COURT FILE NO.: 00-CV-188326

DIVISIONAL COURT FILE NO.: DC-04-000246-00

DATE: 20060608

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GRAVELY, WILSON and SWINTON JJ.

B E T W E E N:

MARIA BRANCO, MARIO OLIVEIRA, RAQUEL OLIVEIRA and JOSHUA OLIVEIRA by their litigation guardian Maria Branco

Plaintiffs (Appellants)

• and -

ALEXANDER EPHSTEIN

Respondent (Defendant)

Kevin Doan, for the Plaintiffs (Appellants)

Donald G. Martin, for the Respondent (Defendant)

HEARD at Toronto: March 28, 2006

WILSON J.:

1The plaintiffs/appellants brought an action against the defendant arising from an automobile accident. After an eight-day trial on April 7, 2004, Justice Wilton-Siegel entered a judgment in accordance with the verdict of the jury in favour of the plaintiffs for $750.00. Subsequently he made an order for costs.

2The plaintiffs/appellants are Maria Branco (the “plaintiff”), her husband and her children. They appeal from the judgment with respect to damages and the costs order.

3Mitigation was an important issue in the trial, relevant to the claims of past and future income loss.

4The learned trial judge in his charge failed to confirm that although the plaintiff has a duty to mitigate, the defendant bore the onus of proof that the plaintiff failed to take adequate steps by way of mitigation in accordance with the principles enunciated in the case law. The omission in essence shifted the burden of proof to the plaintiff to prove that she took adequate steps to mitigate.

5The law of mitigation confirms that the onus is upon the defendant to prove that the plaintiff failed to meet her duty to mitigate. The defendant must call evidence of the steps that the plaintiff might have pursued to avert loss, the reasonableness of pursuing those steps, and the extent to which loss would thereby have been averted had those steps been taken. There is no dispute that the onus, and the elements required to meet the onus, were not explained to the jury.

6The plaintiff alleges that the omission in the charge to the jury caused a substantive wrong or a miscarriage of justice. The charge, considered in the context of the trial as a whole, did not clearly outline for the jury the issues of fact, the relevant legal principles, how the facts related to the law, or the positions of the parties relevant to damages.

7With great reluctance, after carefully reviewing the transcripts, and considering the law of mitigation and the test for appellate review, we conclude that the jury would not have understood its task, and therefore the assessment of damages of the plaintiff should be re-heard in a new trial.

8The plaintiff raises various other grounds of appeal that we conclude do not have merit.

9There is no appeal from the jury’s finding that the plaintiff and the defendant are equally responsible for causing the accident.

10The defendant brought a threshold motion under s. 267.5(5) of the Insurance Act. The trial judge concluded that the plaintiff had suffered a serious impairment of an important physical function, which had substantially interfered with her ability to continue her employment as a dental assistant. No appeal was initiated with respect to this decision.

THE ISSUE

11We all agree that the learned trial judge erred in the instructions given with respect to mitigation.

12The more difficult issue in this case is assessing the impact of this omission in law and whether the error caused a substantial wrong or miscarriage of justice requiring a new trial on the question of damages.

THE LAW OF MITIGATION

13The root case dealing with the principles of mitigation is Janiak v. Ippolito, 1985 62 (SCC), [1985] 1 S.C.R. 146. Wilson J. confirmed, at para. 32: “While a plaintiff has the burden of proving both the fact that he has suffered damage and the quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss”.

14The following excerpt is from para. 33 of the decision. The Court cites and adopts the reasoning of Walters, J. in the Australian decision in Buczynski v. McDonald (1971), 1 S.A.S.R. 569 at page 573 with respect to the principles of mitigation:

I turn now to the question whether the plaintiff has done all that he could reasonably have done to alleviate his condition of compensation neurosis. The principle to be applied with respect to the mitigation of damages in [page164] the case of tort is clear. The plaintiff is "bound to act not only in his own interests, but in the interests of the party who would have to pay damages, and keep down the damages, so far as it is reasonable and proper, by acting reasonably in the matter" (Smailes & Sons v. Hans Dessen & Co. ((1905) 94 L.T. 492; on appeal (1906) 95 L.T. 809), per Channel J. at p. 493. And as Mayo J. said in Fishlock v. Plummer ([1950] S.A.S.R. 176, at p. 181): "If any part of his (the plaintiff's) damage was sustained by reason of his own negligent or unreasonable behaviour, the plaintiff will not be recouped as to that part." However"the question what is reasonable for the plaintiff to do in mitigation of damages is not a question of law, but one of fact in the circumstances of each particular case, the burden of proof being upon the defendant" (Halsbury's Laws of England, 3rd ed. vol. 11, par. 477, p. 290). The authorities show that once the plaintiff has "made out a prima facie case of damages, actual or prospective, to a given amount", the burden lies upon the defendant to prove circumstances whereby the loss could have been diminished. Not only must the defendant discharge the onus of showing that the plaintiff could have mitigated his loss if he had reacted reasonably, but he must also show how and to what extent that loss could have been minimized (Roper v. Johnson ((1873) L.R. 8 C.P. 167), per Grove J. at p. 184: Criss v. Alexander (No. 2) ((1928) 28 S.R. (N.S.W.) 587; 45 W.N. 187), per Street C.J. at p. 596)

[emphasis added]

15The principles of Janiak have been followed in other Supreme Court of Canada decisions including Engel v. Salyn, 1993 152 (SCC), [1993] 1 S.C.R. 306 and H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] S.C.J. No. 24, at paras. 134-136.

16Mitigation efforts can relate to the plaintiff’s pursuit of recommended treatment (which is not in issue in this case) or the plaintiff’s failure to take steps to mitigate a financial loss, which is in issue.

