COURT OF APPEAL FOR ONTARIO
LASKIN, LANG and JURIANSZ JJ.A.
BETWEEN:
ANDREA LAZARE, JEFF LAZARE, SANDRA LAZARE and MATTHEW LAZARE
Plaintiffs (Appellants)
and
DANICA LOUISE HARVEY and BRIAN ARTHUR BAILEY
Defendants (Respondents)
Jeffrey Wm. Strype for the appellants
Donald G. Martin, Q.C. for the respondents
Heard: November 2, 2007
On appeal from the judgment of Justice Harriet E. Sachs of the Superior Court of Justice dated September 6, 2006.
LANG J.A.:
Overview
1The appellant, Andrea Lazare, appeals from the judgment of Sachs J. following an thirteen-day jury trial. The respondents, Danica Harvey and Brian Bailey, were respectively the owner and operator of the motor vehicle that struck the appellant, who was a pedestrian. They admitted liability.
2The jury assessed the appellant’s non-pecuniary damages at $290,000, loss of past income at $30,000, loss of future income at zero and damages under the Family Law Act, R.S.O. 1990, c. F.3 in the total amount of $43,300.
3The only issue on appeal is the jury’s decision to award zero in damages to the appellant for loss of future income. The respondent did not cross-appeal the jury’s non-pecuniary damages award and neither party appealed the award for loss of past income or for Family Law Act damages.
4The appellant does not challenge the instructions given by the trial judge, which all agree were both thorough and careful. The appellant only argues that the verdict with respect to damages for loss of earning capacity or loss of future income is so unreasonable and unjust that no jury, considering the evidence as a whole and acting judicially, could have reached it. The respondent argues that the appellant has not discharged the burden of establishing an unreasonable verdict because there was evidence that the appellant’s future income was not affected by her injury and because the appellant’s expert opinion, that may have otherwise supported a loss of future income, was successfully challenged on cross-examination.
5For the reasons that follow, I agree with the position advanced by the respondent. As a result, in my view this appeal must be dismissed.
Evidence at trial
6In brief, the appellant, then twenty-one years of age, was hit by a car during the first week of her fourth year of university. The appellant suffered extensive injuries, some of which were significant. The most significant was the injury to the appellant’s lower left leg. It led to a condition called lymphedema, or non-pitting edema, which means that the lymphatic system in the appellant’s lower left leg is compromised, causing fluid build-up or swelling that causes pain. The condition is permanent.
7Although the appellant’s medical expert, Dr. Tepperman, did not provide testimony respecting the degree of the respective risks, he did provide testimony about a range of possible complications associated with lymphedema, including infection, nerve damage, skin breakdown, elephantitis and even the development of tumours. However, Dr. Tepperman also testified that lymphedema can “hopefully be controlled” and most complications avoided with adequate care, such as that undertaken by the appellant. The appellant’s proper care of her leg is critical. The appellant treats her condition by putting a Lympha Press on her leg for six to ten hours a night, which forces fluid from her lower leg. At other times, she wears either a Reid Sleeve or a pressure gradient stocking to control swelling in her leg. Once or twice a week, the appellant visits a therapist who manually drains fluid from her leg.
8It is clear that lymphedema altered the appellant’s life in many ways. Swelling in her lower leg causes pain, which affects her energy level. The appellant is no longer able to participate in aggressive or competitive sports. Prolonged walking or standing may cause swelling, travelling will require precautions including the need for equipment to care for her leg, and a pregnancy will carry the risk of thrombosis.
9The appellant lost a year of studies while recovering from her injuries so that her final year of university was delayed by one year. At the time of trial she was employed with Rogers Communications working for the Toronto Blue Jays. The appellant was happy in her employment and pleased to be working in the sports industry, in which she had always had an interest. At the time of trial, she had recently received her second promotion. She earned about $28,000 annually, based on her hourly wage of $14.00 and her $3,000 bonus. The appellant also testified that she earned further overtime income.
10The appellant’s primary argument at trial in support of her claim for a loss of future income was that, but for the accident, she would have applied for and been accepted at law school. However, the evidence at trial supported a finding that the appellant would not have gained admission to law school. Accordingly, the appellant did not pursue this argument on appeal. The appellant’s alternative argument, and this is the focus on appeal, was that her condition compromised her competitive position in the workplace.
11Medical reports from the appellant’s treating physicians were filed as evidence at trial. The appellant also called Dr. Tepperman, an expert in rehabilitation medicine, who based his opinion on a seventy-five minute interview with the appellant, a review of the appellant’s written medical records, an admittedly limited experience with upper extremity lymphedema in mastectomy patients, and his research of medical literature on the topic of lymphedema. In the course of his interview, Dr. Tepperman’s examination of the appellant demonstrated normal strength, reflexes and range of motion in her left leg. However, he noted that the appellant experiences numbness, tingling, stiffness and a heavy sensation in her lower limb. He reported: “If the lymphedema worsens as she ages and/or if Ms. Lazare suffers significant complications, she may require a more protracted period of absence from work.” At trial, Dr. Tepperman acknowledged that this meant that “if it gets worse she may have to be off some more time from work”. He also told the jury that while the condition can be controlled, it often is not. Even though it was not in his report, Dr. Tepperman testified near the end of his examination-in-chief at trial that “probably within 10 years she will probably not be capable of working”. Ten years from the time of trial, the appellant would be thirty-seven years of age.
12Dr. Kumove, the appellant’s vocational assessment expert, based his opinion about the appellant’s potential loss of future income on medical reports, including information that the appellant had already missed time from work as a result of her condition, that her condition was likely to progress and his research that, statistically, a person with a disability generally suffers from a loss of competitive advantage in his or her career.
13While the evidence about time missed from work was given by the appellant, who testified that pain regularly caused her to leave work early or to miss work altogether, the appellant’s concerns about the negative impact of her condition on her competitive advantage (which formed the basis of Dr. Tepperman’s opinion) had to be weighed in light of the evidence given by the appellant and her supervisor, Ms. Spotton. Both the appellant and Ms. Spotton told the jury that the appellant had been promoted on two occasions since she first joined the organization a year and a half earlier. Moreover, Ms. Spotton testified that the appellant could expect a further promotion to the position of manager within a further eighteen months to two years, if she maintained her current level of performance. This evidence was consistent with the evidence of the appellant about her early promotions and belied her claim for loss of competitive advantage.
