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PRACTICE AND PROCEDURE - Evidence - Admissibility - Verdict unreasonable

Thursday, September 19, 2019 @ 6:23 AM  


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Appeal by the defendant from jury’s award in the plaintiff’s favour in her action for damages for injuries sustained in a motor vehicle accident. The appellant made a left hand turn into oncoming traffic and collided with the plaintiff’s vehicle. The jury assessed liability for negligence at 90 per cent for the appellant and fixed damages at $700,000. The jury found the respondent’s PTSD was caused by the collision and was not the result of an earlier sexual assault. The trial judge refused to admit surveillance evidence and Facebook posts by the respondent that the defence submitted established the respondent’s activities of daily living were not as impacted by PTSD as she led the jury to believe. The Facebook posts were not provided to the appellant’s counsel prior to trial.

HELD: Appeal dismissed. The trial judge erred in concluding the surveillance evidence could only be shown to the jury if it contradicted the plaintiff. She erred in not assessing whether the late surveillance evidence should be admitted considering fairness and surprise. None of the trial judge’s substantive or process reasons for excluding the surveillance evidence held up under scrutiny. The surveillance videos were admissible, and the trial judge erred in excluding them. However, even if the excluded surveillance evidence had been admitted, it was not so significant that the evidence would have affected the jury’s damages verdict. The trial judge’s discretionary ruling on the Facebook posts was reasonable.

Nemchin v. Green, [2019] O.J. No. 4004, Ontario Court of Appeal, P.S. Rouleau, P.D. Lauwers and K.M. van Rensburg JJ.A., July 31, 2019. Digest No. TLD-September162019010