Legal Context in Personal Injury Claims

Transcription

1 BERTSCHI ORTH SOLICITORS AND BARRISTERS LLP/s.r.l. - Lawyers/Avocat(e)s - Legal Context in Personal Injury Claims David A. Bertschi special thanks to our associate Ms. Aruba Mustafa 1

2 Disclaimer Our comments should not be viewed as a substitute for legal advice. If you require legal advice, you should hire a lawyer, who can acquire an understanding of your particular circumstances, and apply the up to date applicable law to your case. Our comments are to give you some background and some ideas, not legal advice and this does not constitute a complete statement of the law. 2

3 Canada Common Law vs Civil Law [INSERT MAP OF CANADA] 3

4 Québec Québec is the only province in Canada that operates under a civil law system. Québec s laws are codified in the Civil Code of Québec. 4

5 Information on Québec Civil Code Québec Civil Code Like Louisiana in the US, Québec, is the only jurisdiction in Canada which is governed by the Napoleonic Civil Code. Quebec: Code of Civil Procedure, CQLR c C 25.0 The 10 books of the Civil Code contain 3168 articles Article 18: Guiding Principles Articles 145 & 247: Pleadings / Summons Article 286(b): Medical Examination 5

6 Common Law 6

7 Common Law 1. Legal Basis of a Claim (Tort, SABS, WSIB, LTD) 2. Procedure 3. Evidence 4. Damages 7

8 Legal Basis of a Claim Tort Claim 8

9 Legal Basis of a Claim A tort claim is a Civil wrong. Generally heard in SCJ(O) Accident Benefit claims as of June 1, 2016 disputed before the LAT Worker s Compensation claims are heard before the Workers Safety and Insurance Board Tribunal (of Ontario). Disability cases are heard before the SCJ(O) Each administrative or judicial body has it s own set of rules and practices and different powers. 9

10 Tort Claims Personal Injury Claims Is a duty of care owed? Was the standard of care breached? Did the act or omission cause the damage? Are the damages remote? Donoghue v. Stevenson [1932] UKHL

11 To whom does one owe a Duty of Care? The neighbour principle : You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question. Donoghue v Stevenson (supra) 11

12 To whom does one owe a Duty of Care? 12

13 To whom does one owe a Duty of Care? 13

14 Canadian Application Neighbour Principle 14

15 Canadian Application Neighbour Principle The first question to consider in an action for negligence is whether the defendant owed the plaintiff a duty of care. The question focuses on the relationship between the parties. It asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, para 4: 15

16 Standard of Care The reasonable person test: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Blyth v. Birmingham Water Works Co. (1856), 156 E.R (Eng. Exch.), per Alderson 16

17 Canadian Reasonable Person The defendant is held to be responsible for all consequences that in the foresight of a prudent person may result Yachuk v. Oliver Blais Co. (1945), [1946] S.C.R. 1 (S.C.C.), at para

18 Standard of Care The standard of care by which a jury is to judge the conduct of parties in a case of the kind under consideration is the care that would have been taken in the circumstances by "a reasonable and prudent man". I shall not attempt to formulate a comprehensive definition of "a reasonable man" of whom we speak so frequently in negligence cases. I simply say he is a mythical creature of the law whose conduct is the standard by which the Courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances as they may exist from time to time. He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard "adopted in the community by persons of ordinary intelligence and prudence Arland v. Taylor, 1955 Carswell Ont 44, para 29. (Ont. CA). 18

19 Causation Tort Athey v. Leonati, is the leading Canadian case on causation in tort law. Major J. reiterated the following well established principles: 1) The general, but not conclusive, test for proof of causation is the but for test, which requires a plaintiff to show that his or her injury would not have occurred but for the negligence of the defendant (para. 14). 2) In certain circumstances, where the but for test is un workable, causation may also be established where it is demonstrated that the defendant's negligence materially contributed to the occurrence of the tort victim's injury. It is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury (paras. 15 and 17). 3) Liability will be imposed on a defendant for injuries caused or materially contributed to by his or her negligence. That liability is not reduced by the existence of other non tortious contributing causes (paras. 22 and 23). [Citations omitted.] Athey v Leonati, [1996] 3 SCR 458, para