14As a manager, the appellant could earn $50,000 to $70,000, inclusive of commissions and bonuses. After that, the appellant could become a director earning a salary, commissions and bonuses of $120,000 and then a vice president, earning about $150,000 plus bonuses and commissions. Ms. Spotton testified that the job of director was “for [the appellant] to lose”, and that the appellant had been identified as a “top performer” with the Blue Jays.
15Ms. Spotton also emphasized throughout her testimony that the appellant always showed up for work. Although the appellant is in a job that involves standing and even some significant walking, she never complains. Indeed, Ms. Lazare’s job performance is so unaffected by her leg injury that Ms. Spotton observed at trial:
She never complains about stuff, so I really, quite frankly, didn’t really know anything was wrong with her until I saw her travelling with a bag when we flew of on an incentive trip, and in fact I did find out that she had been hit by a car or by a truck, and so I understand that, you know. There are some significant problems with her leg, but again, you know, she never complains about it.
16In addition, Ms. Spotton testified that the appellant was focussed on her work and demonstrated strength of character, a positive attitude, a high willingness to learn, a focussed work ethic and would be good at anything she did. The vice president in charge of their division, who also had commented favourably about the quality of the appellant’s work, specifically selected the appellant for promotion, as the appellant acknowledged in her own testimony. Finally, Ms. Spotton testified that the challenges faced by the appellant because of her injury were “not inhibiting her success”. The appellant called no evidence from other Rogers’ staff to contradict the unqualified evidence of Ms. Spotton.
Submissions and jury charge
17On the basis of this evidence, in addition to a claim for non-pecuniary damages fixed at the upper limit (which was then $315,000), the appellant sought $80,000 to $100,000 in loss of past income and $563,850 to $2.8 million in loss of future income. The respondent took the position that non-pecuniary damages should be assessed at $100,000, $30,000 for loss of past income and zero for loss of future income. The trial judge suggested a range of $175,000 to $200,000 for non-pecuniary damages and carefully surveyed the evidence regarding the appellant’s loss of income claims.
18In her charge regarding loss of future income, the trial judge explained correctly and repeatedly that the appellant need only establish that her loss was a real and substantial possibility. She emphasized that the appellant was not required to establish this loss on a balance of probabilities, which is of course a different and higher standard. In particular, the trial judge gave the following specific instruction:
The onus is not on the plaintiff to prove on the balance of probabilities that her future earning capacity will be lost or diminished. The onus is a lower one. [The appellant] need only satisfy you on the evidence that there is a reasonable and substantial risk of loss of income in the future to be entitled to damages under this heading.
What you have to decide, then, is whether there is a real and substantial risk that [the appellant] will suffer a loss of future income, because of the injuries she sustained in the accident. The higher and/or more substantial the risk of [the appellant] suffering such a loss, then the higher the award she should receive. However, in arriving at your assessment under this heading you should exclude from your consideration any remote, fanciful or speculative possibilities. I repeat again: The burden is on the plaintiff to satisfy you that there is a real and substantial risk that she will suffer a future loss of income by reason of the injuries she sustained in the accident.
Put another way, the plaintiff must satisfy you that there is a real and substantial possibility that she will suffer such a loss.
19The trial judge canvassed the medical evidence about the extent to which the appellant’s condition would affect her income in the future. She explained to the jury that the appellant’s rehabilitation expert, Dr. Tepperman, was not one of the appellant’s treating physicians. She also pointed out that the expert had had no contact with the treating physicians, that he was retained by the appellant’s lawyer for the purposes of the lawsuit, that he had spent a limited time examining the appellant, and that this was the first occasion he had given a medical-legal opinion regarding lymphedema.
20In addition, the trial judge reminded the jury that Dr. Tepperman did not give the opinion that the appellant would be faced with retirement in ten years in his original report. Rather, at that time, he only opined that the appellant would always require sedentary employment, that she would lose time from work periodically, particularly if she suffered complications, that she may require a more protracted absence from work if she suffered more significant complications, and that she could be forced into early retirement.
21The trial judge summarized the positions of the parties’ counsel. The appellant’s counsel argued that the appellant would likely have been forced to retire at age 37. As a result, she would lose about $2.5 million if the jury found she would have practised law and $2.6 million had she successfully pursued her career with the Blue Jays. The respondents’ lawyer argued that the appellant suffered no loss because she would not have gained entry to law school and because it was not a real and substantial possibility that she would be forced into early retirement by her injury.
22At the end of her instructions on this issue, the trial judge again reminded the jury about the lower onus for loss of future income:
Members of the jury, I remind you again that in considering the question of whether [the appellant’s] working life will be cut short because of her injuries, it is not up to the plaintiffs to satisfy you that it is more probable than not that this is so. Their onus is a lower one. You must be satisfied that there is a real and substantial possibility that [the appellant’s] working life will be cut short because of her injuries.
Standard of review
23The “reasonableness” standard of review of a jury verdict was set out in the seminal case of McCannell v. McLean, [1937] S.C.R. 341. In that case, Duff C.J. explained at p. 343 that, “the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.” Duff C.J. emphasized that the appellate court’s authority to set aside a jury verdict should be exercised with caution.
24This test, and the principle that the standard for appellate review of a jury verdict in a civil case is “very high”, have since been applied in numerous decisions of this court. See for example, Ferenczy v. MCI Medical Clinics (2005), 198 O.A.C. 254 at para. 5; Kerr v. Loblaws (2007), 2007 ONCA 371, 224 O.A.C. 56 at para. 4; Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299. Most recently, in Bovingdon v. Hergott, 2008 ONCA 2, Feldman J.A. noted the high standard created by McCannell and commented that, “[c]onsequently, it is relatively rare for a jury verdict in a civil case to be overturned on appeal.”
