E. R. Gritzfeld

The appellant suffered a back injury in a motor vehicle accident and claimed damages for loss of earning capacity as a self-employed bakery owner.

The trial judge assessed pecuniary damages based on the after-tax cost of replacement labour and found the appellant did not fail to mitigate her damages by refusing further medical testing, as her doctors recommended conservative treatment.

The Court of Appeal ordered a new trial, criticizing the damages calculation and finding the refusal of testing unreasonable.

The Supreme Court of Canada allowed the appeal and restored the trial judgment, holding that the replacement labour cost was a reasonable method to assess damages in these circumstances and that the appellant's refusal of medical testing was not arbitrary or unreasonable given the medical evidence.

The appellant's first two trials on a charge of criminal negligence causing death ended with hung juries.

The trial judge stayed a third trial on the grounds that it would constitute an abuse of process and a violation of section 7 of the Charter.

The Court of Appeal allowed the Crown's appeal and ordered a new trial.

The Supreme Court of Canada dismissed the appeal, holding that while prosecutorial misconduct is not an essential element of abuse of process, a third trial in these circumstances does not violate the community's sense of fair play and decency.