Little (Litigation Guardian of) v. Floyd Sinton Ltd.
Indexed as: Little (Litigation Guardian of) v. Floyd Sinton Ltd.
Ontario Reports
Court of Appeal for Ontario
Tulloch, Roberts and Miller JJ.A.
November 4, 2019
149 O.R. (3d) 38 | 2019 ONCA 865
Case Summary
Civil procedure — Trial — Charge to jury — Trial judge not misdirecting jury on causation and contributory negligence in personal injury action where plaintiff catastrophically injured — Trial judge erring in removing question of mitigation from jury but no miscarriage of justice resulting.
Damages — Mitigation — Teenage plaintiff catastrophically injured after deliberately jumping from moving school bus — Trial judge erring in removing question of mitigation from jury but no miscarriage of justice resulting — Medical evidence not establishing that proposed mitigation would have affected plaintiff's prognosis.
Damages — Personal injuries — Causation — Teenage plaintiff catastrophically injured after deliberately jumping from moving school bus — Jury assessing liability 25 per cent to plaintiff and 75 per cent to defendant school bus operator — Trial judge not misdirecting jury on causation and contributory negligence.
Damages — Personal injuries — Deductions — Teenage plaintiff catastrophically injured after deliberately jumping from moving school bus — Jury awarding substantial damages — Defence counsel inadvertently failing to notice that formal order provided for no deduction of statutory accident benefits from damages award — Issue remitted to trial court to resolve issue of whether counsel agreed not to apply deduction.
Torts — Negligence — Apportionment of liability — Causation — Contributory negligence — Teenage plaintiff catastrophically injured after deliberately jumping from moving school bus — Jury assessing liability 25 per cent to plaintiff and 75 per cent to defendant school bus operator — Trial judge not misdirecting jury on causation and contributory negligence.
Facts
The plaintiff was age 13 when she deliberately jumped from the back of a moving school bus in keeping with an informal tradition among the graduating Grade 8 students at her school. The bus was moving at about 20 kilometres per hour. The plaintiff suffered a catastrophic head injury when she fell. The statement of defence pleaded failure to mitigate for failing to follow medical recommendations for continuing psychiatric treatment and residence in a supervised group home following a suicide attempt. There was unchallenged trial evidence that one of the defendant's bus drivers had reported to the defendant's now deceased owner that there were incidents of students jumping from school buses at the end of term between 2007 and 2009. No report of such incidents was communicated to the school. The plaintiff's injury occurred in 2011. A jury found the defendant 75 per cent liable for the plaintiff's injuries for failing to follow clear expectations set out in its own handbook by not reporting re-occurring unsafe acts. The defendant appealed, seeking a reduction of damages or a new trial on the grounds of an improper jury charge and failure to deduct statutory accident benefits from the damages award.
Held, the appeal should be allowed in part.
The trial judge did not misdirect the jury on causation and contributory negligence. She clearly set out the different factors that led to the plaintiff's injuries, namely, the defendant's failure to report the incidents and the plaintiff's decision to jump from a moving school bus. In the context of summarizing the parties' respective positions, the trial judge explained how those factors related to the parties' negligence theories. She correctly explained the difference between the issues of causation and apportionment of liability. She properly reviewed the "but for" test for causation. The verdict was not plainly unreasonable and unjust.
The trial judge erred in removing the question of mitigation from the jury but that error resulted in no miscarriage of justice. The judge instructed the jury that as a matter of law they could not reduce the plaintiff's damages for failure to mitigate because she lacked capacity to make treatment decisions. That erroneously conflated the issue of duty to mitigate with the question of whether the plaintiff's incapacity affected the reasonableness of her decisions. However, assuming the recommended treatment would have been available in the small window of time between the plaintiff's suicide attempt and the trial, there was no medical evidence that her prognosis would have been improved and her damages reduced. In the absence of such evidence, there was no proof of failure to mitigate and no substantial wrong justifying a new trial.