17H.L. v. Canada (Attorney General) deals with the latter aspect of mitigation, relevant to this case. Fish J., for the majority, confirmed the following principles, at paras. 134 - 136:

The onus rests on the defendant to prove that the plaintiff failed to mitigate his loss: Janiak v. Ippolito, 1985 62 (SCC), [1985] 1 S.C.R. 146, at p. 163. Here, the trial judge concluded that the Crown led no evidence on the issue of mitigation. The Court of Appeal pointed to H.L.'s failure to upgrade his education and training as well as his failure to enter rehabilitation as evidence that he failed to mitigate his loss.

Since the evidence as to H.L.'s mitigation of his damages was inconclusive at best, Canada's burden had not been discharged. The Court of Appeal therefore erred in reversing the trial judge's finding on this issue.

[emphasis added]

18The law with respect to mitigation, reflected in these cases, is succinctly summarized in Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996) at 862 - 892. The plaintiff’s duty to mitigate in order to successfully pursue the defendant for a loss is outlined at page 863 as the “duty to minimize the damage”. The author cites the explanation provided by Pearson L.J. in Darbishire v. Warran, [1963] 3 All E.R. 310 at 315 (C.A.):

The true meaning is that the plaintiff is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. In short, he is fully entitled to be as extravagant as he pleases, but not at the expense of the defendant.

19Mitigation is ultimately a question of fact to be determined by the jury. However, the trier of fact must consider and apply principles of law defining the onus upon the defendant to assess the reasonableness of the plaintiff’s conduct.

20Professor Cooper-Stephenson, citing the Australian case of Buczynski, supra, which was adopted in Janiak, states at page 868 that the defendant bears the onus of proving that the plaintiff has failed to mitigate. To successfully challenge the plaintiff’s evidence of mitigation, the defence bears the onus of establishing three things:

(1) the steps which the plaintiff might have pursued to avert loss;

(2) the reasonableness of pursuing those steps; and

(3) the extent to which loss would thereby have been averted (in effect, the amount by which the damages should be reduced).

21The defence must bring forward reasoned, factually based evidence to illustrate that the plaintiff failed to mitigate, addressing the elements in this three-part test.

22The onus upon the defendant with respect to mitigation makes practical good sense in the context of insurance claims and litigation. The competing interests of the insured and the insurer are balanced by the duty upon the plaintiff to mitigate and the corresponding onus upon the defendant to prove that the plaintiff failed to fulfil the duty.

23In accordance with the standard Ontario civil jury charge, the learned trial judge confirmed the principles of the plaintiff’s duty to mitigate, but the onus upon the defendant and the applicable principles of law to show that the plaintiff did not fulfill her duty were not explained.

24We note that the precedent jury charge in British Columbia for civil jury trials correctly outlines the law with respect to mitigation, including the duty upon the plaintiff, and the onus upon the defendant. The sample jury charge is attached as “Schedule A”.

TEST FOR APPELLATE REVIEW

25Not all errors in a civil charge to the jury will justify an order for a new trial.

26In civil cases, compared to criminal cases, a practical, robust approach is taken by the Ontario Court of Appeal in providing guidance with respect to appellate intervention. Two recent decisions are helpful in assessing the impact of the error made: Caza v. Kirkland and District Hospital, 2003 39169 (ON CA), [2003] O.J. No. 2438 (C.A.) and Pereira v. Hamilton Township Farmers’ Mutual Insurance Company, 2006 12284 (ON CA), [2006] O.J. No. 1508 (C.A.).

27In determining whether the trial has been fair, an appeal court should look at the charge in the context of the entire trial and ask if the jurors would have understood their task. In Caza, supra, O’Connor A.C.J.O. confirmed the relevant test for appellate intervention (at para. 34):

A new trial in a civil jury case should not be ordered unless the interest of justice plainly requires that to be done. See Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722 (C.A.); Mizzi v. Hopkins, 2003 52145 (ON CA), [2003] O.J. No. 1671 (C.A.). Not all errors made by a trial judge in charging a jury will lead to a new trial. The question is whether the errors, which may include omissions, deprived the party of a fair trial. In determining whether the trial has been fair, an appeal court should look at the charge in the context of the entire trial and ask if the jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law and the positions of the parties. A new trial will only be ordered when the appeal court is satisfied that the trial judge’s errors have caused a substantial wrong or miscarriage of justice.

[emphasis added]

28O’Connor A.C.J.O. found that on the circumstances of that case, any factual misstatements were minor, and with respect to the misstatement of a legal issue in question that “read as a whole, the charge fairly set out the law on causation”.

29The test for appellate intervention has also been stated by the Court of Appeal as a double negative in Fink v. McMaster (1987), 1987 4360 (ON CA), 58 O.R. (2d) 401 (C.A.) at 404: “We are satisfied the trial judge was in error in this part of his charge and we are not satisfied that the error did not occasion any substantial wrong or miscarriage of justice.”

30Most recently, in Pereira, supra, the Court of Appeal reviewed what circumstances justify a new trial if there are errors in the charge. The reviewing court will not hold the jury instructions to a standard of perfection: “The reviewing court is concerned less with whether the law was perfectly stated and more with whether the jury would have properly understood the law at the end of the charge” (at para. 51).

31The Court went on, at paras. 75-76, to explain that a substantial wrong may include a misapprehension of the applicable law, that the charge was materially deficient, or that the law was not clearly outlined on a crucial issue:

To obtain a new trial, it will generally not be sufficient for an appellant to demonstrate simply that it was open to the jury on the evidence to reach a different result. Something more than that is required. An appellant may demonstrate that the case was not fairly put to the jury, as, for example, where the charge leaves the jury with a misapprehension as to the applicable legal principles: Brochu v. Pond (2002), 2002 20883 (ON CA), 62 O.R. (3d) 722 (C.A.).

