individuals who drive and pay automobile insurance premiums as potential jurors in motor vehicle cases. The plaintiff argued that the financial obligation to pay automobile insurance premiums amounted to a personal interest adverse to the interests of plaintiffs in cases arising from motor vehicle accidents. The Court dismissed the plaintiff’s motion, holding that prospective jurors in motor vehicle accident cases who drive motor vehicles and are insured under motor vehicle insurance policies do not have an inherent conflict of interest. The Court found there was no evidence to demonstrate the presence of widespread bias among Brampton citizens as prospective jurors, against the interests of the plaintiff in this case or generally among similarly situated plaintiffs.