The issue of deduction of past statutory accident benefits was remitted to another judge of the Superior Court as the trial judge had since retired. Defence trial counsel did not notice that the formal trial judgment had no deduction for statutory accident benefits from the damages award in accordance with the mandatory provisions of the Insurance Act, R.S.O. 1990, c. I.8. Fresh evidence was received on appeal from both parties as to whether counsel had reached some sort of agreement to not apply the otherwise mandatory deduction. With the parties' respective versions of events being diametrically opposed, determination of the issue would require credibility findings which was not appropriate for an appellate court.
Cases Referred To
Janiak v. Ippolito, [1985] 1 S.C.R. 146
Brain v. Mador, [1985] O.J. No. 119, 9 O.A.C. 87, 32 C.C.L.T. 157
Branco v. Epshtein, [2006] O.J. No. 2391, 213 O.A.C. 24, 40 C.C.L.I. (4th) 277
Chiu v. Chiu, [2002] B.C.J. No. 2537, 2002 BCCA 618, 174 B.C.A.C. 267, 8 B.C.L.R. (4th) 227
Engel v. Salyn, [1993] 1 S.C.R. 306
FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 56
Ksiazek v. Newport Leasing Ltd., [2006] O.J. No. 4366, 43 C.C.L.I. (4th) 238
R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53
Sacks v. Ross, [2017] O.J. No. 5171, 2017 ONCA 773, 417 D.L.R. (4th) 387
Samms Estate v. Moolla, [2019] O.J. No. 1484, 2019 ONCA 220
Stilwell v. World Kitchen Inc., [2014] O.J. No. 5242, 2014 ONCA 770
Surujdeo v. Melady, [2017] O.J. No. 242, 2017 ONCA 41, 410 D.L.R. (4th) 538
Statutes Referred To
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134
Family Law Act, R.S.O 1990, c. F.3, s. 61
Insurance Act, R.S.O. 1990, c. I.8, s. 267.8(4), (8)
Appeal
APPEAL by the defendant from the personal injury damages award of Quinlan J., [2018] O.J. No. 2772, 2018 ONSC 3165 (S.C.J.).
Counsel:
David A. Zuber and James B. Tausendfreund, for appellant.
Paul J. Pape, Shantona Chaudhury and Brodie Noga, for respondents.
The judgment of the court was delivered by
L.B. ROBERTS J.A.:
Decision
[1] Introduction
[1] The appellant appeals the judgment following a jury trial by which it was found 75 per cent liable for the damages incurred by the then plaintiff and now respondent, Sarah Little. On Ms. Little's last day of Grade 8 she jumped from the back of a moving school bus operated by the appellant, Floyd Sinton Limited, and suffered catastrophic injuries. She was found 25 per cent contributorily negligent.
[2] Ms. Little was awarded damages in the amount of $7,032,600, plus pre-judgment interest and costs. The respondent, Kristina Dodds, Ms. Little's mother, guardian for care and property, and litigation guardian, was awarded $4,730.56 in damages for loss of care, guidance and companionship under the Family Law Act, R.S.O 1990, c. F.3, s. 61.
[3] The appellant submits that the trial judge erred in her jury instructions on causation and the jury subsequently erred when making findings on this issue and the issue of contributory negligence. The appellant also argues that the trial judge erred by instructing the jury that mitigation was unavailable, as a matter of law, due to Ms. Little's lack of capacity to make decisions regarding her medical treatment. In addition, the appellant submits that the trial judge erred in failing to reduce Ms. Little's damages by the amount of statutory accident benefits she received prior to trial, as required by s. 267.8(4) of the Insurance Act, R.S.O. 1990, c. I.8. The appellant requests a new trial or alternatively that this court correct these alleged errors.
[4] I would allow the appeal in part and remit for hearing to a judge of the Superior Court of Justice the question of whether past statutory accident benefits should be deducted from the damages awarded to Ms. Little. I would otherwise dismiss the appeal with costs to the respondents.