An appellant may also show that the charge was “materially deficient” (Brochu, supra at para. 68) or that the law was not clearly stated on a critical issue: see Mizzi v. Hopkins (2003), 2003 52145 (ON CA), 64 O.R. (3d) 365 at para. 42 (C.A.). This follows from the trial judge’s duty to provide the jury with a clear and complete explanation of the law sufficient to allow the jury to discharge its responsibility as judge of the facts.

THE FACTS

The Plaintiff’s Injury

32The accident occurred on April 13, 1999, in rush hour traffic at the intersection of Yonge Street and Hendon Avenue. The plaintiff was taken to Sunnybrook Hospital after the accident.

33Counsel for the defence conceded that the automobile accident was the proximate cause of the plaintiff’s injuries. There was no issue therefore with respect to causation.

34The plaintiff initially experienced severe pain in the head, lower back, leg and right shoulder.

35Her treating physician referred her to rehabilitation for physiotherapy and chiropractic treatments. She participated in these recommended frequent treatments from April to October 1999.

36In July 1999, the plaintiff was referred to St. John’s Rehabilitation Hospital due to concerns about a possible frozen shoulder. She participated in intensive treatment from July to September 1999, lasting approximately three to four hours per day, every other day.

37The plaintiff testified at trial that most of her physical problems had resolved one year after the accident, with the exception of her right shoulder and arm.

38She continued active treatment from October 1999 to August 2000, consisting of physiotherapy, and chiropractic and massage therapy treatments twice a week. This therapy was primarily focussed on the ongoing difficulties with her right shoulder and arm.

39In September 2000, the plaintiff received a cortisone injection in her right shoulder.

40The defendant did not challenge the plaintiff’s efforts to mitigate her injuries with respect to making all reasonable efforts to pursue and participate fully in appropriate rehabilitation.

The Plaintiff’s Employment and Personal History

41Defence counsel did, however, challenge the extent of the plaintiff’s ongoing injuries, and the impact her injuries had upon her employment.

42At the time of the accident the plaintiff was thirty-two years of age and married with two children.

43The plaintiff began working at the age of fourteen as a seamstress when she was still in school. She had purchased her first home at the age of twenty-four.

44The plaintiff had trained to be a dental assistant. She was also trained in electrolysis and aesthetics.

45Prior to the accident the plaintiff had worked as a dental assistant for eighteen years with a pause in her employment after the birth of her children. The plaintiff had worked for her current employer for several years before the accident. The plaintiff testified that she loved her work and her independence. In addition, prior to the accident the plaintiff worked on the weekend for additional cash doing electrolysis. Electrolysis involves fine motor skills including the insertion of a fine needle into hair follicles.

46In 1999, she twice attempted to return to work with her former employer as a dental assistant. She testified that she wanted to return to work, and the employer testified that he wanted her back. The plaintiff found that she was unable to perform her former tasks on any sort of reasonable sustained basis as required, due to continued difficulties with her right arm and shoulder. She also had concerns that if she had one of her periodic episodes of pain and numbness while she was working with a patient, she could cause the patient injury.

47After completing the various recommended active treatments, and after the cortisone injection, the plaintiff started working part-time for the Toronto District School Board in September 2000, performing such jobs as emergency supply teaching, lunchroom supervising and clerical work.

48It does not appear that the plaintiff pursued, nor did the defence offer her, any sort of vocational assessment or alternate training. The plaintiff was not computer literate and was not interested in secretarial work. She wanted to work with people, and expressed a desire to work perhaps with geriatric patients.

49Two significant events occurred in or around 2001. First, the plaintiff’s mother, who was living with the plaintiff and her family, became ill and subsequently died. The plaintiff cared for her mother during her illness. The plaintiff did not claim for loss of income during this time.

50Second, in November 2001, she gave birth to her unplanned third child. After the birth of the child, the plaintiff experienced physical problems caring for the child due to problems with her right shoulder and arm. This was confirmed by the evidence of an occupational therapist who treated her and provided her with suggestions for coping in 2002. The plaintiff decided to stay at home to look after the child until he was old enough to go to the daycare attended by the other children. The plaintiff did not work for two years after the birth of this child, and she did not claim for any loss of income during the period between 2002 and 2003.

51She did not return to work until the beginning of 2004, when she continued working for the school board in various part-time capacities.

52The plaintiff projected her future loss of income as the difference between her expected earnings as a full time dental assistant, and her projected earnings with the school board.

53A central issue at the trial was whether the plaintiff’s injuries prevented her from continuing her work as a dental assistant.

54The plaintiff asserted that in spite of her desire to return to her former employment, she was unable to continue to perform the tasks required of a dental assistant due to continued problems with her right shoulder and arm. It was the plaintiff’s position that she was unable to return to her work as a dental assistant. She was unable to return to any sort of work until the fall of 2000, after the cortisone injection to the shoulder, at which time she began the part-time work with the school board.

55The defendant asserted that she was able to continue her work as a dental assistant or other comparable work from around October 1999, approximately six months after the accident. The defendant suggested that the appropriate award for past loss of income was $12,000 to $23,000 (6 months).

56The defendant further submitted that if the plaintiff was unable to continue to work as a dental assistant, the plaintiff had failed to make adequate efforts to mitigate her loss of income from employment by pursuing alternate employment. The issue arose of what work the plaintiff was capable of performing, given her age, background and training.