20 Pre conditions Material Contribution 1. Multiple tortfeasors involved. 2. Impossible for plaintiff to prove using but for test; 3. Impossibility due to factors outside Plaintiff s control. Material Contribution test is applied: Where the defendant s negligence materially contributed to the occurrence of the injury A contributing factor is material if it falls outside the de minimis range Athey v. Leonati, [1996] 3 SCR 458, para

21 Causation in doubt? The basic test in Tort remains the but for test. The But for test provides that the But for negligent act or omission of each defendant, the injury would not have occurred. The material contribution test only applies in exceptional cases where factors outside of the plaintiff s control make it impossible for the plaintiff to prove that the defendant s negligence caused the plaintiff s injury by using the but for test, and the plaintiff s injury falls within the ambit of the risk created by the defendant s breach of his duty of care owed to the plaintiff. Hanke v. Resurfice Corp., 2007 SCC 7, paras

22 But for + Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about the injury. In other words, the injury would not have occurred without the defendant's negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. Test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant's negligence made to the injury. Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, para

23 Negligence Act Where parties are deemed equally at fault Section 4. If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent. R.S.O. 1990, c. N.1, s

24 Tort Threshold The Insurance Act requires that: Non pecuniary loss (5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non pecuniary loss, including damages for non pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained, a. permanent serious disfigurement; or b. permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3). Section 267.5(5) 24

25 Accident Benefits or First Party Claims Accident Benefits or SABS Benefits are claimed pursuant to an Automobile Policy. The policy is regulated by provincial Insurance Act. Legislation extends the availability of Accident Benefits to many parties Insurance Act, RSO, 1990 c I.8; O. Reg. 34/10: Statutory Accident Benefits Schedule. 25

26 SABS Benefits Ontario s no fault accident benefits extends first party benefits to at fault and not at fault parties in most cases. Exceptions include: Impaired driving and lack of consent 26

27 SABS Benefits SABS Benefits to Claimants in Ontario are quite generous. a. Income replacement benefits. b. Non earner benefits. c. Medical rehabilitation benefits. d. Attendant care benefits. e. Housekeeping and home maintenance benefits (CAT) You can purchase additional benefits by paying an additional premium 27

28 Income Replacement Benefits An insured who sustains an impairment as a result of an accident may qualify for an income replacement benefit (IRB) if: a) they were employed at the time of the accident or signed a contract of employment; and, b) as a result of and within 104 weeks after the accident, they suffer a substantial inability to perform the essential tasks of that employment. A Plaintiff has the onus of proof on a balance of probabilities. Insurance Act, Statutory Accident Benefits Schedule O. Reg. 34/10, s. 5(1) 28

29 Non Earner Benefits For accidents after June 1, 2016 the maximum accident benefits available for NEB. $ x 104 weeks (N.B. There is a non paying 4 week waiting period). Previously: $ per week until the second anniversary, where the rate could increase to $ until the age of 65 and thereafter formulaic reduction. 29

30 Med/Rehab Benefits Sections Entitled to: Section 15 list (a) to (h) a) medical, surgical, dental, optometric, hospital, nursing, ambulance, audiometric and speech language pathology services; b) chiropractic, psychological, occupational therapy and physiotherapy services; c) medication; d) prescription eyewear; e) dentures and other dental devices; f) hearing aids, wheelchairs or other mobility devices, prostheses, orthotics and other assistive devices; g) transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant; h) other goods and services of a medical nature that the insured person requires, other than goods or services for which a benefit is otherwise provided in this Regulation. 30

31 Med/Rehab Exceptions Exceptions Section 15(2) Insurer does not have to pay for: Goods or services that are experimental Exceed max rate i.e. for MIG Unauthorized transportation expenses 31

32 Catastrophic Impairment Definition Catastrophic impairment have been defined since November 1, The SABS underwent amendments in 2010 and encompassed injuries such as: Amputations Lee v. State Farm Mutual Automobile Insurance Co [2006] O.F.S.C.O. No. 17 B.(D.) v. Economical Mutual Insurance Co. [2013] CarswellOnt Brain injuries Cordeiro v. Wawanesa Mutual Insurance Co. [2007] O.F.S.C.O. No. 64 Watters v. State Farm, FSCO A ( ) Physical and Mental impairments Augello v. Economical Mutual Insurance Co. [2008] O.F.S.C.O. No. 189 Pastore v. Aviva Canada Inc. [2012] CarswellOnt Vision loss; Paraplegia and quadriplegia; Significant Amendments effective June 1, 2016, 32