A. Background Facts
[5] This appeal focusses primarily on the wording of the trial judge's jury charge, the jury's answers to questions, and the final judgment rendered. As a result, a brief summary of the relevant facts surrounding the accident and Ms. Little's damages will suffice.
[6] Ms. Little's accident occurred on June 29, 2011, the last day of her Grade 8 school year, when she was returning home on the school bus. Ms. Little and her twin sister had taken the school bus to and from school for a number of years. Ms. Little had been trained as a bus patroller and was taught how to open the emergency door at the back of the school bus. Further, she understood that it was dangerous to jump from the back of a school bus when it was moving.
[7] Nevertheless, on her last ride home in her Grade 8 year, Ms. Little decided to jump from the back of the school bus as it approached her home stop. This was in keeping with an informal tradition that had evolved among the graduating Grade 8 students at her school. Ms. Little was 13 years old at that time.
[8] Ms. Little discussed the plan to jump with her sister and other students on the bus. Numerous students on the bus tried to dissuade her from jumping from the moving school bus, repeating to her what she already knew was a very dangerous act.
[9] Ms. Little was described by the other students as being "flustered" or appearing like she was having an "adrenaline rush" in the moments leading up to the accident. As the school bus approached her home stop, when it was travelling approximately between 20 and 25 kilometres per hour, Ms. Little dashed to the back of the bus, opened the emergency exit door, which had to remain unlocked or the bus would not start, and jumped out of the bus.
[10] After jumping out of the bus, Ms. Little fell and hit her head. She suffered a catastrophic head injury from which she will never recover. It is not in dispute that she is incapable with respect to her personal care and property and that she will likely never be able to work or live independently.
[11] Following a four-week jury trial, Ms. Little was found 25 per cent contributorily negligent for her injuries. The jury's assessed damages of $9,376,800 were therefore reduced to an award of $7,032,600 in damages, plus pre-judgment interest and costs.
[12] The jury found the appellant 75 per cent liable for Ms. Little's injuries because it "failed to follow clear expectations as set out in their own handbook" by its "failure to report re-occurring unsafe acts". These acts consisted of Grade 8 students jumping from the back of school buses on the last day of school. The unchallenged evidence is that one of the appellant's bus drivers had reported students jumping from the school bus at the end of term between 2007 and 2009 to the now deceased owner of the appellant. However, no report of these incidents was communicated to the school. This was contrary to the appellant's handbook that required such incidents to be reported to the school. The principal of Ms. Little's school testified that if these incidents had been reported, proactive steps to curtail such activity would have been taken, including holding school assemblies to address the issue, and suspending bus privileges in the current and following years. She testified that an assembly was held following Ms. Little's accident and that, to her knowledge, no further students have jumped from school buses.
B. Issues
[13] The appellant takes no issue on appeal with the jury's finding that the appellant breached its standard of care. Nor does it dispute the nature and scope of Ms. Little's injuries and the quantum per se of the damages awarded as they relate to those injuries. However, the appellant submits that Ms. Little's damages should be reduced, or a new trial ordered, because of the errors that the trial judge made and because of jury errors that led to a liability verdict that was unreasonable and unjust. The appellant raises the following issues on appeal:
i. In her charge to the jury, the trial judge misstated the law of negligence and causation. As a result, the jury made unclear causation findings and assessed the appellant's proportion of liability higher and Ms. Little's proportion of contributory negligence lower than they would have otherwise done. The jury's verdict was therefore unreasonable and should not stand.
ii. In her charge to the jury, the trial judge erroneously instructed the jury that as a matter of law they could not reduce Ms. Little's damages for a failure to mitigate by not implementing specific treatment recommendations.
iii. Due to an oversight by the trial judge and the appellant's trial counsel (not appellate counsel), the trial judge failed to reduce Ms. Little's damages by the amount of statutory accident benefits she received prior to trial, as required by s. 267.8(4) and (8) of the Insurance Act.
