) ) EVELYN KEWAYOSH, personally v. as, 2013 ONSC 7136

CITATION : Kewayosh v. Lacroix, 2013 ONSC 7136 DIVISIONAL COURT FILE NO.: 481/13 DATE: 20131118 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ. BETWEEN: ) ) EVELYN KEWAYOSH, personally and as Litigation Guardian for KI WILLIAM LALIEU KEWAYOSH, JESSE MOOKISHIG KEWAYOSH and LIBERTY GRACE KEWAYOSH, WILCY LEE KEWAYOSH Plaintiffs (Respondents) – and – DR. THOMAS B. LACROIX, DR. G. W. BARWITZKI, BLUEWATER HEALTH, CATHY BUTLER, DOROTHY GLEASON, SONJA MACKIE, PATRICIA DERIDDER, JANE DOE and DR. M.A. MENDOZA and DR. A. W. N.

CANNING Defendants (Appellants) )) )) )) )) ))))))))))))) Joni Dobson , for the Plaintiffs (Respondents) John A. Nicholson , for the Defendants, Drs. Lacroix, Barwitzki, Canning and Mendoza ) ) HEARD at Toronto: November 19, 2013 A.C.J.S.C. MARROCCO [ 1 ] The appeal is allowed. [ 2 ] Subject to any claims of privilege, production is ordered. Morissette J., at paras. 4 and 9 of her reasons stated that Jesse Kewayosh had cerebral palsy and accordingly, could not be a proper comparator. This conclusion apparently resulted in part from statements made during argument of the motion before Her Honour.

It was for this reason that Morissette J. appeared to reject the defence expert’s conclusions. Today, counsel for both sides clarified that there is no conclusive diagnosis that Jesse Kewayosh has cerebral palsy.

Irrespective of the standard of review, in these particular circumstances, Her Honour’s decision cannot stand. [ 3 ] We do not read Her Honour’s decision as a conclusion concerning the merits of the defence because that issue was not before Her Honour and Her Honour allowed production of certain information concerning Jesse Kewayosh. [ 4 ] Finally, we point out that the trial judge has the discretion to exclude evidence whose prejudicial effect before the jury outweighs its probative value. COSTS

[ 5 ] Costs are reserved to the trial judge because the degree of relevance of the documents that are the subject of this motion is unclear at this point in this matter. A.C.J.S.C. MARROCCO BALTMAN J. MCEWEN J. Date of Reasons for Judgment: November 18, 2013 Date of Release: November 26, 2013 CITATION : Kewayosh v. Lacroix, 2013 ONSC 7136 DIVISIONAL COURT FILE NO.: 481/13 DATE: 20131118 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT A.C.J.S.C. MARROCCO, BALTMAN AND MCEWEN JJ.

BETWEEN: EVELYN KEWAYOSH, personally and as Litigation Guardian for KI WILLIAM LALIEU KEWAYOSH, JESSE MOOKISHIG KEWAYOSH and LIBERTY GRACE KEWAYOSH, WILCY LEE KEWAYOSH Plaintiffs (Respondents) – and – DR. THOMAS B. LACROIX, DR. G. W. BARWITZKI, BLUEWATER HEALTH, CATHY BUTLER, DOROTHY GLEASON, SONJA MACKIE, PATRICIA DERIDDER, JANE DOE and DR. M.A. MENDOZA and DR. A. W. N. CANNING Defendants (Appellants) ORAL REASONS FOR JUDGMENT A.C.J.S.C. MARROCCO Date of Reasons for Judgment: November 18, 2013

Date of Release: November 26, 2013