The Expert Evidence at Trial

57At the trial, the plaintiff called four expert witnesses. They included two occupational therapists, her family doctor and Dr. Kachooie, a physiatrist who examined the plaintiff in September 2003.

58The defendant called Dr. J. Zeldin. He had performed an assessment upon the plaintiff in August 1999 at the request of the no fault insurer. The defence also called Dr. H. Cameron, orthopaedic surgeon, who conducted a defence medical examination upon the plaintiff in February 2003.

59I will briefly review the substance of the evidence of the various expert witnesses called on behalf of both parties in chronological order of their contact with the plaintiff.

60Ms. Chin, an occupational therapist, examined the plaintiff at the request of the no-fault insurer. She did a functional analysis of the work as a dental assistant and concluded in her report dated October 6, 1999, that Ms. Branco’s ability did not meet the work requirements of a dental assistant at that time.

61Dr. Zeldin examined the plaintiff on August 31, 1999 at the request of the no-fault insurer. He saw her on one occasion. At the trial he had no present memory of the meeting. He relied upon his notes and report. Dr. Zeldin concluded that the plaintiff was disabled from working as a dental assistant at the time of his assessment but predicted that she could go back to work in a few weeks “if all went smoothly.”

62The plaintiff’s family doctor at the time of the accident, Dr. Samual, did not testify. His medical file was filed as an exhibit.

63In December 2000, the plaintiff began seeing Dr. Vo as her family doctor. He was involved in the prenatal, birth and postnatal care of the plaintiff’s third child, born in November 2001. On six of the eighteen visits, the plaintiff complained of ongoing symptoms in relation to the accident, between December 2000 and May 2003. In December 2000 she described pain, but had a full range of motion. In February 2003 she described “sharp burning pain that occasionally radiate through the front of her chest and she report weakness due to the numbness and tingling when she use the arm” (Transcript, page 232). In May 2003, she continued to describe right shoulder pain, numbness and radiation to the right hand. Dr. Vo recommended referral to a neurologist, but it is not clear from the transcript whether that suggestion was pursued.

64In November 2001, the plaintiff’s third child was born. In February 2002 Mr. Milantoni, an occupational therapist, attended periodically for several weeks to assist the plaintiff with difficulties she was having caring for her baby, given the ongoing difficulties with her right shoulder, arm and hand. This was a treatment referral from the home care program offered by the Ministry of Health, and was not linked to the litigation. The records confirm that she had “right shoulder pain and lower back pain as a result of the motor vehicle accident”. He confirmed that she had a “sensitive nerve point at the lower angle of the right scapula that caused numbness and tingling down her right hand, thumb and index finger… She was desperate to find something that worked”. She did not want to take serious medications. “She was I would say grasping at straws in terms of looking for some kind of relief”. The witness opined that the plaintiff did obtain some relief as a result of his intervention, and that she was going to see a physician for referral to physiotherapy. It is not clear from the transcripts whether that referral took place.

65Dr. Cameron examined the plaintiff on one occasion as a defence expert, on February 28, 2003. Dr. Cameron concluded that the plaintiff’s complaints were genuine based on the results of tests that he performed, which screened for false complaints. He accepted that the plaintiff had a permanent condition regarding her right shoulder. The plaintiff reported to him that she had pain. Dr. Cameron did not ask the plaintiff about the frequency or severity of the pain. He simply recorded in his notes the presence of pain.

66Dr. Cameron testified that the plaintiff initially received appropriate treatment, but then opined that much of her latter treatment was “rubbish” and that the plaintiff in his view had been “maltreated over the years” and “has been sucked in by the medical/legal mafia” (Transcript, page 648). He recommended that she do Pilates, as he recommends this for all of his female patients. Dr. Cameron did confirm that the plaintiff had “tried her best” and that she had a “motivated nature and wanted to get better”.

67Dr. Cameron strongly disagreed with both the diagnosis and conclusions reached by Dr. Kachooie (discussed below) with respect to the extent of the injury, and the impact the injury would have on the plaintiff’s ability to work, as either a dental assistant, or in another capacity. He concluded that the plaintiff’s condition, although permanent, was only a nuisance, and would not interfere with her ability to work as a dental assistant.

68Dr. Cameron opined that “everyone” knew the occupational requirements of a dental hygienist, if they had been to a dentist. He gave the opinion that the plaintiff could return to her former employment.

69The plaintiff testified that Dr. Cameron told her during his examination that she may need surgery in ten years. Dr. Cameron denied that he had said this.

70Dr. Pearlstein, the plaintiff’s employer at the time of the accident, confirmed that it would be difficult to modify the duties of a dental assistant. Speed in preparation of various mixtures is necessary before the compounds harden, and it is necessary for a dental assistant to remain in sustained body positions for approximately 80% of the working day.

71Dr. Kachooie examined the plaintiff on September 25, 2003 at the request of the plaintiff. He concluded that the plaintiff had a permanent disability preventing her from continuing her work as a dental assistant.

The Jury’s Findings

72The jury assessed liability and damages in the action as follows:

Liability: 50% to Epshtein – 50% to Branco

Branco’s Pain and Suffering: $16,500.00

Branco’s Past Income Loss: $15,000.00

Branco’s Future Income Loss: $0

FLA: Mario Oliviera: $1,000.00

Joshua Oliveira $ 500.00

Raquel Oliveira $ 500.00

The Threshold Motion

73In the threshold motion, the trial judge concluded on a balance of probabilities that the plaintiff had suffered a serious impairment of an important physical function, which had substantially interfered with her ability to continue her employment as a dental assistant.

