COURT OF APPEAL FOR ONTARIO
Laskin, Gillese and Blair JJ.A.
BETWEEN
Caleb MacDonald, Jesseca MacDonald and Aaron MacDonald Minors by their Litigation Guardian, Harold MacDonald, Shelley MacDonald and the said Harold MacDonald personally
Plaintiffs (Respondent/Appellants by way of cross-appeal)
and
Karoul Talaba, Executrix of the Estate of Kathleen Chalmers and John Chalmers, Deceased, Morgan Saar Talaba and Allstate Insurance Company
Defendants (Appellants/Respondents by way of cross-appeal)
Peter F. Yaniszewski, for the appellants/respondents by way of cross-appeal
Kirk F. Stevens and Darcy W. Romaine, for the respondent/appellants by way of cross-appeal
Heard and released orally: December 16, 2008
On appeal from the judgment and on cross-appeal from the costs order of Justice Michael Brown of the Superior Court of Justice, dated November 1, 2006 and February 14, 2007, respectively.
1The defendants appeal a jury verdict awarding the plaintiff, Harold MacDonald, $343,560 for general damages, past and future income loss, and loss of home maintenance and handyman services. Mr. MacDonald was injured in a car accident in July 1997. Because of the accident, he suffers from chronic myofascial pain in his left shoulder and neck. His claim was governed by the Bill 59 regime, which under s. 267.5(5) of the Insurance Act precluded claims for non-pecuniary loss unless the claimant sustained permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function.
2The trial judge found that, as a result of the accident, Mr. MacDonald sustained a permanent serious impairment of an important physical function, and thus met the threshold under s. 267.5(5) of the Act.
3The appellants raised numerous grounds of appeal in their factum. In oral argument, they focused on three:
the trial judge erred in refusing leave to the defence to call two expert, a chiropractor and an occupational therapist;
the trial judge did not adequately instruct the jury on future income loss; and
the jury’s award of $92,500 for general damages was inordinately high.
4We did not find it necessary to call on the respondent on any of these grounds. Here are our brief reasons for dismissing the appeal.
1) Refusal of leave to call the two experts
5The appellants did not serve expert reports as required by r. 53.03 of the Rules of Civil Procedure. Instead, they sought leave under r. 53.08 to call the experts after Mr. MacDonald, two doctors and another witness had testified for the plaintiffs. The trial judge refused leave, ruling that to permit the defence to call the experts at this stage of the trial would cause undue delay and non-compensable prejudice to Mr. MacDonald.
6The appellants submit that the trial judge erred in his ruling. Their principal contention is that non-compliance with r. 53.03 was “technical” at best. They say that the respondent was aware these experts might be called because their reports were in the accident benefits file listed on the schedule for business records in the amended notice of intention. We disagree with this submission. The two reports were not separately and expressly listed either in the business records schedule or, where they should have been listed, in the schedule for reports of medical practitioners. Thus, we think it was open to the trial judge to find prejudice and undue delay.
7The basis for that finding is well grounded in the trial judge’s reasons. He pointed out that the contents of the two expert reports had not been put to Mr. MacDonald of his three witnesses. Thus, if he were to grant the appellants’ motion, all four witnesses would have to be re-called, which would have the effect of unfairly highlighting the contents of the reports for the jury and of unfairly distorting the way Mr. MacDonald had chosen to present his case to the jury. As the trial judge pointed out, had the motion been made at the onset of the trial, he may well have taken a different view. Accordingly, we do not give effect to this ground of appeal.
2) Instructions on future income loss
8The trial judge correctly instructed the jury on the law governing future income loss claims. The appellants’ real complaint is that the trial judge did not tell the jury about what they contend was the weak or non-existent evidence supporting a future loss of income claim.
9We decline to give effect to this contention. No objection to the instructions on future income loss was made at trial. The absence of an objection weighs heavily against giving effect to this argument on appeal. Moreover, there was evidence supporting Mr. MacDonald’s claim. Had the trial judge instructed the jury on the weaknesses of the claim, he would have been bound to highlight its strengths. That the trial judge did neither did not cause a miscarriage of justice. Accordingly, this ground of appeal must fail.
3) The award of general damages
10The appellants submit that an award of $92,500 for general damages is excessive and that an award in the range of $35,000 to $45,000 is appropriate.
11We acknowledge that $92,500 in generous. But, in our view, it is not so generous that it warrants overturning the jury’s assessment. We notice that the defence counsel (not Mr. Yaniszewski) declined to suggest a range, asserting that damages were “nominal”. The appellants’ position on appeal is therefore inconsistent with their position at trial and we decline to give effect to it.
12Accordingly, the appeal is dismissed with costs to the respondent in the agreed-upon amount of $15,000, inclusive of disbursements and GST.
The respondents’ cross-appeal of costs
13The respondents seek leave to appeal the costs award of just under $200,000. If leave is granted, they wish to argue that the trial judge made three errors in the costs award.
14First, they say that the trial judge erred in refusing to award costs on a substantial indemnity basis from the date of their first offer to settle. They acknowledge that their second offer expressly revoked their first offer, thus taking it outside of r. 49.10. However, they argue that r. 49.13 ought to apply, given that the second offer “seamlessly” replaced the first and that both offers were substantially lower than the judgment they obtained.
15We accept that it was open to the trial judge to have taken that view of the offers: see Thomas v. Bell Helmets Inc., 1999 9312 (Ont. C.A.) at paras. 52-53. However, we decline to give effect to this ground because the argument is being advanced for the first time on appeal.
16The second ground raised on the cross-appeal is that the trial judge disallowed approximately 200 of the 400 hours docketed for trial preparation by plaintiffs’ counsel on the basis of a misapprehension that the plaintiffs’ lawyers were claiming for two duplicate sets of trial preparation time. We accept this argument. In para. 19 of the reasons, the trial judge expressly states this saying “In essence, the plaintiff is claiming for two sets of preparation costs”. Indeed, the defendants themselves acknowledged in their costs submissions to the trial judge that there had been minimal duplication of trial preparation time by the plaintiffs.
17The trial judge’s misapprehension that the respondents had prepared for trial twice underpins his determination that the preparation time was excessive. We accept that a reduction of 28.5 hours for duplication is warranted. In so doing, we accept the figure proposed by the defendants below in this regard to the trial judge.
18As well, we acknowledge the trial judge’s determination that the amount claimed for trial preparation was excessive. Thus, in addition to the reduction for duplication, we accept the defendants’ position at trial that a further reduction of 25 per cent would meet the reasonable expectation of the parties.
19The third ground on the cross-appeal relates to the trial judge’s disallowance of time spent at trial on two unsuccessful motions to strike the jury. We see nothing in this ground. The plaintiffs were unsuccessful in those motions and it was within the trial judge’s discretion to disallow costs for those motions, despite the fact that they had been reasonably brought.
20Accordingly, leave to appeal costs is granted and the cross-appeal is allowed in part. An order shall go in accordance with these reasons. We trust that the parties can resolve the mathematical calculations in order to implement the order but, if not, they may return to the panel for its assistance in that regard. We would fix costs of the cross-appeal at $2,500, all inclusive.
“John Laskin J.A.”
“E.E. Gillese J.A.”
“R.A. Blair J.A.”