C. Analysis
(i) Causation and Contributory Negligence
[14] The appellant submits that the jury's verdict on liability was so plainly unreasonable and unjust that it should be set aside. From the appellant's view, this unjust verdict resulted from the trial judge's misdirection of the jury on the law of causation. In initially explaining the elements of negligence that Ms. Little had to prove, the trial judge instructed that Ms. Little had to demonstrate that she "suffered damages as a direct result of the negligence of the defendant's employee" (emphasis added). This was an error, the appellant argues, because the test for causation is the "but for" test and damages need not be a "direct result" of the alleged negligence in issue. According to the appellant, its negligence could only be reasonably considered at best an indirect cause of Ms. Little's injuries because of its failure to report prior incidents of students jumping from school buses.
[15] The appellant takes the position that the jury's answers to the questions for the jury illustrate the result of this error: the particulars provided by the jury of the appellant's negligence included that "[t]he plaintiff suffered damages as a direct result" of the negligence which the jury indicated was the appellant's failure to report the prior incidents.
[16] The appellant further submits that despite being instructed to provide full particulars of Ms. Little's negligence, the jury only mentioned that Ms. Little was negligent because she knew it was against the rules to jump out of the emergency exit; the jury failed to mention that Ms. Little was negligent by jumping out of a moving school bus. The appellant submits that this omission is an error and led the jury to assess Ms. Little's contributory negligence lower than they would have otherwise.
[17] I would not give effect to these submissions.
[18] It is well established that a jury charge must be considered against the entire charge and the trial as a whole: Surujdeo v. Melady, [2017] O.J. No. 242, 2017 ONCA 41, 410 D.L.R. (4th) 538, at paras. 82-83; R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53, at paras. 30-31. The question on appellate review is whether the charge provided the jury with adequate assistance to determine the questions it had to decide: Samms Estate v. Moolla, [2019] O.J. No. 1484, 2019 ONCA 220, at para. 48; Sacks v. Ross, [2017] O.J. No. 5171 2017 ONCA 773, 417 D.L.R. (4th) 387, at paras. 81-86, leave to appeal refused, [2017] S.C.C.A. No. 491. In my view, the charge in this case served that function.
[19] The trial judge clearly set out the different factors that led to Ms. Little's injuries, namely, the appellant's failure to report the incidents and Ms. Little's decision to jump from a moving school bus. In the context of summarizing the parties' respective positions, the trial judge explained how these factors related to the parties' negligence theories. She correctly explained the difference between the issues of causation and apportionment of liability. She properly reviewed the "but for" test for causation.
[20] There is no question that the jury was alive to the defence position that Ms. Little should be principally responsible for her tragic decision to jump from a moving school bus. It is noteworthy that in assessing Ms. Little's contributory negligence at 25 per cent the jury rejected her argument that the appellant should bear 80 to 90 per cent of the fault.
[21] I note, finally, that trial counsel for the parties drafted this portion of the charge and no objection was taken to it.
[22] As the appellant correctly states, the standard of appellate review of civil jury verdicts is exceptionally high. A jury's verdict should only be set aside "where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict": Stilwell v. World Kitchen Inc., [2014] O.J. No. 5242, 2014 ONCA 770, at para. 33.
[23] In my view, this standard has not been met in this case. The trial judge did not misdirect on causation and there was ample evidence to support the jury's verdict and apportionment of liability. As such, the liability verdict is reasonable. There is no basis for appellate intervention.
(ii) Mitigation
(a) Introduction
[24] The appellant takes issue with the trial judge's ruling and instruction that the jury could not make any reduction to Ms. Little's damages for a failure to mitigate. Failure to mitigate was pleaded in the statement of defence, and at trial it was argued that after Ms. Little's December 2015 suicide attempt, the respondents failed to follow medical recommendations that Ms. Little receive continuing psychiatric treatment and reside in a supervised group home.
