Ontario Trial Lawyers Association Case Summaries – June 6, 2016

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Ontario Trial Lawyers Association Case Summaries – June 6, 2016

Singer Kwinter’s Nga Dang highlights important facts and outcomes in the Ontario Courts.


Case summary originally distributed in OTLA May 30, 2016 newsletter. 

Leon v. Toronto Transit Commission, 2016 ONSC 3394 (CanLII)

The Divisional Court provides an analysis on the law on spoliation and the relevance of medical records more than 5 years pre-accident.

Released May 30, 2016 | Full Decision [CanLII]

The Plaintiff appealed from a judgment dated March 13, 2014 following a jury trial which found no liability on part of the TTC. The Plaintiff was a passenger on a TTC Bus on August 20, 2010. She alleged that before she was able to sit down, the bus accelerated and she fell resulting in injuries to her right shoulder, back and right knee. A police officer attended the scene and after interviewing some witnesses, he concluded that he did not think the Plaintiff had fallen so he did not file a report.  He did, however, relay the information to a TTC supervisor. The TTC was put on notice on October 6, 2010.

The Plaintiff appealed the trial judge’s rulings regarding the spoliation of video evidence and the production of extensive clinical notes and records. The Divisional Court provided a detailed analysis which will not be repeated here, but I encourage everyone to read the decision.

The video footage from the cameras installed on the TTC bus in question was not preserved. The Plaintiff sought an order that an adverse inference be drawn against the TTC for failing to preserve the video. The trial judge concluded that the Plaintiff had not established the requisite intent necessary to support a claim of spoliation of evidence. The Divisional Court confirmed that the trial judge correctly set out the law on spoliation in his reasons, which can be summarized as follows: “Spoliation in law, however, does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation.” The Divisional Court concluded that given the evidence presented, the trial judge did not make any palpable and overriding errors in dealing with the spoliation issue.

Prior to trial, the Plaintiff produced to the TTC clinical notes of her family doctor, Dr. Rose, for five years pre-accident and forward. The Plaintiff had testified that she had no problems with her shoulder before the accident. During examination-in-chief, Dr. Rose testified that he was unaware of any pre-existing injuries. During cross-examination, counsel for the TTC asked for an opportunity to review all of Dr. Rose’s clinical notes that he brought, which dated back to 1972. The Plaintiff objected. The trial judge adjourned to allow counsel an opportunity to review the records and make submissions on the extent of disclosure. The notes revealed that the Plaintiff had problems with her right shoulder, knee, and back areas before the TTC accident. The trial judge allowed defence to cross-examine Dr. Rose on all of the records.

The Divisional Court held that the trial judge did not err by allowing production of all clinical notes and by allowing counsel to examine the clinical notes and make submissions before he ruled on admissibility. The Divisional Court further stated that it would have been a palpable and overriding error if the trial judge had ruled on admissibility of the notes without reviewing them first. This was not a Brown v. Dunn situation since Dr. Rose was the Plaintiff’s witness; she had control over the use of her records and had the opportunity to review the entire file. The Divisional Court ultimately concluded that the pre-existing notes were relevant; the appellant had denied any prior problems and the records suggest otherwise. The Divisional Court also rejected this ground of appeal.

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Case summary originally distributed in OTLA May 26, 2016 newsletter. 

Romanoski Estate v. Seburn, 2016 ONSC 3481 (CanLII)

The mother pregnant with the deceased’s child is entitled to claim pursuant to section 61 of the Family Law Act.

Released May 26, 2016 | Full Decision [CanLII]

The Defendant brought a summary judgment motion arguing that the mother of an unborn child whose father died as a result of the negligence of another is not entitled to claim as a “spouse” under the Family Law Act (“FLA“). The deceased suffered fatal injuries in a car accident on August 5, 2008. The deceased and the plaintiff, Tracey, had lived together unmarried since January 2008. Tracey was pregnant with the deceased’s child, Tamia, who was born on March 11, 2009.

There was no disagreement that Tamia could pursue an FLA claim because the common law recognizes the property rights of a child en ventre sa mère. The issue was whether Tracey would qualify as a “spouse”. The FLA defined a “spouse” to include two persons who are not married to each other and have cohabited 1) continuously for a period of not less than three years, or 2) in a relationship of some permanence, if they are the natural or adoptive parents of a child. Sweeny J. rejected arguments using the definition of “child” to establish Tracey’s rights under the FLA. Sweeny J. reviewed theFLA and found that the purpose of the Act, its remedial nature, and the acknowledgement that both spouses have an obligation to support the child, support finding that Tracy, as the mother of Tamia, is a person who ought to be entitled to make a claim as a dependent under s. 61. Sweeny J. articulated that the it would be consistent with the legal fiction of en ventre sa mère; the birth of Tamia and the relationship between Tracey and the deceased prior to his death establish the “some permanence” requirement of the definition of “spouse” in Part III of the FLA. Therefore, Sweeny J. granted summary judgment in favour of the responding party, Tracey, by finding she was entitled to pursue an FLA claim.

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