Superior Court warns counsel to meet electronic filing requirements in motor vehicle accident case

In a case arising from an automobile accident, the Ontario Superior Court warned counsel in this trial and beyond that it would no longer tolerate a continued failure to meet the electronic filing requirements under the relevant practice directions and good advocacy principles. 

In Okafor et al. v. Wilson, 2026 ONSC 716, the plaintiff’s action arose from accidents in 2013 and 2018. The April 2018 motor vehicle accident was at issue in this lawsuit. 

The plaintiff advanced claims for non-pecuniary general damages and healthcare expenses. Before the jury trial began, the defendant moved to strike the plaintiff’s claims. 

The defendant alleged that the plaintiff failed to produce the evidence required in ss. 4.3(1)–(5) of Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O Reg 461/96. 

Evidence deemed deficient

After digressing from the defendant’s motion so that it could address counsel’s deficient filings, the Ontario Superior Court of Justice granted the motion and denied the plaintiff’s claims for non-pecuniary general damages and healthcare expenses. 

The plaintiff argued that the totality of the medical evidence met his evidentiary onus, addressed the requirements of s. 4.3(2), and gave the opinion required in ss. 4.3(4) and (5) that he sustained an impairment directly or indirectly caused by the use or operation of an automobile. 

The court rejected this argument as an unreasonable reading of s. 4.3. According to the court, under a reasonable reading of the regulation, the plaintiff should submit evidence from one or more physicians who were experts qualified under s. 4.3(3) to: 

• Give an opinion within their specialty as to the specific items listed in s 4.3(2) 
• Offer an opinion under ss. 4.3 (4) and (5) on whether the plaintiff sustained a permanent and serious impairment of an important physical, mental, or psychological function due to an automobile accident 

The court decided that the following medical evidence did not comply with the s. 4.3 requirements: 

• In a September 2018 consultation report, a doctor commented on the plaintiff’s claim of dizziness and pain due to the accidents. The doctor issued no diagnosis regarding causation or the impairment’s seriousness, permanence, or importance. 
• In an August 2020 letter, an orthopaedic surgeon provided a pre-operative history before a knee replacement procedure. The surgeon explained the risks. 
• In a clinical note, the plaintiff’s family doctor addressed the plaintiff’s knee surgery due to the 2018 accident. 
• In a clinical note, an orthopaedic surgeon reported on the plaintiff’s knee replacement. 
• Documents from an orthodontist pertained to the plaintiff’s tooth loss and replacement implant. 
• In a November 2022 report, a neuropsychologist had to opine on the plaintiff’s neuropsychological impairment for the purposes of a categorization as “catastrophic” under the relevant regime. The doctor diagnosed the plaintiff with a mild traumatic brain injury due to the 2018 accident, superimposed on preexisting limitations. The doctor considered the total impairment catastrophic for first-party benefits purposes. The doctor did not comment on the impairment’s seriousness, permanence, or effects, apart from addressing the impact on the plaintiff’s travel ability and his need for transportation services. 
• In an August 2023 report, an orthopaedic surgeon discussed the broken bones in the plaintiff’s left foot due to a recent fall down the stairs, which was an irrelevant injury. 
• In an October 2018 note, a registered nurse at a diabetic clinic addressed another irrelevant matter. 

The court rejected the plaintiff’s argument that it could accept what he said about his injuries in deciding whether he met the s. 4.3 requirements. The court explained that this did not amount to a qualified medical opinion. 

Lastly, the court held that the prohibition against pursuing claims for non-pecuniary general damages that did not meet the s. 4.3 requirements would encompass damages claims for housekeeping the plaintiff left undone due to the injury, as well as housekeeping he finished, but with more pain and less efficiency. 

The court pointed out that these claims were part of the general damages.