33 Catastrophic Impairment CAT Amendments Definitional Changes WPI evaluation of an injured person post 3 months using AMA Guide 4 th ed. to determine Threshold at or above 55%. Paraplegia or tetraplegia Amputation Vision Brain 18 or older Under 18 Physical and/or Physical and Mental/Behavioral Impairments Guide 6 th ed. (excluding TBI) 33

34 Interpretation by LAT The overall objective of the Insurance Act emphasizes consumer protection and the relevant provisions should be interpreted in a fair, liberal and purposive manner to achieve the objectives of protecting the insured s rights to SABS Walker v. The Co Operators General Insurance Company, No S/AABS 34

35 SABS Causation Material contribution : Causation is established where the defendant contributed to the injury/damages outside the range of de minimis. a benefits claimant's impairment is shown on the "but for" or material contribution causation tests to have resulted from an accident in respect of which the claimant is insured, the insurer's liability for accident benefits is engaged in accordance with the provisions of the SABS. (para 96) Monks v. ING Insurance Co of Canada, 2008 ONCA

36 SABS Causation Clarified? A three judge panel of the Ontario Divisional Court declined to address whether the but for or the material contribution applied because of the conclusions they reached based on the evidence. The Court did note, however, that "[t]he circumstances are... much closer to the case where the Applicant is simply unable to meet the burden of establishing that his injuries would not have resulted 'but for' the Accident". Sabadash v. Jevco Insurance Co., [2018] OJ No

37 SABS Causation Clarified? Confirmation that the correct test to be applied for causation in accident benefits cases is the but for test. In short, Director s Delegate David Evans found that the but for test is paramount in determining causation in accident benefits cases. State Farm and Sabadash (Appeal P ) 37

38 SABS Causation Summary The LAT appears to have recognized the shift away from the material contribution test and apply the but for test for causation. Acceptance of material Contribution test (Monks, Ontario Court of Appeal) Re-emphasis on but for test and shift away from material contribution (Blakes, Ontario Court of Appeal) Blakes, addressed in later FSCO case, days of material contribution test are numbered (Agyapong, FSCO) Most Recently: but for test is the primary test (Sabaadash, FSCO Appeal) BUT: FSCO decisions remain inconsistent and continue to apply material contribution test. 38

39 Workers Compensation A worker s compensation claim may preclude a tort claim. Eligibility; a) worker employer relationship with coverage paid to WSIB b) an injury or illness directly related to their undertaking work c) a claim with the WSIB d) Consent to the release of functional abilities information to your employer by the health care professional treating you Workplace Safety and Insurance Act, 1997, S.O. 1997, CHAPTER 16, SCHEDULE A 39

40 WSIB Health Professional Report [Form 8 ] WSIB use external experts to medically review and assist staff. IMC s do file reviews, give opinions, but do not diagnose or examine workers or make file decisions. They answer medically related questions to enable WSIB staff to make informed decisions. Initial appeal appeal services division Appeals resolution officer Workplace Safety and Insurance Appeals Tribunal (WSIAT) 40

41 Disability Insurance Accident and sickness insurance" includes coverage for loss resulting from the sickness or disability of a person excluding loss resulting from an accident or death, or under which an insurer undertakes to pay insurance money in the event of the sickness or disability of a person not caused by an accident. It also means insurance under which an insurer undertakes to pay insurance money respecting the health care, including the dental care and the preventive care, of a person. Accident and Sickness Insurance Part VII of the Insurance Act. 41

42 42

43 Litigation Time Line Statement of Claim (Two year limitation period) Discovery Plan (within 60 days at the close of Pleadings) Affidavit of Documents, Examination for Discovery Set Matter for Trial Trial (matter to be set down five years after the Statement of Claim has been Issued) Statement of Defence [20, 40,60 days or waiver] Mediation (within 180 days after first Defence filed City of Ottawa, City of Toronto and County of Essex) Pre Trial (Expert Report due 90 days before Pre Trial) 43

44 Litigation Process Overview 2 year Limitation period ultimate bar to a claim Limitations Act, 2002, S.O. 2002, c. 24, Sched. B 44