[25] The trial judge's instructions on mitigation appear at paras. 150-154 of her charge. The appellant takes no issue with the trial judge's general description of the concept of mitigation and of the appellant's onus to prove Ms. Little's alleged failure to mitigate. Rather, the appellant takes issue with what the trial judge had to say, at paras. 153-154:
I have decided as a matter of law that you cannot make any reduction to Ms. Little's damages for failure to mitigate. You cannot hold Ms. Little responsible for any failures on the part of her mother or treatment providers to implement treatment recommendations. As for Ms. Little, she was an adolescent and then a young adult diagnosed with a brain injury who, upon attaining adulthood, was assessed to be incapable of managing her personal care and her property. Accordingly, Ms. Little cannot be held responsible for her decisions as she was not capable of making decisions concerning her treatment.
In any event, there is no evidence to prove that Ms. Little's damages would have been reduced had she obtained the recommended treatment.
[26] The appellant submits that the trial judge erred by stating that, as a matter of law, the jury could not reduce Ms. Little's damages for a failure to mitigate. The appellant argues that the question of whether there was a failure to mitigate is one for the trier of fact to decide and there was sufficient evidence, as a threshold matter, for the issue to have gone to the jury.
[27] As I will explain, I agree that the trial judge erred in removing the question of mitigation from the jury on the basis that, as a matter of law, Ms. Little did not have a duty to mitigate her damages because she lacked the capacity to make treatment decisions. However, I am satisfied that the trial judge's error occasioned no miscarriage of justice since it would not have affected the trial outcome.
[28] Assuming the recommended treatment would have been available to Ms. Little in the small window of time between her suicide attempt and the commencement of trial, there was no medical expert evidence that Ms. Little's prognosis would have been different and that her damages would otherwise have been reduced. Specifically, there was no evidence from a qualified medical expert that she would have been able to live independently and become financially self-sufficient. In the light of that conclusion, there is no need to consider the issue of whether Ms. Little's damages ought to be reduced for any failures of her mother, as her guardian of care, or other treatment providers.
[29] Accordingly, I would decline the appellant's request to exercise the discretion under s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to order a rehearing, nor would I reduce Ms. Little's damages. For the reasons that follow, I am of the view that the appellant did not meet its onus to prove that Ms. Little has failed to mitigate her damages.
(b) Plaintiff's Obligation to Mitigate Damages
[30] As the appellant submits, it is a well-established principle that personal injury victims must take all reasonable steps to avoid the negative consequences of their injuries and prevent the accumulation of losses since a defendant is not responsible for damages that could have been reasonably avoided. Such steps may include undergoing reasonable medical treatments and tests. While this is commonly referred to as a plaintiff's obligation to mitigate, it is clear that this obligation is not onerous and that a defendant bears a heavy burden to prove a failure to mitigate. See Janiak v. Ippolito, [1985] 1 S.C.R. 146, at pp. 163, 166-167 S.C.R.; Engel v. Salyn, [1993] 1 S.C.R. 306, at p. 317 S.C.R.
[31] The respondents do not challenge this general principle. However, they submit that Ms. Little's established incapacity to make health care decisions excused her from any obligation to mitigate because it would be manifestly unjust at law to penalize Ms. Little, who was an infant at the time of the accident and found to be incapable after she reached the age of majority, when her incapacity to make rational decisions was the result of the appellant's negligence.
[32] I agree with the appellant's submission that Ms. Little's incapacity did not excuse her, as a matter of law, from mitigating her damages. The difficulty with the respondents' submissions is that they conflate, as the trial judge erroneously did, the question of Ms. Little's obligation to mitigate her damages as a matter of law with the question of whether Ms. Little's incapacity affected the reasonableness of her decisions concerning recommended treatments as a matter of fact to be assessed by the jury.
