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CIVIL PROCEDURE - Jury trials - Charge to jury

Friday, June 25, 2021 @ 8:20 AM  

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Appeal by the defendant from a jury award for past and future loss of income due to injuries suffered by the respondent in a motor vehicle accident. The respondent claimed he sustained a head injury which left him with a permanent serious impairment of certain cognitive functions. At the time of the accident, he was registered in a pre-university program and wanted to become a teacher. After the accident, he struggled academically and reported difficulty retaining information. He dropped out of the program and never completed it. He sought damages for past and future income loss on the basis that his earning potential was limited by his failure to complete post-secondary education, a failure the respondent claimed was caused by the accident. The appellant’s theory was that, based on the respondent’s poor academic and attendance record in primary and secondary school prior to the accident, he would not have completed his post-secondary studies and his career prospects would have been no better if the accident had not occurred. A neurologist called by the appellant expressed the opinion that the respondent had not suffered a permanent serious impairment from a head injury sustained in the accident and believed that the respondent was unconscious for only a few minutes. The appellant argued the trial judge erred in instructing the jury with respect to the causation test they were to apply, by unfairly curtailing cross-examination of  Greenwald, the economic loss expert called by the respondent, on questions arising from the Statistics Canada Report and denying the request by appellant’s trial counsel to have the Statistics Canada Report, on which he had questioned Greenwald, filed as an exhibit, and in refusing to allow appellant’s trial counsel to direct the neurologist to specific parts of her expert report during re-examination.

HELD: Appeal dismissed. The but for test applied here. While the trial judge used the language of material contribution in directing the jury on the issue of causation, at the end of the charge the jury would have properly understood the law it was to apply. Each of the directions to the jury relating to past income loss required the jury to find the but for test to be satisfied. The trial judge directed the jury that their task relating to future income loss was to assess the difference, if any, between the respondent’s potential earning capacity if he had not suffered the injury and his actual earnings capacity. To comply with this direction, the jury had to apply the but for test. The trial judge did not unfairly curtail the cross-examination of Greenwald on questions arising from the Statistics Canada Report and did not err by denying the appellant’s request to admit that Report into evidence as an exhibit. The trial judge did nothing to curtail the cross-examination but prohibited appellant’s trial counsel’s attempt to have the Report entered into evidence as an exhibit. The trial judge was correct in excluding the Report on the basis that the witness had not relied on it. Although she expressed agreement with specific propositions put to her from the Report, at no time did she affirm the general accuracy of the Report or recognize the Report itself to be authoritative. Given that the neurologist indicated she could not recall, without examining her report, what information she had relied on relating to the respondent’s loss of consciousness, the trial judge was entitled to permit her to consult her report to refresh her memory. The trial judge was not required to permit counsel to direct the witness to a relevant location in her report. The income the respondent would have earned between the accident and trial but for his injury was hypothetical. The trial judge was therefore correct to instruct the jury that they were to award the respondent compensation under this head of damages if there was a real and substantial risk or possibility that he suffered a loss of past income because of the injuries sustained or that he would have finished school and earned more than he did up to the date of trial, had he not been injured in the accident.

West v. Knowles, [2021] O.J. No. 2487, Ontario Court of Appeal, K.N. Feldman, D. Paciocco and S.A. Coroza JJ.A., May 7, 2021. Digest No. TLD-June212021009