45 Litigation Process : Pleadings Prayer for Relief Include Material Facts Allegations Types of Damages 45

46 Productions Party to Serve Affidavit of Documents (1) A party to an action shall serve on every other party an Affidavit of Documents (Form 30A or 30B) disclosing to the full extent of the party s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party s possession, control or power. O. Reg. 438/08, s. 27 (1). Contents (2) The affidavit shall list and describe, in separate schedules, all documents relevant to any matter in issue in the action, (a) that are in the party s possession, control or power and that the party does not object to producing; (b) that are or were in the party s possession, control or power and for which the party claims privilege, and the grounds for the claim; and (c) that were formerly in the party s possession, control or power, but are no longer in the party s possession, control or power, whether or not privilege is claimed for them, together with a statement of when and how the party lost possession or control of or power over them and their present location. R.R.O. 1990, Reg. 194, r (2); O. Reg. 438/08, s. 27 (2). (3) The affidavit shall also contain a statement that the party has never had in the party s possession, control or power any document relevant to any matter in issue in the action other than those listed in the affidavit. R.R.O. 1990, Reg. 194, r (3); O. Reg. 438/08, s. 27 (3). 46

47 Scope of Productions Relevancy seems to be the only test by which to judge whether a document should be produced or not. Glowinsky v. Stephens & Rankin Inc., 1989 CarswellOnt 435, para 6 47

48 Litigation Process Discovery 48

49 Examination for Discovery Who? (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by Subrules (2) to (8). R.R.O. 1990, Reg. 194, r (1); O. Reg. 438/08, s. 28 (1). 49

50 Examination for Discovery How? (1) Subject to Subrule (2), an examination for discovery may take the form of an oral examination or, at the option of the examining party, an examination by written questions and answers R.R.O. 1990, Reg. 194, r (1). 2) Where more than one party is entitled to examine..discovery shall take the form of an oral examination, unless all the parties entitled to examine the person agree otherwise. R.R.O. 1990, Reg. 194, 50

51 Mandatory Mediation RULE 24.1 MANDATORY MEDIATION PURPOSE This Rule provides for mandatory Mediation in specified actions, in order to reduce cost and delay in litigation and facilitate the early and fair resolution of disputes. O. Reg. 453/98, s. 1; O. Reg. 198/05, s. 2; O. Reg. 438/08, s. 15. NATURE OF MEDIATION In Mediation, a neutral third party facilitates communication among the parties to a dispute, to assist them in reaching a mutually acceptable resolution. O. Reg. 453/98, s. 1. Time Limit (1) A Mediation session shall take place within 180 days after the first defence has been filed, unless the court orders otherwise. O. Reg. 453/98, s. 1; O. Reg. 438/08, s. 20 (1). 51

52 Medical Assessments Section 105 Courts of Justice Act. Rule of the Ontario Rules of Civil Procedure 52

53 Section 105 of the Courts of Justice Act Physical or Mental Examination Definition 105. (1) In this section, health practitioner means a person licensed to practise medicine or dentistry in Ontario or any other jurisdiction, a member of the College of Psychologists of Ontario or a person certified or registered as a psychologist by another jurisdiction. Order (2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners. 53

54 Defence Medical Assessments At the request of Defence Counsel Rules of Civil Procedure[Ontario] MOTION FOR MEDICAL EXAMINATION A Motion by an adverse party for an order under Section 105 of the Courts of Justice Act for the physical or mental examination of a party whose physical or mental condition is in question in a proceeding shall be made on notice to every other party. R.R.O. 1990, Reg

55 Application for Accident Benefits, OCF 1, to insurer Procedure SABS If benefit request denied, a claimant can dispute by filing a LAT Application 55

56 When Benefits Denied Resolution of disputes 280 (1) This section applies with respect to the resolution of disputes in respect of an insured person s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. 2014, c. 9, Sched. 3, s. 14. Application to Tribunal (2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1). 2014, c. 9, Sched. 3, s. 14. Insurance Act, RSO 1990, CHAPTER I.8 56

57 Independent Medical Evaluations S 44 Examination Required by Insurer 44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation. O. Reg. 34/10, s. 44 (1). 57

58 Process Overview WSIB 1. Report injury to employer 2. Report injury to WSIB online using Form 6 58

59 WSIB Employer Health Examinations Employer Request for Health Examination 36(1) Upon the request of his or her employer, a worker who claims or is receiving benefits under the insurance plan shall submit to a health examination by a health professional selected and paid for by the employer. Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A 59

60 Long Term Disability IME s in LTD cases are conducted pursuant to terms in the insurance policy. The wording in the policy is not standard and must be carefully reviewed to ascertain the applicable test. The test for consideration of benefits will generally vary at the two year mark (104 weeks). 60