[33] In support of their position, the respondents seize on an isolated statement made by Wilson J., at p. 159 of Janiak, that "it would appear manifestly unjust to cut off [the plaintiff's] recovery for failure to mitigate his damages through a rational decision as to treatment". In my view, the respondents' reliance is misplaced. When the statement is considered in context, it is clear that Wilson J. is not determining as a matter of law that a plaintiff who is incapacitated as a result of the tortious act is always excused from his or her obligation to mitigate.
[34] At the outset of her reasons, Wilson J., writing for the court, accepted the trial judge's finding that Mr. Janiak was unreasonable in his refusal to accept the recommended medical treatment: at p. 151. However, she took the opportunity to discuss some of what she described as the difficult elements involved in a finding of unreasonableness: at p. 152. It was in that context that she discussed how the "thin skull" doctrine applies in assessing a plaintiff's refusal of medical treatment: at p. 152. She considered whether persons who have a pre-existing emotional or psychological infirmity must meet the objective test of reasonableness when their refusal of medical help is being assessed by the trier of fact or whether their subjective attributes may be considered: at p. 154. In addressing that question, she made the comment that the respondents rely on, at pp. 159-160 of her reasons:
I believe that Lord Justice Singleton's concern in Marcroft v. Scruttons, supra, stemmed from his doubt as to whether the plaintiff in that case was capable of making a rational decision. Not only that, there was some indication in the medical evidence that his incapacity may have been itself a consequence of the trauma induced by the accident. If this is so, it would appear manifestly unjust to cut off his recovery for failure to mitigate his damages through a rational decision as to treatment. The reasons of Lord Justice Denning are even more baffling. He attributes the plaintiff's traumatic state after the accident to a pre-existing constitutional weakness and says it rendered the plaintiff incapable of making reasonable decisions. Yet he concluded that this was a subjective factor that could not be considered. This would appear to be carrying the objective test too far in that it overrides the "thin skull" principle altogether.
[35] As I read this passage, Wilson J. is discussing the application of the reasonableness test and critiquing how it has been applied in English case law. She is not purporting to make a blanket statement that, as a matter of law, any plaintiff who is incapacitated as a result of the tortious act is absolved of any obligation to mitigate his or her damages.
[36] Moreover, Wilson J. states very clearly that the reasonableness question is a matter for the trier of fact. At p. 151, she notes that the reasonableness of the refusal to accept the recommended medical treatment is "most appropriately left to the trier of fact to decide". And, again at p. 172, she reiterates that "[t]he case law makes it clear that the question of whether a refusal of treatment is reasonable or not is for the trier of fact".
[37] As Wilson J. concludes, the question of the reasonableness of a plaintiff's refusal of medical treatment recommendations is therefore best made by the trier of fact because it can appreciate the evidence first hand: Janiak, at pp. 151, 172. See, also, Engel, at p. 316; Brain v. Mador, [1985] O.J. No. 119, 32 C.C.L.T. 157 (Ont. C.A.), at pp. 166-167 C.C.L.T.
[38] As a result, I am of the view that the trial judge erred in the present case by removing the mitigation question from the jury as a matter of law on the basis that Ms. Little lacked the capacity to mitigate.
(c) Effect of the Trial Judge's Error
[39] This court's authority to order a new trial or re-assess damages in appropriate circumstances comes from s. 134(1) of the Courts of Justice Act, which allows this court to (a) make any order or decision that ought to or could have been made by the court or tribunal appealed from; (b) order a new trial; or (c) make any other order or decision that is considered just.
[40] With respect to ordering a new trial, s. 134(6) cautions that an appellate court "shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred".
