When asked to comment on the top ten cases from the Court of Appeal on liability, damages and jury issues, there was no specific time frame within which the cases had to have been decided. In order to keep the topic manageable, I have tried to remain current with decisions in the last few years. Apart from being appellate decisions on matters of interest to OTLA members, the cases have little in common. In no particular order, they are as follows:
Downer v. Personal Insurance Company (2012), 110 O.R. (3d) 401 (C.A.) involved a claim for accident benefits arising out of an “accident.” The plaintiff had been assaulted by a group of young people while at a gas station. He was counting money to make payment. In getting away, the plaintiff thought he might have run over the foot of one of his assailants. The insurer paid accident benefits for close to two years, but then decided the claim had not arisen out of an accident. The insurer brought a motion for summary judgment seeking a ruling on the issue. The motions judge decided in the plaintiff’s favour, as the incident had taken place at a gas station while the car was in the process of being filled up, an inevitable use of the vehicle.
The Court of Appeal set aside the decision and held that the motions judge applied an incorrect test. Given that the definition of accident requires a “direct” connection to the use of the vehicle, the Court stated the test as follows: “1. Was the use or operation of the vehicle a cause of the injuries? 2. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act or intervening acts that resulted in the injuries that cannot be said to be part of the ‘ordinary course of things?’ In that sense, can it be said that the use or operation of the vehicle was a ‘direct cause’ of the injuries?….Under the modified causation test from Chisholm and Greenlagh, it is not enough to show that an automobile was the location of an injury inflicted by tortfeasors, or that the automobile was somehow involved in the incident giving rise to the injury. Rather, the use or operation of the automobile must have directly caused the injury.” The Court concluded that “the assault on the plaintiff as he sat in his car sorting his money cannot fairly be considered as a normal incident of the risk created by the use or operation of the car.”
The Court, however, went on to hold that the plaintiff’s psychological injuries, which arose out of the possibility he had run over one of the assailants, did directly arise out of the operation of the vehicle and that the action would have to proceed to trial on that issue. The decision is a reminder of the more restrictive language found in the definition of accident in section 2(1) of the Statutory Accident Benefits Schedule, O. Reg. 403/96, as being “an incident in which the use or operation of an automobile directly causes an impairment.”
Everding v. Skrijel (2010), 100 O.R. (3d) 641 (C.A.) considered the important issue of limitation periods, the discoverability rule and the effect of the statutory deductible. The plaintiff was involved in an accident resulting in soft tissue injuries and chronic pain. She was advised by a lawyer that she could not meet the threshold or exceed the statutory deductible unless there was objective evidence of the injury. Some years later, an MRI disclosed bulging discs. A claim was issued. The insurer brought a motion for summary judgment seeking dismissal of the claim on limitation grounds. The motions judge granted the motion and dismissed the action.
The Court of Appeal allowed the appeal, holding that the motions judge failed to consider the effect of the statutory deductible on the running of the limitation period. The Court stated: “Clearly, it is not the policy of the law or the intent of the limitations provisions to require people to commence actions before they know that they have substantial chance to succeed in recovering a judgment for damages. These provisions of the Insurance Act were enacted as part of a scheme that provides compensation with no-fault benefits for injuries that are not considered to be serious or permanent, but allows actions to proceed where the injuries are sufficiently significant that a substantial monetary award is likely to be recovered. Consequently, the test for the discoverability of the existence for such a claim for limitation purposes must be in accordance with this same policy.” The decision appears to have expanded the circumstances in which the discoverability rule can be applied in respect of motor vehicle accident claims.
Kusnierz v. Economical Mutual Insurance Co. (2012), 108 O.R. (3d) 272 (C.A.) was a closely watched decision by insurers and plaintiffs’ counsel involving the interpretation of the catastrophic impairment provisions of the Statutory Accident Benefits Schedule. The interpretive issue related to whether physical and psychological impairments can be combined under section 2(1.1)(f) of the SABS for the purpose of determining whether a claimant is catastrophically impaired. The trial judge held they could not be.