25In McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161 at para. 60, Iacobucci J. noted that an appellate court will also set aside a civil jury verdict where “there was ‘no evidence’ supporting a particular verdict”. Whether under this test or the McCannell test, he cautions that an appellate court may not “set aside a verdict on ‘mere doubts [it] may entertain’ or on its ‘reaching on the reading of the evidence a conclusion different from that the jury reached’”. Southin J.A. in Johnson v. Laing (2004), 2004 BCCA 364, 242 D.L.R. (4th) 48 at 91 (B.C.C.A.), notes that unreasonable “means lacking in reason.”
26In Olmstead v. Vancouver-Fraser Park District, [1975] 2 S.C.R. 831, in confirming that a jury’s verdict should be treated with considerable respect and accorded great weight, De Grandpré J. noted the historical application of the reasonableness principle at pp. 837-38:
This test of reasonableness has repeatedly been stated by our Court. In 1894, in The Saint John Gas Light Company v. Hatfield1, Gwynne J. said, at p. 169:
…the well established rule of this Court is, that upon such pure matters of fact the court cannot interfere unless it be conclusively established that the findings of the jury are so entirely wrong, and so unwarranted by the evidence, as to justify the conclusion either that the jury did not appreciate their duty or acted wilfully in violation of it.
The strength of the rule is evidenced by the judgment of Sir Louis Davies C.J., in Scotland v. The Canadian Cartridge Company2, p. 477:
I say on this main and controlling issue I would as a juryman probably have found against the plaintiff. But that is not my province. I have only to determine whether in the conflict of evidence we have before us in this case, scientific and practical, we find enough to justify reasonable men in reaching the conclusion these jurymen did.
27In Canadian Cartridge Company, Davies C.J. further noted at p. 477 that this standard was fashioned in part in recognition of the fact that the jury had the advantage of “seeing and hearing the witnesses and of judging how far and to what extent credit should be given to their statements.”
28Recently, in Kerr v. Loblaws, Cronk J.A. dismissed an appeal premised in part on the argument that the civil jury verdict was “unreasonable”. In reaching this determination, Cronk J.A. stated at para. 4: “Finally, because there was evidence to support the jury’s verdict, I cannot say that it was unreasonable.”
29Accordingly, the test of reasonableness in the civil context asks whether the jury’s verdict is so unwarranted by the evidence as to justify the conclusion that the jury did not appreciate and acted in violation of its duty. In those cases where there is some evidence to support the jury’s verdict, high deference will be accorded and the verdict will not be set aside even if another conclusion is available on the evidence. I am guided by these principles in assessing the jury’s verdict in this case.
Analysis
30In arguing that the verdict is unreasonable, the appellant relies on M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477 at para. 47, for the unchallenged principle that “an award for loss of earning capacity is intended to compensate for the loss of an asset, the capacity to earn.” [Emphasis in original.] The appellant also relies on Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.), where the court listed relevant considerations in assessing a claim for loss of future income, including the following:
a) Whether the plaintiff has been rendered less capable overall from earning income from all types of employment;
b) Whether the plaintiff is less marketable or attractive as an employee to potential employers;
c) Whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and
d) Whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market.
31However, the particular evidence at this trial was capable of supporting the jury’s finding that the appellant’s injury - no matter how serious for other aspects of her life - did not affect, and had no real and substantial possibility of affecting, her level of performance at work and, therefore, did not render her less capable, marketable or valuable in the workforce. While another jury may have come to a different verdict, as noted above, that is not the standard of review.
32In my view, the appellant simply has not met the high standard required to show that no jury could have reached the conclusion that the appellant did not face a real and substantial possibility of a loss of future income either by reason of a loss of competitive advantage or by reason of forced early retirement. I say this for several reasons.
33First, on the appellant’s own evidence, she had the achieved success in her job. By the time of trial, Rogers had promoted her twice. The appellant testified that the next step would bring her to the level of a manager earning $50,000 annually, with the potential for additional income of $20,000 by way of commission or bonus.
34She testified that her vice president had specifically selected her for her latest promotion. He was aware of her difficulties with her leg and had enquired whether she could handle a new position, which required longer days, more intense hours, and occasional seven-day work weeks. The appellant told her vice president that she was prepared to try it and in fact continued in her new position at the time of trial.
35Second, Ms. Spotton, who was the appellant’s own witness, testified that the appellant did not complain about her leg, even though her job involves standing and walking. She performed her employment without complaint or apparent difficulty and had very positive prospects for ongoing promotion. The appellant called no evidence from other Rogers’ staff to contradict the unqualified evidence of Ms. Spotton. The evidence clearly supported a conclusion that the appellant suffered no loss of competitive advantage.
36Third, the appellant’s treating physicians did not testify. Medical reports were filed at trial regarding the impact of the appellant’s condition. Dr. Nasser, a general and vascular surgeon who saw the appellant on only one occasion, reported that the appellant’s lymphedema would progressively worsen “depending on her choice of profession, number of her pregnancies, and whether she gets infection or injury to the left lower extremity.” Dr. Nasser indicated that the appellant would have to take precautions while travelling, elevate her legs on a daily basis, wear support stockings, avoid injury or infection, and remain active using her calf muscles to pump the fluid in her legs. He stressed the importance of regular walking exercises. Dr. Nasser opined that the appellant’s condition would be “a factor if she wants to do aggressive or competitive sports and it will definitely change her options with the kind of activities/sports and their respective intensity”. This report contains nothing to support Dr. Tepperman’s opinion about the appellant’s ability to earn future income. Furthermore, Dr. Nasser’s report was from 2002. No updated report was filed at trial.
37Dr. Ogilvie-Harris, an orthopaedic surgeon provided reports. According to his July 2003 report, the appellant complained of ongoing pain and tingling in her left leg and ankle. At the time, the appellant was working for Parks and Recreation doing physical work on the grass crew. The appellant reported that tennis aggravated her symptoms, but she was able to go to the gym five days a week. Dr. Ogilvie-Harris noted that the appellant had to protect her leg. He recommended sedentary employment in the future and, apparently for this reason, gave his opinion that the appellant’s competitiveness in the labour market would be limited in the long term.
