Personal injury claimant will rely on chronological chart of accidents in opening address to jury
The Ontario Superior Court of Justice has ruled that a plaintiff advancing a personal injury claim could rely on a demonstrative aid in her opening statement to the jury after removing references to “head injury” from the chronological chart.
The subject of this case was an accident that happened in October 2013. An issue between the parties was whether the accident caused brain injury. The plaintiff’s counsel proposed using an aid in the opening address to the jury and introducing it into evidence in the trial.
This aid would be a chronological chart setting a timeline for events in the years of the plaintiff’s education and employment, the date of the subject accident, and the dates of other accidents and falls that the plaintiffs experienced before and after the subject accident.
The defendant opposed the use of the aid in the opening address and argued that the aid should not mention the term “head injury.”
In Maher v. Kiric, 2025 ONSC 1722, the Superior Court of Justice of Ontario concluded that the use of the demonstrative aid in the opening statement would promote trial efficiency and would help the factual trier organize the information received in the trial.
In reaching this conclusion, the court considered the number of the plaintiff’s falls and accidents and the time that passed since the subject accident. The court noted that the aid contained no advocacy or technical evidence that would risk oversimplification.
The court accepted that head injury was not the same as brain injury. However, the court ruled that including the term “head injury” in the aid would potentially be prejudicial. The court noted that the jury might be confused about the aid’s use of that term and about the difference between head injury and brain injury.
The plaintiff proposed to call seven or eight fact witnesses, not expert witnesses, before she herself would testify. The defendant, on the other hand, wanted the plaintiff to testify before anybody else. The court refused to order the plaintiff to testify first since it was reluctant to interfere with her presentation of her case.
However, the court held that it could later revisit this matter on its own motion or at the defendant’s request if its decision on this issue would make the trial inefficient, would prejudice the defendant, or would make it difficult for the defendant to cross-examine the witnesses.
The court noted that the plaintiff’s preference about the order of witnesses was a decision informed by strategy and not a decision required by scheduling or other reasons.
The court cited the ruling in Ismail v. Fleming, 2018 ONSC 5978, which explained the relevant principles or considerations applicable to disputes relating to the order of trial witnesses.
The court ran through these considerations, which were the following. For trials addressing personal injury claims, the court would generally call the plaintiff as the first witness so that they could set the stage for the evidence to follow.
The ruling stressed that a litigant retained the right to submit their case in the way that their counsel believed advisable in the client’s interests. A trial judge should not lightly interfere with that right and should not take the conduct of the litigant’s case in their own hands and out of counsel’s hands.
The ruling added that a trial judge had a general obligation to control the trial proceeding and thus the jurisdiction or discretion to order a plaintiff advancing a personal injury claim to testify at the trial’s outset before treating healthcare practitioners would present their evidence.
Examples of when the trial judge could exercise this discretion were if they believed that:
The ruling noted that a plaintiff in a personal injury action might not be the best person to give the initial background of the case at trial. Examples would be when:
