Category Archives: Evidence

Developments in the law of evidence.

Lawyers’ affidavits: beware!

Another decision of Justice Frederick L. Myers. I can’t help it, he’s very quotable. In Ferreira v. Cardenas, 2014 ONSC 7119 (CanLII), he was dealing with a motion for summary judgment on the liability issue in an action arising out of … Continue reading

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Divisional Court Clarifies Expert Witness Rule

January 15, 2014. I understand that leave to appeal this decision has been granted. In Westerhof v. Gee (Estate), 2013 ONSC 2093 (CanLII), the Divisional Court (Matlow, Aston & Lederer JJ.) has addressed an area of the law that has … Continue reading

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Cases Take Different Approaches to Exclusion of Plaintiffs from Each Other’s Examination for Discovery

In a recent ruling, Mr. Justice Robert Smith was asked to order that three plaintiffs in a personal injury action be examined for discovery in the absence of each other. The case is Heasley v. Labelle, 2013 ONSC 2601 (CanLII). One … Continue reading

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Rule 53.03 Applies Only To “Litigation Experts”

In Continental v. J.J.’s Hospitality, 2012 ONSC 1751 (CanLII), Mr. Justice Edward J. Koke has provided the latest judicial interpretation of Rule 53.03, which deals with the evidence of expert witnesses. He held that that rule only applies to “litigation experts”, … Continue reading

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Brown J. Discusses Waiver of Privilege

In Ebrahim v. Continental Precious Minerals, 2012 ONSC 1123 (CanLII), Mr. Justice David M. Brown undertook a fairly comprehensive analysis of the circumstances in which both lawyer-client privilege and litigation privilege will be found to have been waived. The discussion arose … Continue reading

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Opinion Evidence: Is There An “Ordinary Work” Exception That Makes It Admissible Although R. 53.03 Requirements Not Met?

UPDATE: These three decisions are now available on CanLII, here, here and here. Two days ago, Bruce Mitchell of Windsor sent along some interesting decisions of Madam Justice Darla Wilson, all rendered last month in a case that is now … Continue reading

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Plaintiff’s Family Doctor Permitted To Testify As Standard of Care Expert In Medical Malpractice Case

The debate continues as to whether family physicians may testify as experts or only as fact witnesses. In this case, the issue arose with a bit of a twist: the court opened the door for the plaintiff’s family doctor to … Continue reading

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Treating Physicians: Fact or Expert Witnesses?

Leonard v. Kline, 2011 ONSC 2730 (CanLII) is a personal injury action arising out of a motor vehicle accident. The plaintiff sought leave from Mr. Justice Gregory Ellies to call ten experts. (Section 12 of the Evidence Act requires that … Continue reading

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Rules 4.01 and 53.03 Held Not To Apply To Experts Retained by Non-parties

Madam Justice Helen MacLeod-Beliveau has released a decision that might have very significant implications for civil litigation. Although the action involved a personal injury claim, its implications extend to expert witnesses in any civil lawsuit. In McNeill v. Filthaut, 2011 ONSC … Continue reading

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Div. Ct. Takes Liberal Approach to Affidavits on Information and Belief

In Carevest Capital Inc. v. North Tech Electronics Ltd. et al., 2010 ONSC 1290 the Divisional Court allowed an appeal from a ruling by Mr. Justice Ted Matlow, in which he had refused to admit two affidavits on a motion … Continue reading

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