[41] The provisions of s. 134(6) highlight a stringent standard that reflects "the underlying policy that new trials ordinarily are contrary to the public interest": FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 56, at para. 17. Because of the increased and wasted costs and delay caused by new trials; they should not be ordered unless plainly required by the interests of justice: FL Receivables Trust 2002-A, at para. 17. No substantial wrong or miscarriage of justice can have occurred if the error would not have made any difference to the outcome of the trial: Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, 2008 ONCA 463, 90 O.R. (3d) 561, at paras. 38-39, leave to appeal refused, [2008] S.C.C.A. No. 394; FL Receivables Trust 2002-A, at para. 22.
[42] In my view, the appellant has not met this stringent standard. In the absence of medical expert evidence that Ms. Little's prognosis of disability would have improved and her damages would otherwise have been reduced had she obtained the recommended treatment, the trial outcome would not have changed.
[43] As explained in Chiu v. Chiu, 8 B.C.L.R. (4th) 227, 2002 BCCA 618, at para. 57, in a personal injury case, the onus is on the defendant to prove two things: (1) that the plaintiff acted unreasonably in not following the recommended treatment; and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he or she acted reasonably. To discharge this onus, the defendant must point to the necessary evidence "to raise failure to mitigate from speculation to reasonable inference": Chiu, at para. 66.
[44] According to the appellant, if the jury had been allowed to consider the mitigation issue, the jury could have found that if more reasonable steps had been taken after December 2015, Ms. Little could have received psychiatric treatment in the two years prior to trial and would therefore have reduced her damages, especially as both Dr. Sayed Mostafa Amir Shourideh-Ziabari (Ms. Little's family doctor) and Dr. Anthony Feinstein (Ms. Little's main psychiatric expert at trial) opined that Ms. Little's problems were predominantly psychological.
[45] I do not accept these submissions.
[46] In the present case, if the issue of mitigation had been put to the jury, the appellant would not have discharged its onus of establishing that there was a likelihood that the proposed treatment, if received in the two short years between Ms. Little's failed suicide attempt in December 2015 and the trial in November/December 2017, would have been substantially successful in eliminating or diminishing her prognosis of disability: Ksiazek v. Newport Leasing Ltd., 43 C.C.L.I. (4th) 238 (Ont. S.C.), at para. 105, aff'd 2010 ONCA 341, 84 C.C.L.I. (4th) 182. Specifically, there was no medical expert evidence that any delay in obtaining psychiatric treatment for Ms. Little or the failure to apply for admission to a group home would have made any material difference to her prognosis that she was incapable of living independently or becoming financially self-sufficient.
[47] The medical expert evidence at trial suggested that a psychiatrist would be able to help alleviate some of Ms. Little's anxiety, depression, concentration issues, and further help manage her prescription medication, and that living in a group home would provide a safe, secure therapeutic environment away from tensions that had developed in her home. However, none of the medical experts testified that regularly seeing a psychiatrist or being admitted into a group home would have changed Ms. Little's prognosis of disability.
[48] The only evidence that suggests psychiatric care may have assisted Ms. Little's prognosis came from Shauna Brown, who was qualified as an expert to give opinion evidence on life care planning, future care costs and vocational rehabilitation. Some of her testimony proposes that had Ms. Little received immediate psychiatric care in the form of hospitalization, she could have assimilated back into the community and "may be able to live independently". In my view, Ms. Brown's evidence is speculative on this issue because it was inconclusive and exceeded the scope of her expertise: since she is not a doctor, she was not qualified to offer an opinion on Ms. Little's medical and psychiatric prognosis.
[49] It must be recalled that multiple medical experts emphasized that Ms. Little's case was complicated by myriad factors and that many of Ms. Little's conditions were interconnected. Moreover, Ms. Little was participating in multiple treatments recommended to improve her psychological problems. Although Ms. Little did not have a regular psychiatrist, she had received psychiatric treatment since her accident. She was on a waiting list to see a psychiatrist to whom she was referred by her family doctor. She took part in other forms of treatment that also served to alleviate her psychological symptoms. Ms. Little was seeing a rehabilitation support worker four times a week, participated in both dog and horse therapy, and received massage therapy. Ms. Little's family doctor was also managing her psychotropic prescription medications. In this factual context, it is not therefore surprising that none of the medical experts opined that any delay in obtaining further psychiatric treatment or residence in a group home would have materially affected Ms. Little's situation.