74The defence conceded in the threshold motion that the plaintiff’s injuries were permanent and important, but asserted that the injuries were not serious.

75The issue of seriousness on the threshold motion focused upon whether the plaintiff was able to return to her former employment as a dental assistant.

76This decision on the threshold motion has not been challenged on appeal, but some of the trial judge’s comments provide useful context. The learned trial judge concluded that the plaintiff was unable to return to her former employment as a dental assistant, and that therefore the threshold was met. He stated:

On the basis of the foregoing, I am satisfied on a balance of probabilities that the continuing episodes of intense pain, together with the limitations in the use of her right hand, prevent the plaintiff’s return to work for several reasons. …

77He accepted the evidence of Dr. Kachooie, called by the plaintiff, and discounted the evidence of Doctors Cameron and Zeldin, called on behalf of the defence.

[32] In addition, Dr. Kachooie was of the opinion that the plaintiff was totally unable to perform the physical demands of a dental assistant based on his assessment of her chronic pain and the resulting functional limitations. In his opinion, her major disability related to her neck and cervical spine as well as her right shoulder. He also described the plaintiff as “significantly impaired” in the use of her right hand.

[34] I would add that in reaching this conclusion, I have found Dr. Cameron’s testimony to be of limited assistance for the following reasons. First, Dr. Cameron exhibited only a very general understanding of the physical demands of the position of a dental assistant confusing it with that of a dental hygienist. Second, Dr. Cameron’s testimony was directed more towards the issue of permanence of the impairment, which he doubted, than towards the issue of disability. I think this influenced his view of whether the plaintiff was disabled. As mentioned above, for the purposes of this motion, the defendant accepted that the plaintiff’s impairment was permanent.

[35] In addition, I have also given little weight to Dr. Zeldin’s evidence with respect to the plaintiff’s ability to perform her essential duties as a dental assistant. While Dr. Zeldin predicted resolution of the plaintiff’s neck and shoulder problem within a few weeks of his examination, he has had no contact with the plaintiff since that examination, which took place on August 31, 1999. In addition, at trial Dr. Zeldin exhibited only a general understanding of the physical requirements of a dental assistant.

The Charge to the Jury

78The charge did not correctly outline to the jury the law with respect to mitigation of damages, which was a significant issue in the facts of this case.

79The learned trial judge emphasised on several occasions the importance of the burden of proof, and indicated that it would be explained as each issue arose. He did so in a careful manner on the other issues, but not with respect to mitigation.

80The issue of mitigation of damages was not canvassed when the trial judge outlined the principles relevant to assessing the future loss of income. The comments with respect to mitigation were primarily canvassed with respect to the issue of the plaintiff’s ability to enjoy the normal amenities of life.

81The relevant excerpts with respect to the burden of proof in general, and mitigation contained in the charge to the jury are attached and marked “Schedule B”.

82Once an error is established, in accordance with the principles enunciated in the two recent Court of Appeal decisions in Caza, supra and Pereira, supra, the seriousness of the error identified must be reviewed in the context of the trial as a whole, and the charge as a whole. We must ask whether the jury would have understood the issues of fact that they were to determine, the relevant legal principles, how the facts related to the law and the positions of the parties.

83To succeed, the plaintiff must prove not simply that the result may have been different, but that the case was not fairly put to the jury. Borins, J. in Pereira, supra gives three alternative scenarios, which may justify intervention by an appellate court. Firstly, if the charge leaves the jury with a misapprehension of the applicable legal principles, or second, if the plaintiff may illustrates that the charge was materially deficient, or thirdly, that the law was not clearly stated on a critical issue.

84When considering the impact of the error in the context of the trial as a whole, the closing jury addresses by counsel are a relevant factor, since they may assist jurors in their understanding of a case by drawing their attention to important legal and factual considerations.

85Jury addresses by counsel are often colourful, designed to appeal to emotion, rather than a rational impartial review of the facts. This case was no exception.

86In the closing address to the jury, counsel for the defendant essentially submitted to the jurors that the plaintiff was not credible and that she was dishonest. She had not reported her weekend income from doing electrolysis in her tax returns, and on the advice of her husband’s accountant, she had done some income splitting while she was not working. The defence asserted that the plaintiff was looking for a job that was “fun”. The tone and the content of the jury address was an attack upon the plaintiff’s integrity.

87Nowhere, with respect to the issue of mitigation, did defence counsel canvass the steps which the plaintiff may have pursued to avert loss, the reasonableness of pursuing those steps, and the extent to which loss would thereby have been averted. The submissions do not canvass the factually based, reasoned approach contemplated by the caselaw.

88It is not disputed based upon a review of the transcripts and the evidence of witnesses called on behalf of the plaintiff and the defendant confirm that the plaintiff was a cooperative patient, following through on all treatment recommendations, and that she was motivated to get better. Prior to the accident she had a stable and lengthy work history.

89Further context is provided by considering the results of the threshold motion. We note that the conclusions of the learned trial judge in the threshold motion, and the conclusions apparently reached by the jury with respect to the plaintiff’s ability to continue working as a dental assistant do not accord. This inconsistency is not conclusive, as the threshold motion has a different function from the fact-finding function of the jury. It is, however, a relevant factor to consider when assessing the issue of potential confusion by members of the jury and potential miscarriage of justice.

90The trial judge, before giving his jury address, confirmed in discussions with counsel that he did not intend to dwell on the facts in any detail, as there is a “limit to the amount of time that a jury can listen to a charge” (Transcript, page 449). Counsel for the defence specifically invited the learned trial judge not to review the evidence of each witness in detail.