At bottom, the case involved statutory interpretation of the SABS, read in conjunction with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition, referred to therein. The Court looked at the totality of the Guides and held that the combining of physical and psychological impairments was not precluded, and indeed was promoted in other parts of the Guides. The Court stated: “An objective, standardized system of assessment is only useful to the extent it can reflect persons’ actual levels of impairment. To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides…. Finally, allowing combination promotes fairness and the objectives of the statutory scheme. The trial judge acknowledged that interpreting the SABS and the Guides to prevent mental and behavioural impairments from being considered under s. 2(1.1)(f) would leave a gap in the definition of catastrophic impairment. I agree that it seems unfair to deny to persons with combined physical and psychiatric impairments the enhanced benefits that are available to persons with similarly extensive impairments that fall entirely into one category or another.”
Giuliani v. Halton (Municipality), 2011 ONCA 812, involved the interpretation of the Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02. The claim arose out of a car accident on Derry Road in the early morning of April 1, 2003. Weather forecasts had predicted an 80% chance of snow and freezing temperatures. Two centimetres of snow had fallen on Derry Road at the time of the accident. Section 4(1) of the MMS provides that the response time for clearing snow on a Class 2 road is reached when the municipality “becomes aware” there is five centimetres of snow on the road. Section 5(1) provides that the response time for treating an icy Class 2 road is four hours. In this case, the accident occurred three hours after the first snow fall began. The municipality argued that the response times had not been triggered, and the action should therefore have been dismissed. The trial judge had held that representatives of the municipality were negligent in failing to monitor the weather forecast and in failing to schedule an evening patrol. Had this been done, Derry Road would have been properly treated before the accident. The Court of Appeal upheld the trial judge’s decision.
The Court held that the obligation to take action before the triggering depths of snow and ice were reached was not affected by the Minimum Maintenance Standards. The Court stated: “Thus, the minimum standard for clearing snow accumulation did not apply to circumstances when there had been less than five centimetres accumulation. To be clear, s. 4 of the MMS did not say that a municipality need not clear snow if there was less than five centimetres accumulation. The section did not address that circumstance. There was no minimum standard for clearing accumulated snow on a class 2 highway when the accumulated snow was less than five centimetres.” As to the treatment of ice, the Court stated: “Section 5 of the MMS was directed at the situation when the roadway had become icy, not before. The standard’s requirement to deploy resources and treat was triggered by knowledge that the roadway is icy – present tense – not by knowledge that it may or will become icy. The standard did not address a municipality’s response to conditions that had not yet become icy. The standard provided for a timeline for treatment of the icy condition depending on the class of the highway.”
By virtue of the decision, the MMS does not have the effect of absolving municipalities from taking measures to prevent the accumulation of snow and ice. Leave to appeal the decision was refused by the Supreme Court of Canada.
Combined Air Mechanical Services Inc. v. Flesch (2011), 108 O.R. (3d) 1 (C.A.)involved the interpretation of the expanded powers given to judges on motions for summary judgment to weigh evidence, evaluate credibility and draw inferences. The Court consolidated five appeals and convened a five judge panel to provide guidance to the profession on when these expanded powers should be utilized. OTLA’s view was that summary judgment would not generally be appropriate in cases with multiple witnesses and competing expert evidence.
The Court agreed with this, stating: “In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the ‘interest of justice’ requires a trial. In contrast, in document- driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues….The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words and without the assistance of counsel as the judge examines the record in chambers.”
It is expected that the Court of Appeal’s interesting approach to summary judgment will come under review by the Supreme Court of Canada, as the Court granted leave to appeal in respect of two of the five cases. In the meantime, it is fair to say that the full appreciation test does not seem to be well suited to the resolution of most personal injury claims.
Healey v. Lakeridge Health Corp. (2011), 103 O.R. (3d) 401 (C.A.) involved a class action by persons advised they should be tested for tuberculosis as a result of possible exposure from patients at the hospital. The claims were for psychological harm from being told of the possibility of infection. In dismissing the claims, the Court had occasion to consider the meaning of the term “recognizable psychiatric illness” as the threshold for an award of damages. It was admitted the claimants could not show this, but they argued that the threshold had been lowered by the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd.,  2 S.C.R. 114.