[50] From a practical point of view, it is also important to note that there were long waiting lists for psychiatric treatment in the area where Ms. Little resided. As a result, even if Ms. Little had immediately put her name on a waiting list, it is unlikely she would have received any of the recommended treatment before trial.
[51] Again, the appellant had the onus of proving a failure on the part of Ms. Little to mitigate her damages. This onus is not a light one. The appellant had to establish, on a balance of probabilities, that Ms. Little acted unreasonably in failing to take steps to mitigate her damages. See Janiak, at pp. 163-166; Branco v. Allianz Insurance Co. of Canada, [2006] O.J. No. 2391, 40 C.C.L.I. (4th) 277 (Ont. S.C.), at para. 20. Merely suggesting that Ms. Little should have taken some other course of action is insufficient to meet this standard and criticism of a plaintiff's conduct must be viewed with caution. Instead, the appellant was required to bring forward reasoned and factually based evidence: Branco, at para. 21. In my view, it failed to do so.
[52] In conclusion, I am satisfied that no miscarriage of justice occurred from the trial judge's error in failing to put the mitigation issue to the jury in the light of the fact there was no medical expert evidence that any delay in obtaining further psychiatric treatment or residence in a group home would have changed Ms. Little's prognosis of disability or reduced her damages. The appellant has failed to meet its onus to prove Ms. Little failed to mitigate her damages.
[53] I would therefore reject this ground of appeal.
(iii) Deduction of Past Statutory Accident Benefits
[54] The appellant submits that the trial judge erred in failing to deduct Ms. Little's past statutory accident benefits from her award of damages in accordance with the mandatory provisions of s. 267.8(4) and (8) of the Insurance Act.
[55] Sections 267.8(4) and (8) read as follows:
267.8(4) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for expenses that have been incurred or will be incurred for health care shall be reduced by the following amounts:
All payments in respect of the incident that the plaintiff has received or that were available before the trial of the action for statutory accident benefits in respect of the expenses for health care.
All payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.
(8) The reductions required by subsections (1), (4) and (6) shall be made after any apportionment of damages required by section 3 of the Negligence Act.
[56] While the reductions are mandatory, it is common ground that the parties may agree that they not be applied.
[57] The appellant submits that through inadvertence, defence trial counsel failed to note this omission in the formal judgment. It was only when appellate counsel reviewed the file that this omission came to light. In support of this position, the appellant seeks to file as fresh evidence the affidavit of its trial counsel explaining his inadvertence. In response, the respondents seek to file as fresh evidence an affidavit from the respondents' trial counsel in which he deposes that counsel agreed that past statutory accident benefits would not be deducted because past damages would not be claimed by Ms. Little. The appellant's trial counsel denies that any such agreement was reached.
[58] While I would admit the fresh evidence on appeal, in my view, this is not an issue that this court can determine. The parties' respective versions of events are diametrically opposed. These respective versions of events are brought to this court primarily in the form of sworn affidavits. There is no written record of any agreement. The determination of this issue would therefore require this court to make findings of credibility, which, in my view, is not appropriate for an appellate court to undertake in these circumstances.
[59] As a result, I would remit this issue for determination by another judge of the Superior Court of Justice since the trial judge has now retired.
D. Disposition
[60] For these reasons, I would allow the appeal in part and remit for hearing to a judge of the Superior Court of Justice the issue of the deduction of past statutory accident benefits. I would otherwise dismiss the appeal.
[61] The respondents were largely successful on this appeal. I would award them their partial indemnity costs of the appeal in the amount of $30,000, inclusive of disbursements and applicable taxes.
Appeal allowed in part.
End of Document