91After this eight-day trial involving considerable medical evidence, the review of the facts by the learned trial judge was sparse. The relevant evidence, including the medical evidence, with respect to the extent of the plaintiff’s injuries and mitigation efforts was not summarised in any comprehensive way, linking the facts and the to the disputed issues that the jury had to decide. The instructions with respect to future loss of income and discount rates were lengthy, and difficult to understand

CONCLUSIONS WITH RESPECT TO THE IMPACT OF THE ERROR

92The error with respect to mitigation was a significant one on a critical legal issue.

93In several personal injury cases involving a jury trial, courts have recognized the importance of properly explaining issues of onus of proof. A new trial has often been ordered based on errors with respect to onus of proof in a jury charge: see, for example, Wilkinson v. Shapiro, 1944 10 (SCC), [1944] S.C.R. 443 (trial judge failed in jury charge to adequately deal with the statutory onus of proof under the Highway Traffic Act); Curly v. Rusyn, [1970] O.J. No. 192 (C.A.) (trial judge failed to instruct jury that onus of proof as to damages claimed rested on plaintiff); Bennet (Next friend of) v. Visscher, [1977] O.J. No. 1228 (C.A.) (trial judge failed to properly instruct jury on statutory onus of proof); Giurlando (Litigation Guardian of) v. Cammalleri, [1999] O.J. No. 767 (C.A.) (trial judge failed to make clear to jury that onus was on defendants to disprove negligence); Losier v. Smirnov, [2006] O.J. No. 830 (C.A.) (trial judge erred by speaking only of “competing onuses” without explaining much heavier statutory onus on the driver making left hand turn).

94We conclude that a new trial on damages is required. Applying the criteria enunciated by Borins, J. in Pereira, supra it is clear that the charge leaves the jury with a misapprehension of the applicable legal principles, and that the law was not clearly stated on a critical issue.

95There was no saving provision to ensure that the jury understood their task taking into account the jury addresses and the charge a whole. Applying the pragmatic contextual approach outlined in Casa, supra, looking at the charge as a whole, we conclude that the members of the jury would not have understood their task.

96We have read the careful reasons of Swinton J., and respectfully, we disagree with the conclusions reached. It is possible that if correct instructions had been given the result may not have been different. Simply put, we do not know. The jury does not give reasons for the decision reached. Unlike a trial judge, who provides reasons for his or her decision, jurors’ deliberations are conducted in confidence without the benefit of a record, and we have no ability to understand, nor should we second-guess the basis of their reasoning.

97In this case there was evidence supporting the position asserted by both the plaintiff and the defendant. It is obvious, based on the jury’s award, that the jurors adopted the position of the defendant based on the instructions they received. In our view, however, once it is established that the flaw in the charge meets the high threshold test enunciated in Caza, supra, and Pereira, supra, it is not appropriate for an appellate court to attempt to place itself in the position of the jurors to weigh the evidence to determine if there was a basis for the decision reached. Mitigation and damages are intertwined. Evidence may be open to different interpretations. Placing the error in context cannot mean analysing and weighing the evidence.

98For these reasons we conclude that the omissions outlined compromised the fairness of the trial with respect to the crucial issue of damages and mitigation and that therefore in the interests of justice, the issue of the plaintiff’s damages should be reheard in a new trial.

FAILURE TO OBJECT TO THE CHARGE

99The defence points out that plaintiff’s counsel did not object to these omissions after the charge to the jury was given.

100The judge has the responsibility to correctly charge the members of the jury with respect to the law.

101As outlined in Pereira, supra, at para. 76, it is “the trial judge’s duty to provide the jury with a clear and complete explanation of the law sufficient to allow the jury to discharge its responsibility as judge of the facts”.

102Counsel are entitled to presume that the charge to the jury in law will be correct. When there is an error in law in the charge that is significant, and may have resulted in a miscarriage of justice, the failure of counsel to object to the charge in these circumstances is not fatal.

103There is a distinction between a failure of counsel to object on matters of law, and failure to object on matters of fact, or the theory of a party’s case as presented by the trial judge. The latter error would be obvious and would resonate with counsel when the charge is given, as compared to an error in law.

104The Court of Appeal stated in Mizzi v. Hopkins (2003), 2003 52145 (ON CA), 64 O.R. (3d) 365 at para. 50 that where “the faulty instruction bears directly on the jury's central task, the failure by counsel to object cannot save an otherwise objectionable jury instruction.”

105The Court of Appeal recently reiterated this principle, in Pereira, supra, at para. 77:

In this case, trial counsel for the appellant… failed to object to the charge on any of the points now advanced on appeal. This tells strongly against the appellant’s request for a new trial: Marshall v. Watson Wyatt & Co. (2002), 2002 13354 (ON CA), 209 D.L.R. (4th) 411 at para. 15 (Ont. C.A.). However, the failure to object will not be fatal where the error bears directly on the jury’s central task: Mizzi, supra at para. 50.

[emphasis added]

ALTERNATE ARGUMENTS RAISED

106The plaintiff raises several other arguments on this appeal that we conclude are without merit.

107First, plaintiff’s counsel, during his submissions to the jury, sought to read to members of the jury an excerpt from the Supreme Court of Canada decision in Martin v. Nova Scotia (Workers’ Compensation Board) et al., 2003 SCC 54, [2003] 2 S.C.R. 504, dealing with the nature of chronic pain. The learned trial judge correctly cautioned the jury that it should disregard this statement as any sort of binding authority. He was correct in his instructions, and the instructions were not unfair so as to bias the jury in favour of the defence.

