5.31: Use of transcript and answers to written questions
6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiffs commenced a Claim against Victoria Trail Physiotherapy Ltd (“Victoria Trail”) and the Workers’ Compensation Board (“WCB”) after a physiotherapist at Victoria Trail allegedly worsened the individual Plaintiff’s injury obtained on the job. Both Defendants applied for Summary Dismissal of the Claim against them.

Master Schlosser noted that the Court must rely on expert opinion evidence as to the cause of the Plaintiff’s injury, and such evidence is admissible in Summary Dismissal proceedings pursuant to rule 6.11(1)(a). Master Schlosser also noted that expert evidence should be treated the same way in Summary Dismissal Applications as at Trial: the Court must asses the expert’s qualifications, information, assumptions and opinion. Further, an expert’s Affidavit should also conform to Form 25 in a Summary Dismissal Application. Because the WCB had tendered their expert’s Affidavit which contained “a gap in the evidence”, Master Schlosser held that it was not determinative with respect to causation.

Regarding Victoria Trail’s expert opinion Affidavit, Master Schlosser held that it complied with Form 25. However, the Plaintiffs objected to the assumptions and information contained in the report as the expert had referred to a transcript of Questioning from its own witness. Master Schlosser considered Rule 5.31, and held that the Plaintiffs’ objection could not be sustained. The Affidavit did not use the transcript as evidence, but rather had put the information within the transcript to the expert as a hypothetical fact upon which the expert could provide an opinion. This was found to be an “exemplary rather than an impermissible use of questioning transcripts”.

Master Schlosser noted that Summary Judgment Applicants are required to “have personal direct first-hand evidence” pursuant to Rule 13.18(3). The WCB had not tendered direct evidence from the Plaintiff’s WCB case manager respecting its claim of statutory immunity which created a gap in the evidence making the WCB’s position “less than entirely satisfactory.”

Finally, Master Schlosser reviewed the “six-step process” that Courts follow during Summary Dismissal Applications: (a) “presume that the best evidence from both sides is before the Court”; (b) ask whether negative inferences may be drawn from the evidence; (c) make a finding respecting admissibility of the evidence; (d) determine whether there is conflicting evidence and whether that evidence is self-serving or has been resolved; (e) examine the sufficiency, admissibility and reliability of the evidence; and (f) determine if all of the elements of a Cause of Action or Defence have been proven, or if “critical elements of proof” are missing.

Master Schlosser concluded that the gaps in the evidence made it clear that the best evidence was not before the Court. As such, the Summary Dismissal Applications were dismissed.

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