The Court undertook an extensive review of the case law and rejected the claimants’ argument, stating: “When the passage the appellants rely on from Mustapha is read in the light of this body of jurisprudence and scholarly writing, I find it impossible to imagine that McLachlin C.J.C. could have intended her brief description of the type of psychological injuries that qualify as being compensable to change a well-established, though at times contested, rule.”
The Court went on to refer to the policy in this area: “As has been repeatedly stated in the case law, there are strong policy reasons for imposing some sort of threshold. It seems to me quite appropriate for the law to decline monetary compensation for the distress and upset caused by the unfortunate but inevitable stresses of life in a civilized society and to decline to open the door to recovery for all manner of psychological insult or injury. Given the frequency with which everyday experiences cause transient distress, the multifactorial causes of psychological upset, and the highly subjective nature of an individual’s reaction to such stresses and strains, such claims involve serious questions of evidentiary rigour. The law quite properly insists upon an objective threshold to screen such claims and to refuse compensation unless the injury is serious and prolonged. Even critics of the current rule tend to agree that it is conceptually sound to limit compensable claims for psychological harm to those that are serious. Indeed, as I have mentioned, the appellants themselves do not dispute the need to impose some threshold.”
B. (M.) v. 2014052 Ontario Ltd. (2012), 109 O.R. (3d) 351 (C.A.) involved a jury award for damages in a claim for sexual assault. The jury awarded $300,000.00 for general damages, the major component of which was for psychological injuries. The defendant argued the plaintiff’s condition resulted from other traumatic events in her life, and the damages should have been reduced accordingly. The Court was thus required to deal with the difficult issues of causation and the crumbling skull principle. As to the latter, the Court stated: “If there is a ‘measurable risk’ that the condition suffered by the plaintiff would have affected the plaintiff in the future regardless of the defendant’s tortious act, the defendant will be liable for the effect of his act on the degenerative process. However, the defendant need not compensate the plaintiff for any debilitating effects of the pre-existing condition that would have occurred in any event.”
The Court held that if there was a sufficient evidentiary basis for doing so, the jury should have been told that, if there was a measurable risk of psychological injury absent the assault, and if there were other tortious causes of the injury, this should be taken into account in an award of damages. The trial judge erred in failing to give these instructions. However, the Court declined to set aside the award as the evidence in support of the defendant’s position was too weak: “Dr. Teplin did not opine that the occurrence of any of the four other incidents caused or contributed to the respondent’s condition – he could only say that they may have. Indeed, none of the experts could offer anything tangible with respect to the risk that the other incidents would have eventually caused the respondent to develop her current psychological conditions.” The Court reached a similar conclusion with respect to the other tortious events relied upon, stating: “To attribute fault to other tortious causes, those causes must be shown on a balance of probabilities to have caused some harm – speculation that they might have is not sufficient.” The trial judge’s failure to properly charge the jury did not occasion a substantial wrong or miscarriage of justice.
Fidler v. Chiavetti (2010), 317 D.L.R. (4th) 385 (Ont. C.A.) involved the review of Family Law Act awards by a jury for loss of care, guidance and companionship to the parents and sister of the deceased. The evidence disclosed strained family relationships, however the jury awarded $200,000.00 to the mother, $50,000.00 to the father and $25,000.00 to the sister. The Court allowed the appeal in respect of the award to the mother, holding that it was outside a reasonable range established by the Court’s earlier decision in To v. Toronto Board of Education (2001), 55 O.R. (3d) 641 (C.A.), where FLA awards of $100,000.00 were made.
Applying this benchmark and taking account of inflation, the Court modified the mother’s award to $125,000.00 (as of the 2005 accident date), but left intact the other awards. While the trial judge had commented on the defendant’s range of damages, she had not set out an upper range in her charge to the jury. The Court held that it would have been better to have done so: “Although the trial judge was correct in instructing the jury that it was up to them to decide the quantum of damages, this may have been a case where it was appropriate to exercise the discretion set out in s. 118 [of the Courts of Justice Act] and provide some guidance as to the upper range of such damages, thus aiding the jury in coming to this decision.”
