Nayar v. Doe (2008) BCSC 1320 (BCSCJ)

Nayar v. Doe (2008) BCSC 1320 (BCSCJ)

In Nayar, the court followed the precedent established in Guiliani v. Saville to find that a plaintiff who put his hands on the hood of the defendant’s vehicle was not contributory negligent when the defendant accelerated and hit the plaintiff.

The facts as accepted by the court were as follows.  The plaintiff was a gas station attendant who followed the defendant as she was slowly driving away without paying for gas.   The plaintiff was under the impression that the defendant simply forgot to pay.  The plaintiff put himself in front of the defendant’s vehicle with his palms out.  The defendant began revving the engine of her vehicle and inching it towards the plaintiff.  The plaintiff then proceeded to place his hands on the hood of the defendant’s vehicle.  The defendant accelerated, hitting the plaintiff in knee.

The court acknowledged that the plaintiff was reckless in placing himself in front of the defendant’s vehicle and putting his hands on the hood.   However, the court found that the defendant was entirely to blame for the incident

At paragraph 33 the court found that:

[The defendant] was there to be seen, as was the plaintiff. It was not reasonably foreseeable   that [the defendant] would drive into [the plaintiff].

It follows that the plaintiff may not be found contributory negligent applies even if the plaintiff puts his hands on the defendant’s vehicle and even if the defendant acts in a matter that indicates that she will accelerate.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Carr v. Anderson, [2000] O.J. No. 2515 (Sup. Ct. of J.)

Carr is an example of a pedestrian-motor vehicle collision where the defendant driver hit the plaintiff pedestrian in attempting to escape from a dangerous situation created by the pedestrian.  Carr stands for the proposition that even in extreme circumstances the defendant driver owes the plaintiff pedestrian a duty to avoid a collision.

In Carr, the plaintiff was operating his vehicle directly in front of the defendant’s vehicle.  Suddenly, the plaintiff stopped his vehicle and got out.[1]  The plaintiff approached the defendant’s vehicle with a six-inch combat knife.  The plaintiff punctured the front left wheel of the defendant’s vehicle and proceeded (knife-in-hand) towards the defendant’s driver door. The defendant escaped the situation by sharply accelerating around the plaintiff’s parked vehicle and away from the plaintiff.   In the process of driving around the plaintiff’s vehicle, the defendant’s vehicle made contact with the plaintiff, causing a severe tibia-fibula fracture.

At paragraph 22, the court found that the defendant had not discharged the onus to prove that the plaintiff’s damages were sustained without any negligence on the defendant’s part.

The court accepted that the plaintiff’s conduct put the defendant in a justifiably perceived situation of emergency.   However, the court concluded that the defendant did not need to accelerate sharply from a stopped position and a lower rate of speed would have permitted the plaintiff to avoid contact.

The court found the defendant negligent and the plaintiff contributory negligent.   In accordance with Section 4 of the Negligence Act the court apportioned the liability 50/50.

[1] In court, the plaintiff claimed that he had been rear-ended by the defendant.  However, the judge did not accept this evidence.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Chorney v. Colwill (1986), 19 C.P.C. (2d) 195 (Ont. H.C.J.) [Chorney]

Chorney is an example where the court granted the moving party a second Examination for Discovery (ED).  Chorney  was a Family Law Reform Act action by the widow of a man who died in an MVA. The Defendant conducted an ED of the widow.  Following the ED, the Defendant received the results of the deceased Plaintiff’s autopsy report.  The report indicated that the deceased had alcohol in his blood at the time of the MVA.   The plaintiff knew of the autopsy result at the time of the first ED. The Defendants applied to re-examine the plaintiff but the application was refused. The defendants appealed.


Callaghan J. allowed the appeal.  He found that the information was significant to the issues at trial and that the Defendants were entitled to a second ED.  He offered no further elaboration.   Presumably, the evidence of alcohol in the blood of the deceased created a substantial new issue which the Defendant was entitled to address in an ED.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Muslija v. Pilot Insurance Co. (1991), 3 O.R. (3d) 378

In Muslija, the court considered whether a party to a civil proceeding can be entitled to more than one Examination for Discovery (ED) of the opposing party.  Potts J. found that that the Rules contemplate only one ED for each party.  Consequentially, leave for further EDs, can only be granted in unusual circumstances.

The counsel for the Plaintiff discontinued an ED of the Defendant taking the position that counsel for the Defendant was frustrating the discovery process. A master’s decision granted the Plaintiff leave for a second ED.  The Defendant appealed the decision.  The court allowed the appeal.

In denying the plaintiff an opportunity to conduct a second ED, Potts J. reviewed the principles pertaining to EDs in general and the circumstances under which a second ED ought to be granted.


i.          Principles which govern EDs

Potts J. found that the general rules of civil procedure are designed to encourage and promote complete disclosure.  He reiterated the rationales for EDs as they were set out by Trainor J. in Ontario Bean Producers’ Marketing Board v. W.G. Thompson & Sons Ltd.  These rationales (Trainor Rationales) were listed as follows

(a)  to enable the examining party to know the case he has to meet;

(b)  to procure admissions to enable one to dispense with formal proof;

(c)  to procure admissions which may destroy an opponent’s case;

(d)  to facilitate settlement, pre-trial procedures and trials;

(e)  to eliminate or narrow issues;

(f)   to avoid surprise at trial . . .

It follows that a motion to conduct a second ED under 31.03(1) has to be couched in one or more of the Trainor Rationales with the greater view to promoting complete disclosure.


ii.         Allowing a second ED:

With respect to allowing leave for a second ED, Potts J. found that:

The proper procedure to be taken is based on the premise that there be only one examination for discovery. The court does have the authority to grant a further examination for discovery under rule 31.03, but leave is not usually granted.  The court will require the applicant to demonstrate al legitimate reason why the court should cause the examining party to undergo a further examination for discovery.

Potts J. did not specify what constitutes a legitimate reason for allowing a second ED.  However, he did offer three examples where a second ED had been allowed by the court.[1]  Chorney infra and April infra are discussed bellow.  The master’s decision of Hill-Clark-Francis Ltd. v. Schneider is not available on Quicklaw.

[1]Chorney v. Colwill (1986), 19 C.P.C. (2d) 195 (Ont. H.C.J.); April Investments Ltd. v. Menat Construction Ltd. (1975), 11 O.R. (2d) 364 (H.C.J.); Hill-Clark-Francis Ltd. v. Schneider, [1947] O.W.N. 520 (Master).


Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Anand v. Belanger (2010), ONSC 2435

Anand is a recent case which addressed the admissibility of statistical evidence to determine a projected retirement age.  The statistical evidence was tendered as two expert reports.  Anand remains a good indicator of whether statistical evidence can be excluded.

In Anand, the plaintiff suffered injuries as a result of an MVA.  In the ensuing action, the plaintiff was seeking damages for future income loss.  She submitted evidence to the effect that she was going to work at least until the age of 65.  The defence tendered two expert reports.  One of the reports was conducted by Mr. Pesando. It employed statistics to examine the retirement pattern of Canadian females and the relationship between disability and age (Pesando evidence).  The Pesando evidence did not specifically address the plaintiff and offered no opinion on her retirement prospects.

The plaintiff took the position that she was the best instrument with which to judge the date of her projected retirement and the statistics were not sufficiently relevant to be admitted.

The trial judge found that the statistics should not be given much weight and that the jury should be instructed accordingly.  However, he also found that the probative value of statistical evidence outweighed its prejudicial effect.  Both reports had been accepted as evidence.


Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.