61 Proof and Law of Evidence 61

62 Basic Rule of Evidence Information can be admitted as evidence only where it is relevant to a material issue in the case (starting point for relevance is the pleading); Evidence that is not directed at a matter in issue in the case is immaterial. The Law of Evidence, by David M. Paciocco and Lee Stuesser 62

63 Onus of Proof Burden or Onus of Proof : The person who makes an allegation has to prove the allegation. C. (R.) v. McDougall (2008), [2008] 3 S.C.R. 41 (S.C.C.). 63

64 Standard of Proof Balance of Probabilities. in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. C. (R.) v. McDougall (2008), [2008] 3 S.C.R. 41 (S.C.C.)., para 40 64

65 The Expert s Duty to be Independent Evidence presented to the Court must be an independent product. Evidence cannot be influenced by the exigencies of litigation. Experts must provide objective, unbiased opinions within their expertise.

66 Rule of the Rules of Civil Procedure Duty of Expert (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, Duty Prevails (a) to provide opinion evidence that is fair, objective and nonpartisan; (b) to provide opinion evidence that is related only to matters that are within the expert s area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg438/08, s. 8. (2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

67 Rule of the Rules of Civil Procedure (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre trial conference scheduled under subrule (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17. (2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s

68 Rule of the Rules of Civil Procedure Content of Report (2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information: 1. The expert s name, address and area of expertise. 2. The expert s qualifications and employment and educational experiences in his or her area of expertise. 3. The instructions provided to the expert in relation to the proceeding. 4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates. 5. The expert s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert s own opinion within that range. 6. The expert s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. 7. An acknowledgement of expert s duty (Form 53) signed by the expert. O. Reg. 438/08, s

69 ACKNOWLEDGMENT OF EXPERT S DUTY Form My name is...(name). I live at... (city), in the... (province/state) of... (name of province/state). 2. I have been engaged by or on behalf of... (name of party/parties) to provide evidence in relation to the above noted court proceeding. 3. I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows: (a) to provide opinion evidence that is fair, objective and non partisan; (b) b) to provide opinion evidence that is related only to matters that are within my area of expertise; and (c) to provide such additional assistance as the court may reasonably require, to determine a matter in issue. 4. I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged. Date... Signature 69

70 Section 12 of the Ontario Evidence Act Expert Evidence 12. Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding. R.S.O. 1990, c. E.23, s. 12.

71 Expert Opinion R v. Mohan [1994] 2 SCR 9 (CanLII) Mouvement laïque Québécois v. Saguenay (City), 2015, SCC 16 (CanLII) White Bergess Langille Inman v. Abbott and Haliburton Co., 2015, SCC 23 (CanLII)

72 R v. Mohan Test for admitting expert evidence Expert evidence must satisfy four criteria for admission: Relevance Necessity Absence of an exclusionary rule; Properly qualified expert

73 EXCLUDING AN EXPERT S TESTIMONY ON THE BASIS OF BIAS.For expert testimony to be inadmissible...what must be determined is whether the expert s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case. (Saguenay, para. 106)

74 White Burgess v. Abbott: What is the test for excluding an expert s testimony on the basis of bias? The key question is, whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non partisan and objective assistance. (White Burgess, para. 50)

75 Meeting with Counsel Justice Sharpe for a unanimous Court of Appeal: While it is improper for counsel to interfere with the independence and objectivity of expert witnesses, that independence and objectivity is fostered under existing law and practice ; and It would be bad policy to disturb the well established practice of counsel meeting with expert witnesses to review draft reports;...experts need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case. Moore v. Getahun, 2015 ONCA 55(CanLII)

76 Factors Considered by Trial Judge in Bruff Murphy v. Gunawardena Experts fees and past retainers restricted Report was presented in an adversarial format Approach to his assessment was problematic Recollection of what the plaintiff told him during his assessment was not credible and could not be supported with Dr. s clinical notes Area of expertise or semi psychiatric element of report represented ½ page of a 20 page report No psychiatric tests undertaken of the plaintiff during his assessment

77 Bruff Murphy v. Gunawardena, 2017 ONCA Reinforced prior jurisprudence that one cannot cross examine an expert on their previous testimony. 2. The gatekeeper role on qualifying an expert includes 2 components: a) Threshold requirements R v. Mohan. b) discretionary gatekeeper: cost benefit analysis i) potential bias/impartiality; ii) independence. 3. Gatekeeper role continues throughout the trial. 77