108Second, plaintiff’s counsel states that the learned trial judge should have instructed the jury with respect to causation in accordance with the principles in Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458. As the defence acknowledged that the motor vehicle accident was the proximate cause of the plaintiff’s injuries, it was not necessary to instruct the jury with respect to the issue of material contribution and causation with respect to the plaintiff’s damages.

109Finally, the plaintiff seeks leave to appeal from the award of costs granted by the learned trial judge. The plaintiff alleges that the learned trial judge did not ask for dockets to back up the request in the Bill of Costs, and then reduced the amount of the costs awarded due to the absence of dockets.

110In a recent decision, Arbour J. confirmed the principle of deference to the discretionary decision of the trial judge with respect to costs. She said in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27:

A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong (Duong v. NN Life Insurance Company of Canada (2001), 2001 24151 (ON CA), 141 O.A.C. 307, at para. 14).

111Armstrong J.A. in the Court of Appeal decision of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) confirmed the principles outlined by Arbour J. Hamilton v. Open Window Bakery.

112We conclude prima facie, considered as a separate ground for appeal, that there are no valid grounds for intervening with respect to the award of costs made by the learned trial judge. However, given our decision that the question of damages must be reheard, the issue of costs needs also to be addressed.

113With respect to liability, the jury concluded that each party was equally responsible for the accident. That decision is not under appeal. Costs would have been awarded in favour of the plaintiff by the learned trial judge for this aspect of the trial.

114The defence raised a threshold motion, and the learned trial judge, in careful comprehensive reasons, concluded that the threshold had been met. The defence did not appeal from this finding. The defence counsel suggests that if the issue of the assessment of damages is reheard, the threshold question should also be reheard. We disagree. This issue was not raised on appeal, no arguments were made on this issue, and we see no reason to refer this issue back for a rehearing.

115Some significant portion of the costs awarded by the learned trial judge would have been attributed to the issue of liability and to the threshold motion.

116If the parties are unable to agree on a reasonable resolution of this issue, in our view it would be reasonable to remit the issue of costs of the first trial to the judge rehearing the issue of the plaintiff’s damages.

DISPOSITION

117We would therefore allow the appeal with respect to the damages of Maria Branco. A new trial is therefore ordered with respect to her damages. All other grounds of appeal are dismissed.

118If the parties are unable to resolve the issue of costs of this appeal, counsel may submit concise written submissions within 14 days of the release of these reasons.

RELEASED:

GRAVELY J.

WILSON J.

SWINTON J.

SCHEDULE “A” – EXCERPT FROM BRITISH COLUMBIA JURY CHARGE

From: C. L. Smith & J. C. Bouck, CIVJI: Civil Jury Instructions, looseleaf (Vancouver: Continuing Legal Education of British Columbia, 1989) [citations omitted]

CIVJI 6.10

MITIGATION OF DAMAGES BY THE PLAINTIFF

PLAINTIFF REQUIRED TO MITIGATE LOSS

1. In this case the defendant suggests that the plaintiff did not take reasonable steps to mitigate or reduce the loss allegedly suffered as a consequence of the accident, for example, e.g., actively pursue job opportunities; take prescribed medical treatment; etc. When a plaintiff is wronged, he or she is required to act reasonably to mitigate or lessen the loss. No damages are recoverable for any loss that the plaintiff could have avoided through reasonable action.

EXAMPLES

2. In this case you must decide whether e.g. … (he/she) could have pursued job opportunities more actively.

DEFENDANT HAS BURDEN OF PROOF

3. On this issue the burden of proof rests upon the defendant. The defendant must prove on a balance of probabilities that the plaintiff did not act reasonably. Merely suggesting some other course that the plaintiff might have followed is not good enough. Criticism of the plaintiff’s conduct by the defendant must be viewed with caution, as it was the defendant who caused the damages in the first place.

STANDARD OF CONDUCT

4. The plaintiff is not held to a high standard of conduct in mitigation. The law is satisfied if the plaintiff takes steps that a reasonable person would take in the circumstances to reduce the loss.

QUESTION OF FACT

5. Whether the plaintiff did act reasonably to reduce (his/her) damages is a question of fact for you to decide. If the defendant satisfies you that the plaintiff did not act reasonably, you must not award the plaintiff compensation for any losses which could have been avoided had (he/she) acted reasonably to reduce the damages.

SCHEDULE “B” – RELEVANT EXCERPTS FROM JURY CHARGE

At page 769:

BURDEN OF PROOF:

During the course of this charge, I will be referring to the burden of proof, that is what a party must prove to succeed in his or her action or defence. In this case, your verdict will be given in the form of answers to certain questions which I will review with you in some detail later. When I discuss these questions with you, I will indicate on whom the burden of proof lies in respect of each question. When I say that a party has the burden of proof of satisfying you of such and such, this means that he or she must provide his proposition by a preponderance of evidence.

The term preponderance of evidence means such evidence as when considered and compared with that opposed to it persuades you on the balance of probability. In the event that the evidence is evenly balanced so that you are unable to say that the evidence on either side of an issue preponderates, an awful term, then your finding upon that issue must be against the party who has the burden of proving it.

In a criminal trial, the guilt of an accused must be proven beyond a reasonable doubt. That heavy burden does not exist in civil proceedings such as these. It is only necessary in this type of action for the party who has the burden to establish the matter by a preponderance of evidence. If you can say in respect of a particular issue, we think it more probable than not, then the burden of proof has been met.

At page 777:

PART THREE:THE LAW RELATING TO LIABILITY AND A REVIEW OF THE RELEVANT FACTS OF THIS CASE

In this action the plaintiff has the burden of establishing by preponderance of the evidence all of the facts necessary to prove the following issues:

that there was negligence on the part of the defendant;

that the plaintiff was injured or suffered damage;

that the negligence of the defendant was the proximate cause of the plaintiff’s injuries or damages.