38Dr. Ogilvie-Harris again reported in March 2004. At that time, he noted that the appellant “was working in an office in a sedentary capacity” and that “she is able to carry out this job”. While Dr. Ogilvie-Harris observed that recent swelling in the appellant’s leg required treatment, he only spoke about the condition as limiting the appellant’s physical activities and heavy housework responsibilities. As far as her employment was concerned, he only repeated his comment that she will need sedentary or light work. In addition, he observed that if she became pregnant she might have more swelling and “may require time off work to try and control” that swelling. He made no further mention of possible loss of competitive advantage or forced early retirement. Although there is a reference to a November 2004 report, this was not included in the appeal book and I assume that it contained no contrary information.
39Dr. Pilowsky, a psychologist, provided reports in February and August 2002. He noted that the appellant suffered psychologically from the accident and her subsequent inability to return to school the next year. Dr. Pilowsky expressed no opinion relevant to the appellant’s future abilities in the workplace relating to her lymphedema. The emphasis of his report appeared to be on the appellant’s ability to do well on her return to university because he was concerned about cognitive impairment but, by the time of trial, the appellant had in fact successfully completed her university degree and obtained employment.
40Accordingly, these medical reports, all of which were dated, and which the jury had with it during deliberations, provided little foundation for Dr. Tepperman’s opinion about the appellant’s future employment prospects.
41Dr. Tepperman’s opinion was also substantially challenged on cross-examination. Dr. Tepperman, a physiatrist and rehabilitation expert, acknowledged that he had only limited exposure to lower-limb lymphedema and lymphedema acquired as a result of trauma. Much of his knowledge about the appellant’s prognosis was based on his review of medical literature. He acknowledged that he was retained by the appellant for litigation purposes only and did not contact her treating doctors nor offer any treatment for the appellant. He also acknowledged that he only saw the appellant on one occasion when he confirmed the appellant’s numbness and tingling, but also reported normal strength, reflexes, pulse and range of motion in her leg. He recorded the appellant’s report of increased swelling in 2004 and gave his opinion that swelling could lead to nerve compression, increased pain and resulting fatigue. He expressed concern about an increased risk of thrombosis during pregnancy. Dr. Tepperman did not give an opinion about the incidence of the possible complications of lymphedema, except to say regarding lymphangiosarcoma that he had little experience with such disorders personally. Most importantly, in his report, Dr. Tepperman noted that “the lymphedema does not represent a contraindication to sedentary, to light work that does not necessitate prolonged standing or walking”.
42Finally, as I noted earlier, although Dr. Tepperman testified that the appellant could work in sedentary employment, he also testified that she probably would not be able to work in ten years time. The respondent did not object to the admissibility of this substantive change in Dr. Tepperman’s opinion. When asked why he said nothing about a ten-year restriction on employment in his written report, Dr. Tepperman said that he could not provide an answer.
43Accordingly Dr. Tepperman’s opinion and his limited degree of expertise in the area of lymphedema could reasonably have been seen by the jury to have been substantially undermined at trial. In this circumstance, it cannot be said that the jury acted unreasonably in rejecting his spontaneous opinion about early retirement for the appellant, and in accepting his written opinion that the appellant could perform sedentary work.
44Further, the jury did not act unreasonably in rejecting the evidence of Dr. Kumove. Trials are not about general statistics but about the particular litigant. Dr. Kumove’s statistics about disabled employees did not apply to Ms. Lazare’s very successful employment and employment prospects, particularly when considered in the context of her clear intelligence, enthusiasm and considerable abilities, including her obvious success in performing her relatively sedentary employment with Rogers unaffected by her leg injury.
Result
45In my view, the appellant has failed to establish that the verdict is unreasonable and unjust. Since there was ample evidence to support the jury’s verdict regarding loss of future income, it is anything but unreasonable or unjust. Even if a different trier of fact may have awarded Ms. Lazare some damages for future loss of income, it cannot be said that no trier of fact would have done so on the basis of the evidence presented at trial. The jury in this case was provided with careful and proper instructions on how to arrive at its verdict. There is nothing in the evidence or in the verdict that suggests that the jury failed to comply with these instructions, appreciate its duty or act wilfully. The jury’s careful assessment of its verdict is reflected in the high award for non-pecuniary damages, an award that amply and generously compensated the appellant for the long term effects of her injuries and their impact on her personal, athletic, social and sexual life. The jury also was also clearly alive to the issue of loss of income because it awarded Ms. Lazare damages for her year at university following the accident.
46Indeed, in my view, the appellant is not entitled to a new trial for the purpose of calling evidence that she did not call at the first trial. Absent good reason, litigants are not entitled to two kicks at the can. The appeal must be dismissed.
47I find some support for this conclusion in the decision of the experienced trial judge who determined on a Rule 52.08(1) motion that the jury’s verdicts were not conflicting. While I recognize the distinction described in the reasons of Laskin J.A. between conflicting verdicts under Rule 52.08(1)(c) and unreasonable verdicts, I am also cognizant that, as in Burlie v. Chesson (2001), 146 O.A.C. 106, there is much “overlap” between the arguments made on that motion and on this appeal. Clearly, there was much overlap in this case because the appellant argued before the trial judge that it was inconsistent for the jury to award non-pecuniary damages in an amount approaching the maximum allowable under Canadian law, on the one hand, and to deny the appellant any award for future loss of income, on the other hand. The trial judge rejected this submission and dismissed the motion. Although unfortunately the trial judge’s reasons for her dismissal could not be located despite the diligent efforts of all, the jury in this case was in the best position to make findings of fact and the trial judge was in the best position to assess the verdict. In my view, the trial judge’s assessment on the motion would have incorporated a consideration of its reasonableness in light of the jury’s findings regarding the other heads of damages.