The decision also contains a helpful review of the permissible limits of opening and closing arguments, in which the Court rejected the defence submission that any such comments by plaintiffs’ counsel had affected the fairness of the trial. The decision was recently applied by the Court of Appeal in Vokes Estate v. Palmer, 2012 ONCA 510, where Family Law Act awards of $90,000.00, $117,000.00 and $135,000.00 made by a jury were upheld.
Abdallah v. Snopek (2008), 89 O.R. (3d) 771 (Div. Ct.), is a decision from the Divisional Court rather than the Court of Appeal, but is an interesting judgment on the permissible limits of opening and closing arguments. Defence counsel mounted an all-out attack on the plaintiff, which included submissions that the plaintiff was an immigrant to Canada, was taking advantage of the social welfare system and would likely use a damage award to set up a business, possibly outside the country. The trial judge had dismissed the defence threshold motion, however the jury assessed the damages at zero. A majority of the Court set aside the award and ordered a new trial, stating: “Given the nature of defence counsel’s address and the opposite conclusion as to credibility reached by the trial judge, there is a real concern that the jury was improperly swayed and that a substantial miscarriage of justice has occurred.”
Defence counsel’s closing address to the jury included the following remarks: “He goes back to the Middle East twice for a total of 20 months and moves his entire family back there. And now he’s here asking for money from my client. Sure he loves Canada. Why not? What’s not to love? We’re all immigrants or our forefathers were immigrants, but Canada wasn’t built that way. It was built by hard working people who don’t drop out of the workforce for five years because of a fender bender. Canada wasn’t built by people who try to take advantage of a car accident to write their ticket.”
In setting aside the award, the majority undertook an extensive review of the governing principles, stating: “There is nothing wrong with counsel being passionate in support of his client. However, jury addresses that are designed to influence jurors towards making decisions based on their emotional reactions to irrelevant issues, rather than on a rational and logical analysis of the evidence, are improper….By drawing a distinction between the kind of immigrants who built this country and the kind of immigrants who take advantage of a car accident to ‘write their ticket’, defence counsel was playing on a negative stereotype of the immigrant as a leech on our system and seeking to have the jury place the plaintiff within that stereotype. That is the very essence of an inflammatory and improper jury address. Mr. Abdallah’s immigrant status was wholly irrelevant to any issue the jury had to decide.”
Legroulx v. Pitre (2010), 78 C.P.C. (6th) 219 (Ont. C.A.) involved a constitutional challenge to the common law rule permitting a trial judge to strike out a jury on grounds of complexity. The insurer sought to argue that the discretion to strike out a jury violated the Charter rights of jury members and deprived defendants of a jury of their peers based on vague principles and gut reactions. The Court rejected these arguments and held that no Charter issue was engaged as a result of the common law rule, stating: “The class of civil defendants who are denied a jury trial does not form a group or share characteristics that can be identified by one of the enumerated grounds of discrimination or by any conceivable analogous ground… Moreover, we do not agree that a rule that prefers a judge over a lay jury in complex cases demeans or stereotypes the jurors who are excluded within the meaning of Charter jurisprudence. The trial judge cannot strike a jury on a whim or on inadequate grounds. The trial judge is expected to give a reasoned explanation regarding why the case should not continue before a jury, and that decision is subject to review on appeal. Quite apart from the issue of whether the appellants have standing to raise the issue of the jury’s equality rights, we see no merit in the submission that those rights were violated. In the end, the appellants challenge the wisdom of retaining the long-standing rule permitting a trial judge to discharge a jury on grounds of complexity. That is simply not an issue to be determined on the basis of the Charter as no breach of Charter rights is engaged.” The Court’s brief reasons on these issues should be read with the comprehensive decision of the motions judge found at (2008), 55 C.P.C. (6th) 245 (Ont. S.C.J.).
It can be seen that, other than the subject matters of interest to personal injury lawyers, these decisions have very little in common. However, it seems to me that the thoughtful reasons of the Court of Appeal and Divisional Court in adjudicating on these complex matters can make Ontarians justifiably proud of the extraordinarily high quality of our judicial system.