At page 786 the trial judge discussed the plaintiff’s duty to mitigate. There was no mention of the defendant’s onus to prove that the plaintiff has failed to mitigate.

I must also mention to you the matter of mitigation of damages which you much consider before arriving at your final figure for damages. It is the duty of the person who has been injured to use reasonable diligence in caring for his or her injuries and reasonable means to prevent their aggravation and to bring about healing. When a person does not use reasonable diligence to care for his or her injuries and they are aggravated as a result of such failure, the liability of the person causing the injury must be limited to the amount of damage that would have been suffered if the injured person has himself experienced the diligence required of him.”

Similarly, it is the duty of a person who has been injured to use reasonable efforts to return to work or to find suitable, comparative, alternative employment as soon as reasonably possible. When a person does not use reasonable efforts to return to work, or to secure suitable, comparable, alternative employment, the liability of the person causing the injury must be limited to the amount of damage, in this case loss of income that would have been suffered if the injured person had himself exercised the diligence required of him.

“In this case, the defendant is not suggesting that the plaintiff failed to use reasonable diligence in caring for her injuries. However, as discussed below, the defendant is suggesting that the plaintiff failed to use reasonable efforts to return to work or to secure a suitable, comparable, alternative employment.”

At page 790 the learned trial judge discussed the issue of the injury as it affects the plaintiff’s work, under the heading of general damages and the ability to enjoy the normal social routine of life.

THE ABILITY TO ENJOY THE NORMAL AMENITIES OF LIFE.

You will consider to what extent the plaintiff is unable and will be unable to enjoy the normal social routine of life which would be enjoyed by a person of her age.

The evidence in this area addressed two matters. You heard evidence about the physical demands placed upon a dental assistant. The plaintiff testified that she was unable to return to her work. She referred specifically to concerns with respect to the strain of maintaining difficult sitting standing postures for projected periods of time; concerns with respect to mixing materials within very tight timing constraints and maintenance of the required manual dexterity.

The plaintiff says that such activities might provoke a flare up of her injuries rendering her unable to continue with a particular patient. Alternatively, the plaintiff says also that if a flare up were to continue in the course of carrying out her duties as a dental assistant, injury to a patient might result.

The defendant’s position is that the plaintiff has been able to return to her work as a dental assistant since September or October, 1999. They say the evidence indicates there was no continuing injury which prevented her from performing the essential tasks of a dental assistant, and no evidence that her injury could pose safety concerns for patients.

The learned trial judge then outlined the principles of special damages with respect to the plaintiff’s claim for past loss of income. He again discussed the plaintiff’s obligation to mitigate, without discussing the onus and legal principles that must be met by the defence.

Special Damages: Special Damages consist of a financial loss which has been sustained by the plaintiff up to this date. In this case the special damages claimed are for loss of earnings. So far as the loss of earnings are concerned, you must assess the amount that you consider the plaintiff might reasonably have earned from the date of the accident, April 13, 1999 to the first day of this trial, a period of approximately five years.

The plaintiff’s position is that she was unable to return to her employment with Dr. Pearlstein as a dental assistant as a result of her injuries. The plaintiff testified that she was off work until late September or early October 2000 when she began working for a local school at the Toronto District School Board in various part-time roles as an Emergency Supply Teacher, a Lunchroom Supervisor and a Clerical Assistant. She stopped working before the birth of her third child on November 20, 2001 and did not return to work until the beginning of this year. Her only employment related income during this period was unemployment insurance for the period of her maternity leave. Since January 1, 2004, she has returned to work as a part-time employee of the Board and has earned approximately $4300 to the date of commencement of this trial.

As I mentioned above, the plaintiff is under an obligation to mitigate or take reasonable steps to minimize her loss, that is, she must have made a reasonable effort to find work that was suitable and comparable to her prior employment.

It is the contention of the defendant that on the evidence the plaintiff probably could have performed at her former job as a dental assistant with no or minimal discomfort as a result of her injuries by September or October 1999. The defendant also says that by the Fall of 1999 the plaintiff was able to obtain suitable and comparable full-time employment with a significantly higher salary. The defendant says, therefore, that the plaintiff failed to mitigate her damages during the period from that date, being fall of 1999 until the date of birth of her third child in November 2001 and during the period since she returned to work at the beginning of this year.

In your consideration of whether the plaintiff failed to mitigate, you should be aware that each case has to be considered on its own particular facts, but there is generally a wide degree of latitude in defining what is suitable and comparable employment for a person with the age, work experience and training of the plaintiff.

In addition, in considering what is a reasonable search, you should consider on the one hand the absence of any focused plan for identifying and seeking alternative employment and the absence as to the job search actually conducted by the plaintiff, and on the other hand, the absence of any evidence from the defendant that the plaintiff has ever turned down any specific job offers available to her.

If you find that, in fact, the plaintiff could have obtained employment, which would have been suitable and comparable, and which would have resulted in a higher income to her, you are required to lower the amount of her damages for lost income by the amount she would have received if she had not failed to mitigate in this respect.

The learned trial judge did not consider the issue of mitigation with respect to future loss of income.

I note that the plaintiff’s claim for future income loss is calculated by comparing projected income from her current part-time positions with the Toronto District School Board against projected income from a full-time position as a dental assistant. If you conclude that the plaintiff is unable to return to work as a dental assistant, you are entitled to consider whether, if the plaintiff prepared a job search plan and conducted an extensive job search, she would be able to obtain a suitable and comparable full-time position, or whether even after such a search she would remain a part-time employee.