48Finally, while I disagree with Laskin J.A. that this verdict is unreasonable, in my view the only available remedy in the face of an unreasonable verdict would be a new trial. In this case, the jury’s verdict was clearly based on its rejection of the appellant’s expert evidence and its acceptance of the evidence about the appellant’s promising career. Since credibility was the central issue, in my view it is not open to this court to substitute its own opinion about the appellant’s loss of future income. Furthermore, since the appellant sought $563,850 to $2.8 million in loss of future income at trial and the respondent sought an award of zero, it is not reasonable for this court to arrive at an appropriate figure. It would not be “just” within the meaning of s. 119 of the Courts of Justice Act, to substitute our own assessment of credibility and damages. Indeed, it would be unjust. Thus, if I had been persuaded that the verdict for future loss of income was unreasonable, I would have ordered a new trial.
49In concluding, and on behalf of the panel, it is appropriate to express our admiration for the positive attitude and approach demonstrated by the appellant in the face of her adversity. As well, we thank both counsel for their very able presentations of this appeal.
50Counsel agreed that costs of $7,500, inclusive of disbursements and Goods and Services Tax would be awarded to the successful party on this appeal. Accordingly, I would award costs in that amount to the respondents.
“S.E. Lang J.A.”
“I agree R.G. Juriansz J.A.”
51I have read Lang J.A.’s judgment and I do not agree with it. The only issue on this appeal is whether the jury’s award of zero for Andrea Lazare’s future income loss is unjust and unreasonable. In my view, it is. I would allow her appeal and substitute a figure of $480,000 for her future loss of income.
A. Overview
52When the accident occurred in September 2001, Andrea Lazare was an active, intelligent 21 year old starting fourth year university with a promising future. She was standing on a median soliciting funds for cystic fibrosis when she was knocked unconscious by a car driven by the respondent Danica Harvey. She suffered many injuries. But by far the worst was the injury to her left leg. She was later diagnosed with lymphedema of the leg – a rare, disabling, and progressively deteriorating condition with no known cure and potentially fatal complications.
53At trial, the respondents admitted liability3 and called no evidence whatsoever. The jury awarded Ms. Lazare $290,000 in general damages, more than the range of $175,000 to $250,000 recommended by the trial judge, and only $25,000 less than the $315,000 maximum allowable under Canadian law. The respondents have accepted this award. They have paid the money to Ms. Lazare. By its very high award, the jury obviously accepted the gravity of Ms. Lazare’s injuries and the extent of her pain and suffering.
54Yet, unfathomably, the jury awarded Ms. Lazare nothing for her future loss of income. Perhaps it was unduly influenced by Ms. Lazare’s own courage, determination, and refusal to complain in the face of her adversity; despite her lymphedema, she got a job with Rogers Communications working for the Toronto Blue Jays, was singled out as a top performer, was quickly promoted into the corporate sales department, and, at the time of trial, was earning around $25,000. Or, perhaps the jury was influenced by the testimony of Ms. Lazare’s supervisor, who after supervising her for but three months claimed she was targeted to be a manager and could succeed in anything she undertook. If the jury was so influenced, then its appraisal of Ms. Lazare’s future was idealistic, but hardly realistic or reasonable.
55For the expert evidence, all called by Ms. Lazare, and her own evidence, give a very different appraisal. Lymphedema means that a person’s lymphatic system has been compromised. In Ms. Lazare’s case, fluids that would normally be processed through the body accumulate in her left leg causing intense pain and swelling. The pain and swelling severely limits her ability to walk, stand, or even sit for extended periods. It saps her energy. She often cannot work a full day. She certainly cannot put in the extended hours ordinarily required for higher paying positions.
56Indeed, as the years pass, Ms. Lazare’s lymphedema will only get worse. By the time of trial, despite extensive medical treatments, her condition had already deteriorated. This has happened even though she tries to control the swelling by immobilizing her leg in a “lymph press” for at least six hours every night, by wearing a “Reid sleeve” or compression stockings during the day, and by taking weekly treatments to drain the fluids from her leg. None of this evidence was contradicted. In the face of the compelling evidence supporting Ms. Lazare’s claim, an award of zero for future income loss was both unjust and unreasonable.
B. Analysis
(1) The standard of review of a civil jury verdict and the positions of the parties on appeal
57The standard of appellate review of a civil jury verdict is well established. Where, as in this case, the trial judge’s charge is fair and accurate, the jury’s verdict will be set aside only where it is “so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”: see McCannell v. McLean, [1937] S.C.R. 341 at 343. Although this standard means that appellate courts should treat jury verdicts deferentially, it does not mean that they should treat them “with awe”: see Olmstead v. Vancouver Fraser Park District, [1975] 2 S.C.R. 831 at 839. Juries are not infallible. They make mistakes. When they do, an appellate court should not hesitate to intervene.
58Ms. Lazare contends that the jury’s award for future income loss is unreasonable and requires appellate intervention. The respondents and my colleague contend that the jury’s award of zero is reasonable for three reasons: (1) they say there was evidence at trial, principally that of Ms. Spotton (Ms. Lazare’s supervisor) and Ms. Lazare herself, showing that she would not suffer a loss of earning capacity because of her injury; (2) they say the medical and other evidence does not support Ms. Lazare’s claim; and (3) they say the trial judge’s ruling at the end of the trial – dismissing the appellants’ motion under rule 52.08(1)(c) for an order that the jury’s awards were “conflicting” – supports the verdict.
59I do not accept any of these three contentions. First, neither Ms. Spotton’s optimistic opinion about what Ms. Lazare can accomplish nor Ms. Lazare’s own evidence about the professional success she has achieved so far lend any credible support to the respondents’ claim that her income will not be compromised in the future.
60Second, contrary to the position taken by my colleague and the respondents, in my view the medical evidence – which as I have said was entirely uncontradicted – overwhelmingly supports Ms. Lazare’s future loss of income claim.
61And third, the trial judge’s ruling that the jury awards were not conflicting does not answer the question we must answer: whether the award of zero for future income loss was unjust and unreasonable.
62For reasons that I will elaborate on, in my opinion the jury’s award was unreasonable and should not stand. In discussing why I say this is so, I will also address the arguments put forward by my colleague and the respondents.
(2) The jury’s award of zero for future income loss was unjust and unreasonable
63To establish her claim for loss of future income, Ms. Lazare did not need to make out her case on a balance of probabilities. Instead, she merely had to show a real and substantial possibility that she would suffer a loss of income in the future because of her injury: see Schrump v. Koot (1997), 18 O.R. (2d) 337 (C.A.) and Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.).
