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CIVIL PROCEDURE - Trials - Conduct of - Judge’s powers and duties 

Thursday, June 04, 2020 @ 9:35 AM  


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Appeal by the plaintiff from a trial judgment dismissing her claim for general damages and reducing her damages award for loss of income to zero to account for statutory accident benefits received by the appellant from her insurer. The appellant sued for personal injuries suffered in a motor vehicle accident. The jury found the respondent to be fully liable for the accident and awarded the appellant $45,000 in general damages and $30,000 in special damages for past loss of income. The appellant was self-represented at trial. She used a Spanish interpreter throughout. She was faced with two experienced counsel, two representing the respondent and two representing the insurer. The trial was 20 days long, involved many witnesses and considered complex medical evidence. The defence’s position was that this was a minor motor vehicle accident not causally related to the appellant’s physical, emotional, psychiatric or mental problems. The defence argued the statutory accident benefit settlement provided the appellant with more money than she would have earned as a cleaner, and that accounted for her failure to get new employment and for her approach to this action. The defence claimed she was a malingerer. The defence’s strategy was to keep expert evidence favourable to the appellant from the jury and from the trial record. The statutory accident benefits settlement was portrayed by the defence as an undeserved windfall. On the eve of trial, the defence dropped a massive and selectively redacted 16-volume Joint Trial Brief on the appellant. The Brief became the basis of the trial record but was prepared by the defence without input from the appellant. After the case went to the jury, the defence moved to dismiss the action on the basis that the appellant had not met the statutory threshold to qualify for general damages.

HELD: Appeal allowed. New trial ordered. The appellant had shown that a miscarriage of justice occurred. There was no good explanation for the late delivery of the Trial Brief which put the appellant at a disadvantage throughout the trial. It was an error not to allow the medical expert who supported the appellant’s account of her injury to testify about the substance of his report and to exclude his report from the record. Allowing the defence experts to testify and offer opinions contrary to the appellant’s medical evidence presented a skewed picture to the jury and was grossly unfair to the appellant. Section 35 of the Evidence Act was not the proper way to get medical opinion evidence in for the truth of its contents, which was what the defence did. This error of law was procedurally and substantively unfair to the appellant. The flaws in the management of the trial record were not fatal to trial fairness in this case, but they unfairly enabled the defence’s strategy of keeping expert evidence favourable to the appellant from the jury and from the trial record. Evidence about the appellant’s accident benefits settlement was not properly admitted. The trial judge erred in only giving the standard instruction to the jury in this case. The prejudice of introducing evidence of a statutory accident benefits settlement must be carefully balanced against its probative value. Given the pleadings and the material facts at issue, there was minimal, if any, probative value in the cross-examination of the appellant on the benefits settlement. It was highly prejudicial to her, having the perverse effect identified of using collateral entitlements premised on disability to support arguments of ability. The defence advanced evidentiary positions that were problematic on legally complex topics. In advancing those positions, the defence ought to have assisted the trial judge, as officers of the court, with the legal issues embedded in the positions. The appellant needed the active assistance of the trial judge to deal with those positions. It was open to the trial judge faced with a legally contentious issue to require counsel to assist. The trial judge should have reconsidered his decision not to strike the jury as the trial unfolded and difficulties in trying this case fairly mounted through the long days of the trial. Because of the basic unfairness that permeated the trial, the ruling on the threshold motion was set aside.

Girao v. Cunningham, [2020] O.J. No. 1729, Ontario Court of Appeal, P.D. Lauwers, J.M. Fairburn and B. Zarnett JJ.A., April 21, 2020. Digest No. TLD-June12020008