78 Bruff Murphy v. Gunawardena, 2017 ONCA 502 Major Concerns of Court of Appeal: 1. Methodology adopted. 2. Bulk of report recitation of inconsistencies. 3. Report dangerously close to usurping role of jury. 4. Tone of report comments treating doctors negatively. 5. Test results used to fit theory. 6. Asked about physical condition to compare with surveillance. 78

79 Recent Evidentiary Issue: Psychological Injury Expert Evidence of proof of a medical diagnosis of psychological illness is not required for Plaintiff to recover damages for psychological injury. Saadati v. Moorhead, 2017 SCC 28 79

80 Threshold in Ontario Non pecuniary loss (5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non pecuniary loss, including damages for non pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained, (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3). Section 267.5(5) 80

81 Statutory Definition Case law definition of PSI was codified by O. Reg. 381/03, Section (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met: 1. The impairment must, i. substantially interfere with the person s ability to work. ii. substantially interfere with most of the usual activities of daily living, considering the person s age. 81

82 Statutory Definition 2. For the function that is impaired to be an important function of the impaired person, the function must, i. be necessary to perform the activities that are essential tasks of the person s regular or usual employment ii. iii. be necessary for the person to provide for his or her own care or well being, or be important to the usual activities of daily living, considering the person s age. 82

83 Statutory Definition 3. For the impairment to be permanent, the impairment must, i.... continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, ii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. 83

84 EVIDENCE ADDUCED TO PROVE PSI 4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person s claim that he or she has PSI (2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains, (a) the nature of the impairment; (b) the permanence of the impairment; (c) the specific function that is impaired; and (d) the importance of the specific function to the person. 84

85 EVIDENCE ADDUCED TO PROVE PSI (3) The evidence of the physician, (a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and (b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine. (4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. (5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function. 85

86 Recent Evidentiary Issue: Psychological Injury Expert Evidence of proof of a medical diagnosis of psychological illness is not required for Plaintiff to recover damages for psychological injury. Saadati v. Moorhead, 2017 SCC 28 86

87 The Valuation and Assessment of Damages in Tort Law a. General damages /Nonpecuniary damages b. Special damages: i. Past and future loss of income. ii. Past and future housekeeping and homemaking. iii. Past and future medical and rehabilitation costs. iv. Past and future attendant care cost. v. Other Past and Future pecuniary damages/expenses. 87

88 Tort Damages General Damages. Pain and Suffering 1978 trilogy $100,000 which is indexed now at $361,254 Family Law Act, R.S.O., 1990, c.f 3 claims. Spouses and family members who have sustained a loss of care, guidance and companionship 88

89 Monetary Threshold The Vanishing Deductible The threshold at which NO deductible is applied was: For an Injured party: general damages for pain and suffering $100,000 For FLA claimants: Loss of care, guidance and companionship, $50,000 Indexation began on August 1, 2015 as a result of O.Reg 461/96. As of January 1, 2018: Non pecuniary deductible for injured parties: $126, Non pecuniary deductible FLA : $63,

90 Monetary Threshold Indexation began on August 1, 2015 as a result of O.Reg 461/96. As of January 1, 2018: Non pecuniary deductible for injured parties: $126, Non pecuniary deductible FLA : $63,

91 Deductible Indexed Statutory Deductible Currently, $37, applies where injuries are assessed at less than $126, for non-pecuniary damages. $18, applies where family members are awarded less than $63, for the loss of care, guidance and companionship. 91

92 Future Losses The standard of proof for establishing a claim for future cost of care is the same as the standard of proof for establishing any kind of future pecuniary loss simply a real and substantial risk of pecuniary loss not that a future loss will occur on a balance of probabilities. Graham v. Rourke (1990) 75 O.R. (2d) 622 at pp 634 5; 74 D.L.R. (4th) 1(C.A.) 92

93 Limitations on Cross-Examination It is not proper to cross-examine on the fact that his or her testimony has been rejected or disbelieved in previous cases. R v Samra(1998), 41 OR (3d) 434 (CA) Desbiens v. Mordini, 2004 CanLII (ON SC) Bruff Murphy v. Gunawardena, 2017 ONCA 502

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