64Typically, an award for future loss of income is intended to compensate for the loss of earning capacity – in other words, to compensate for the loss of an asset, the capacity to earn: see M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477 at para. 47. The trial judge so instructed the jury. In her words, “[w]hat you are required to do is arrive at a lump sum figure that will fairly and reasonably compensate Andrea for her future loss of earning capacity. It is up to you to assess that amount on the basis of the evidence.” What then did the evidence show?
65The respondents and my colleague Lang J.A. point to the evidence of Ms. Spotton, Ms. Lazare’s supervisor, to support the verdict. Ms. Spotton was obviously a huge fan of Ms. Lazare’s. She testified that Ms. Lazare could succeed in anything she wanted to do and that she had exceeded the organization’s expectations. In Ms. Spotton’s view, if Ms. Lazare maintained her current level of performance she would be promoted to a manager.
66Ms. Spotton’s testimony does provide some support for the conclusion that Ms. Lazare will not suffer a future income loss because of her injury. However, to draw that conclusion from her evidence is neither fair nor reasonable. It is not so because of the significant limitations of her testimony and because of the overwhelming evidence against that conclusion.
67When Ms. Spotton gave her rosy opinion of Ms. Lazare’s future, she had supervised her for only three months. Ms. Lazare was one of thirty to thirty-five people Ms. Spotton was supervising. Moreover, unlike Ms. Lazare’s previous supervisor, Ms. Spotton was unaware that Ms. Lazare frequently left work early for medical appointments or because she could tolerate the pain. She was not even aware of Ms. Lazare’s lymphedema until they went on a business trip together. And her opinion that Ms. Lazare would “be good” at anything she undertook, including obtaining a managerial position with Rogers, was qualified by a major caveat: that Ms. Lazare could maintain her current level of performance indefinitely.
68But all the evidence called at trial demonstrated that despite Ms. Lazare’s determination, perseverance, and best efforts, she will not be able to maintain her high performance as her condition progressively deteriorates. This evidence comes from three sources: the medical experts, Ms. Lazare herself, and a vocational assessment and rehabilitation expert.
69The jury heard expert medical testimony from Dr. Tepperman (a specialist in physical medicine and rehabilitation) and received written medical reports from several others including Dr. Pilowski (a psychologist), Dr. Ogilvie-Harris (an orthopaedic surgeon), Dr. Nasser (a general and vascular surgeon), and Dr. Richards (a plastic surgeon). Their evidence showed the following.
70First, Ms. Lazare’s lymphedema and other injuries amount to a serious physical impairment. For the rest of her life she will have a limited ability to kneel, squat, run, jump, and go up or down stairs. If she walks or even stands for extended periods she will frequently have to rest to elevate her leg. And she will always have to endure pain in her leg.
71Second, lymphedema is degenerative and will almost surely get worse. The degeneration will become more pronounced if she has a job that requires a lot of walking or standing, if she gets pregnant, or even if she gets a minor skin infection from a mosquito bite on her leg.
72Third, because of her physical limitations, Ms. Lazare will require sedentary or, at least less demanding employment that allows her to be seated much of the time. Overall, the tenor of the medical evidence is that although up to the time of trial Ms. Lazare had coped reasonably well with her condition, she faces a difficult road ahead. Simply put, she will not be able to take on a job that is physically demanding, or that demands long hours of work, or that requires prolonged standing or walking, or that needs a high level of energy. Instead, for the rest of her life she will be restricted to “light” employment and to compensation commensurate with that kind of employment.
73Lang J.A. does not think that the medical evidence supports Ms. Lazare’s claim for two reasons. First, she says that Dr. Tepperman knew little about Ms. Lazare and her condition, and in any case, counsel for the respondents’ cross-examination of him undermined his opinion. Second, she says that the other medical evidence offers only a “limited foundation” for Dr. Tepperman’s opinion about Ms. Lazare’s future employment prospects.
74I do not agree with my colleague’s view of the medical evidence. The trial judge ruled that Dr. Tepperman could give expert opinion evidence on lymphedema, on Ms. Lazare’s prognosis, and on how her condition might affect her future employment. Although Dr. Tepperman agreed that he has not had “a great deal of exposure” to lymphedema, this is because the condition itself is very rare. The trial judge found that he had enough experience to be considered an expert in the field. The respondents do not challenge that finding in this court.
75As might be expected from a careful practitioner, before giving his opinion, Dr. Tepperman reviewed the other medical reports on Ms. Lazare, met with her, and took her medical history. In his evidence Dr. Tepperman discussed in detail the many day to day problems and possible complications associated with lymphedema. He emphasized that the condition is permanent, and “not reversible by any means”. And while he held out the hope that it might be controlled with stockings and “pneumatic pressure devices”, he said the condition “often is not well controlled, and it usually tends to progress with time, and it is a very serious disorder”.
76Dr. Tepperman then turned to the effect of Ms. Lazare’s condition on her ability to work in the future. He made two points. First, Ms. Lazare’s condition will limit the kind of jobs she can take:
Q. Part of your expertise, Doctor, is to estimate how this might affect somebody’s employment, their ability to maintain employment and continue working.
Can you help us in this case of how this might affect Andrea Lazare’s employment?
A. I’ll try. Basically, because of the condition itself, the swelling, she wouldn’t be able to manage any kind of job that requires any length of time standing or walking or certainly climbing, running, jumping, things of that sort.
All right. So it would have to be a sedentary job where she is off her feet most of the time.
That would help reduce the swelling or keep the swelling from increasing to a certain degree, but there is another issue, and that’s the issue of pain.
77Second, because her condition is progressive, Ms. Lazare will have difficulty maintaining employment and likely will not be able to work more than ten years:
A. In spite of the fact that the swelling alone would not prevent her from managing a sedentary job, the degree of pain resulting from the condition, the secondary effect on the nerves, could become disabling because of the problems with concentration, with emotional responses to pain, and could lead to difficulty maintaining employment, even with the swelling itself not being the cause directly.
