The Key to a Strong Lawsuit? Evidence, evidence, evidence.

Case Comment – Carleton v. Beaverton Hotel (2009 Ontario Superior Court)

In real estate, the key to success is often described as “location, location, location”.  In personal injury lawsuits, having evidence to support your claims is fundamental in building your lawsuit.

So what happens if a plaintiff seeks damages for a large future income loss (i.e. alleging an inability to earn as much in the future because of the injuries suffered in the accident) but cannot provide evidence showing how and where he made his money before the accident?  What if the plaintiff started working again after the accident, but couldn’t provide particulars as to how he earned money in 2004 and onwards?

This case is an illustration of the procedural difficulties that can arise for personal injury plaintiffs if they do not diligently work to produce evidence in support of their income loss claims.

In this case, the defendant brought a motion to dismiss the plaintiff’s lawsuit altogether, for failing to answer undertakings relating to pre and post-accident income loss documentation; the undertakings sought to identify the types of specific construction jobs the plaintiff performed, both before and after the accident, to earn money.

This accident occurred in 2003 – a stone fell off the top of a building and hit the plaintiff, who was presumably walking by at the time.  The plaintiff at the time of the accident operated two seasonal businesses, being a “fish hut” business and a construction business.  Despite promising to do so at Discoveries, by the time of this motion in 2009, the plaintiff had not provided various particulars for his pre or post-accident income.

After a thorough review, Mr. Justice Lauwers found that a dismissal of the plaintiff’s action was unwarranted, although he did comment that a failure to produce information might significantly harm the plaintiff’s lawsuit in other ways, including negatively affecting the plaintiff’s credibility at the jury Trial.

Gregory Chang

Toronto Insurance Litigation Lawyer