Q. And how long – if the condition is a progressive one, and we have heard from a vascular surgeon that it is a progressive condition, what might she be facing in terms of her employment for the future?
A. Well, considering her age, at her age she has got a long time for this to progress.
Q. Right.
A. And I would estimate probably within 10 years she will probably not be capable of working, and much of this may depend not just on the degree of swelling, but also on her ability to tolerate consistently being in pain.
78Lang J.A. says that on cross-examination Dr. Tepperman’s opinion was “substantially challenged”. She points out that in his report Dr. Tepperman did not say Ms. Lazare would only be able to work another ten years. She says that he could provide no answer for this omission. But he did provide an explanation. He was not avoiding the question but was only asked to answer it at trial. More important, this omission does not affect Dr. Tepperman’s overall opinion: Ms. Lazare’s condition will worsen and the worsening of her condition will adversely affect her ability to work in the future.
79The other medical evidence was consistent with Dr. Tepperman’s opinion. For example, Dr. Nasser said that Ms. Lazare’s lymphodema is a “condition that will slowly but progressively get worse”. Dr. Ogilvie-Harris said that Ms. Lazare’s injuries represent a “permanent and serious impairment of important bodily functions … [and] limit her competitiveness in the labour market on a long-term basis.”
80My colleague and I differ on the strength of the medical evidence. In my view, all of it points in one direction – that Ms. Lazare’s condition is permanent, that it is serious, and that it will get worse. None of it suggests that Ms. Lazare’s future employment will be unaffected by her progressive and disabling condition.
81Ms. Lazare’s testimony about her present condition gives credence to the medical evidence. She already has difficulty with her energy level. At times, she is anxious, irritable, forgetful, and unable to concentrate. When she sits at a desk, her left leg must be elevated. She is in constant pain. She often has to leave work early or call in sick because the pain and swelling in her leg are not tolerable. She not only has to wear a “Reid sleeve” or compression stockings during the day and use the “lymph press” at night, she must go to a therapist once a week to have the fluids manually drained from her leg.
82Respectfully, Lang J.A. does not adequately take into account that Ms. Lazare’s lymphodema is degenerative, and that her current condition will worsen over time. Instead, she seeks to support the jury’s failure to award Ms. Lazare any future income loss by pointing to the success Ms. Lazare has already achieved at Rogers. However, Ms. Lazare’s present or past professional achievements are not the focus of this appeal. The focus must surely be on the future, and that future almost certainly will not bring the same measure of success Ms. Lazare would have achieved without her injury.
83For, as I have said, with the passage of time, Ms. Lazare’s current condition will only deteriorate. Yet as she tries to move up the corporate hierarchy at Rogers or elsewhere, any job she might apply for will inevitably be more demanding, call for longer hours, more energy, more walking, and more standing. Common sense tells us as much. Without her lymphedema, Ms. Lazare’s intelligence, enthusiasm, dedication, and the high energy she exhibited before the accident would undoubtedly have made her an ideal candidate for a senior management position. Sadly, her lymphedema has seriously compromised her competitive marketability in the workplace. To now say there is no real and substantial possibility she will suffer a loss of income in the future defies reason.
84The evidence of Mr. Kumove, an expert in vocational assessment and rehabilitation, also supports my opinion. He testified that the disabled – and Ms. Lazare is functionally disabled – face a competitive disadvantage in the workplace. Statistics show that disabled persons earn significantly less money than non-disabled persons, receive fewer salary increases, are less often employed full-time, and are less likely to be promoted.
85Lang J.A. says that Mr. Kumove’s evidence has little weight because “trials are not about general statistics but about the particular litigant.” Yet, in addition to the obvious points that Mr. Kumove’s statistics were uncontradicted and that statistics can assist a trier of fact to evaluate a “particular litigant”, Mr. Kumove also gave expert opinion evidence about Ms. Lazare specifically. Mr. Kumove recognized that she was having some success in the workforce but is still struggling:
A. Well, when I look at Andrea’s situation now, I see a person who has a significant disability who is making a good effort to stay employed and is having a reasonable degree of success. Actually, relative to the seriousness of her problems she is doing quite well, but she is struggling. She is struggling in terms of concentration. She is struggling in terms of pain. She is struggling in terms of her ability to maintain attendance.
86Mr. Kumove also gave expert opinion evidence about Ms. Lazare and her future employment prospects. He said, “she faces some very formidable barriers to advancing to higher levels of management.” He elaborated on the inevitable competitive disadvantage she will face in the following words:
A. Because of the limitations she faces due to the disability, I mean, even at this point, Andrea leaves early, sometimes has to call in sick from work, has to moderate her hours in terms of she has to work as many hours she can. She doesn’t work a regular number of hours during the week, and as you rise to higher managerial levels in the business the expectation for you being there all the time gets more and more important and I don’t see how Andrea could be expected to just always be there for as long as it takes to get the job finished as a manager, as a director, as a vice president. It is a sales position. The most important person is the customer or the client. Corporate sales, that involves long meetings, involves socializing with the client.
I think that at every step along the way the fact that Andrea she can’t sit for as long, she can’t stand for as long, she faces problems, although I’m sure she tries her best, she faces problems with concentration, that I believe that that will definitely hold her back in how far she will go, how many hours she will work, and could very well affect her sustainability on a long-term basis in a job.
87Mr. Kumove concluded that if Ms. Lazare’s condition got any worse, “I think that very quickly she will reach the point where she is no longer able to stay in the competitive labour market.” As I have already said, Dr. Ogilvie-Harris gave the same opinion. And, of course, all the medical evidence overwhelmingly suggests that her condition will worsen.
88The evidence of the experts and Ms. Lazare lead to but one conclusion: there is a real and substantial possibility that Ms. Lazare will suffer a future income loss. No other reasonable and just conclusion is available on this record. I would therefore set aside the jury’s award of zero for future income loss.
(3) The trial judge’s ruling under rule 52.08(1)(c) does not preclude this court from reassessing Ms. Lazare’s
89After the jury gave its verdict, Ms. Lazare’s counsel brought a motion before the trial judge under rule 52.08(1)(c) of the Rules of Civil Procedure contending that the jury’s award of general damages and future loss of income were conflicting. Rule 52.08(1)(c) states:
(1) Where the jury,
(c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,
the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action. [Emphasis added.]
90The trial judge reserved briefly on the motion and then dismissed it. The respondents rely on the trial judge’s ruling in support of their argument that Ms. Lazare’s appeal be dismissed. Lang J.A., too, relies on it. In my view, for two separate reasons, the trial judge’s ruling provides no support for a dismissal of this appeal.
91First, the trial judge’s endorsement containing the reasons for her ruling has been lost and, despite everyone’s diligent efforts, has not been found. We cannot review the basis for the ruling without the reasons for it.
92Second, and more important, the appellate standard of review of a civil jury verdict differs from the standard applied by a trial judge under rule 52.08(1)(c). Although in some cases the two may overlap, review on a standard of “unjust and unreasonable” is broader than review for “conflicting answers”.
93This difference finds support not only in the plain meaning of the different words used, but in recent case law from this court. Two cases in particular show the difference: the decision of Osborne A.C.J.O. in Lang v. McKenna (2000), 135 O.A.C. 304 and the decision of Charron J.A. in Burlie v. Chesson (2001), 146 O.A.C. 106.
94In Lang, at para. 24, Osborne A.C.J.O. emphasised that even if there was some evidence to support the jury’s answers and those answers were not “conflicting”, only an appellate court can decide whether a jury’s answer was reasonable:
If there is some evidence to support the jury’s verdict (as distinct from no evidence), it is still open to the unsuccessful party to contend on appeal that the jury’s verdict was not supported by the evidence. However, as I have said, the unreasonable or perverse verdict issue is an appellate court issue, not an issue to be dealt with by the trial judge under rule 52.08(1)(c).
95In Burlie, a jury concluded that the defendant did not contribute to any portion of the plaintiff’s injuries but then assessed general damages at $25,000. The trial judge dismissed the plaintiff’s motion under rule 52.08(1)(c), holding that the jury’s answers were not conflicting because it had been instructed to assess damages even if it concluded that the defendant was not at fault. On appeal, at para. 31, Charron J.A. said that the question whether a jury’s answers are conflicting differs from the question whether the answers themselves are reasonable:
The trial judge ultimately ruled that the answers were not conflicting and she dismissed the motion. Although the question for determination on this appeal, the reasonableness of the verdict, is different from that raised on the rule 52.08 motion, there is much overlap between the arguments made on that motion and on this appeal.
96Although she accepted that the jury’s answers did not conflict, Charron J.A. nonetheless considered whether the jury’s finding that the defendant was not at fault was reasonable – she held that it was. By addressing the issue of reasonableness, Charron J.A. acknowledged that appellate review of a jury verdict not only differs from but is broader than a trial judge’s ruling under rule 52.08(1)(c).
97Thus the trial judge’s rule 52.08(1)(c) ruling does not preclude this court from finding that the jury’s award of nothing for future income loss was unjust and unreasonable.
(4) A reasonable award for Ms. Lazare’s future loss of income
98I have concluded that the jury’s award of zero for Ms. Lazare’s future income loss is unjust and unreasonable. I now have two choices: order a new trial on this issue or try to assess the loss myself. I choose the latter option.
99On an appeal from an award for damages for personal injury, s. 119 of the Courts of Justice Act, R.S.O. 1990, c. C-46 permits this court “if it considers it just” to “substitute its own assessment of the damages”. My colleague says it would not be “just” for this court to assess damages because “credibility was the central issue” at trial. However, credibility was never the central issue at trial. Indeed, it was not an issue at all, largely because the defendants chose to call no evidence. Neither at trial nor in this court did counsel for Ms. Lazare or the respondents suggest that this case turned on the credibility of the witnesses.
100In my view, this is the type of case where an appellate court should exercise its power under s. 119. My view finds support in the judgment of Borins J.A. in Padfield v. Martin (2003), 64 O.R. (3d) 577 (C.A.). There at para. 56 he referred to the type of case where the court should substitute its own assessment of damages:
Where the fairness of the trial is not in issue, and the jury appears simply to have arrived at an inappropriate assessment on the evidence, the interest in avoiding the delay and expense of a new trial would seem to weigh in favour of the appeal court substituting its own assessment. [Footnote omitted.]
101This case is the type of case Borins J.A. referred to. The trial was fair; the trial judge’s charge to the jury was balanced and accurate; the accident occurred over six years ago; a new trial would cause delay and expense. These considerations argue for having this court assess damages, even though the evidence on which to do so is not entirely satisfactory.
102As Lang J.A. points out, at trial Ms. Lazare rested her loss of future income claim on either of two bases: her injuries prevented her from becoming a lawyer; or her injuries will impede either her ability to work to normal retirement age (statistically 62) or her opportunity to obtain a high paying, high ranking job. On appeal, Ms. Lazare abandoned her claim for future loss of income based on becoming a lawyer. She likes her job at Rogers, she was an active athlete before the accident, and she has always been interested in the business side of sports.
103I do not find the expert evidence on future income loss led at trial very helpful. Thus my award is but a guesstimate. During oral argument, Ms. Lazare’s counsel suggested a figure of $480,000, which is a present value calculation that assumes an annual loss of earnings of $25,000 from age 35 until retirement at age 62 and uses appropriate multipliers. The respondents did not suggest a different figure. I accept this amount as a fair estimate of Ms. Lazare’s future loss of income and would award that amount to her.
C. Conclusion
104The jury’s failure to award Ms. Lazare any money for future income loss was unjust and unreasonable. I would set aside the jury’s award and substitute a figure of $480,000. The appellants are entitled to their costs of the appeal in the agreed upon amount of $7,500 inclusive of disbursements and G.S.T.
“John Laskin J.A.”
RELEASED: March 11, 2008
“JIL”
Footnotes
- (1894), 23 S.C.R. 164.
- (1919), 59 S.C.R. 471.
- The respondents admitted liability in exchange for the appellants’ agreement to restrict their claims to the respondents’ third party liability limit of $1 million.
