DIVISIONAL COURT FILE NO.: 331/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON AND LEDERER JJ.
BETWEEN:
ELEANOR BAINES
Applicant
(Plaintiff)
– and –
NAVDEEP S. HEHAR AND MANMOHAN S. HEHAR
Respondents
(Defendants)
In Person
Rachel Pano and David Silverstone, for the Respondents (Defendants)
HEARD at Toronto: November 27, 2012
KITELEY J. (orally)
1Following a motor vehicle accident in January 2000, a trial was conducted in March 2011. Eleanor Baines, the plaintiff, has appealed from the jury verdict by which she was found ten percent liable and the defendant driver, ninety percent liable. The jury awarded Ms. Baines $2,000 for non-pecuniary loss and $2,000 for past loss income, for a total of $4,000.
2Moore J., the trial judge, also heard submissions on a threshold motion pursuant to s. 267 of the Insurance Act (Bill 59) and then issued a decision (Baines v. Hehar, 2011 ONSC 1842) in which he found that Ms. Baines had failed to satisfy the court that she had sustained a permanent serious impairment of an important physical, mental or psychological function. Therefore, her claim for non-pecuniary damages was dismissed.
3Although the jury awarded an amount for past income loss, the parties agreed that that amount was lower than the amount of income replacement benefits paid to Ms. Baines by her own auto-insurer and therefore her net recoverable pecuniary loss was zero. As a result of the motion, the defendants were not liable to pay any damages to Ms. Baines.
4Ms. Baines has appealed and raised these issues: whether she was properly accommodated; evidentiary rulings made by the trial judge; the ruling by the trial judge on the s. 267 motion; the adequacy of the jury charge; the unreasonableness of the verdict; and bias of the trial judge.
STANDARD OF REVIEW
5Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.) makes clear that the standard of review on an appeal involving a question of law is correctness. The standard of review for findings of fact is palpable and overriding error and the standard of review for findings of mixed fact and law is on the spectrum between those depending on the nature of the issue.
6With the exception of the challenge to the jury verdict, we are satisfied that generally the rulings that are the subject of this appeal fall into the category of mixed fact and law. The rulings in question are closer to findings of fact than to questions of law in that the trial judge was required to review each request in the context of the legal and factual issues involved in the trial. Accordingly, we apply the standard of review of palpable and overriding error.
ANALYSIS
Analysis
7The first issue is whether the failure to accommodate the appellant resulted in an unfair trial. The trial was initially scheduled to begin in May 2010. Horkins J. held a voir dire and issued reasons for decision with respect to the accommodation request and heard submissions with respect to several evidentiary issues and released Reasons for Decision (Baines v. Hehar, 2010 ONSC 2974 and 2010 ONSC 2979). She adjourned the trial with specified expectations as to how the appellant would obtain evidence that might be found to be admissible.
8In March 2011, Moore J. presided over the trial with a jury. Ms. Baines has appealed the decision made by Horkins J. on May 20, 2010 as to the accommodations that would be made available during the trial. Horkins J. declined to accede to her request that a support person be appointed for the reasons she set out in her Reasons for Decision. At the trial before Moore J. that began on March 3, 2011, Ms. Baines again asked for a support person and the trial judge allowed a support person to sit at the counsel table and assist, for example, with documents, but not to speak for the appellant. Ms. Baines also had a note taker provided to her as well as a retiring room and breaks when needed.
9We are satisfied that the accommodations provided to her pursuant to rulings made by Horkins J. and Moore J. were reasonable and consistent with any legal requirements for accommodation. We would not give effect to this ground of appeal.
Second Issue: Evidentiary Rulings
10The second issue is evidentiary rulings. Ms. Baines has also challenged rulings made by the trial judge as to the admissibility of certain items of documentary evidence and rulings as to the admissibility of certain expert evidence.
11In particular, it was clear from the ruling made by Horkins J. that Dr. Mamelak could not testify about the SPECT scan unless the trial judge qualified him to do so. The trial judge ruled that a radiologist or technician was required on this issue. That was a reasonable conclusion. The appellant has not satisfied us that the trial judge made palpable and overriding errors in any of the challenged rulings.
Third Issue: Threshold Motion
12The third issue is the threshold motion. The decision made by the trial judge on the threshold motion is also one characterized as a question of mixed fact and law. On this issue, the trial judge had heard evidence through the course of the trial including the extensive evidence of the appellant. He had an opportunity to observe her, listen to her evidence, watch her perform and weigh all of the evidence. He made findings of credibility. He also considered and accepted the evidence of Dr. Bail that the appellant had not suffered any ongoing impairment of a mental function. The appellant has not satisfied us that the trial judge made palpable and overriding errors in making his findings on the motion that she did not suffer a permanent impairment of an important physical, mental or psychological function.
13With respect to the evidentiary rulings and the threshold motion, the trial judge exercised discretion. We are not persuaded that he applied erroneous principles or disregarded or misinterpreted material evidence. There is no basis to interfere with the exercise of his discretion.
14The evidentiary rulings and the decision on the threshold motion are key to the appeal. As a result of the threshold motion, the appellant is not entitled to non-pecuniary damages.
Fourth Issue: Jury Charge
15The fourth issue is the jury charge. Ms. Baines has challenged the jury charge on the basis that it was not balanced. She submitted that it favoured the position taken by counsel for the defendants and it failed to adequately explain concepts of causation and damages. She also submitted that the trial judge inappropriately instructed the jury that the existence of insurance played no part in their deliberations. We are satisfied that the case was fairly put to the jury. The law was clearly stated and there was nothing materially deficient in the charge. On the point of insurance, the trial judge used the standard instruction. We are satisfied that the jury was properly instructed. We would not allow that ground of appeal.
Fifth Issue: Jury Verdict
16The fifth issue is the jury verdict. Courts must accord great deference to a jury’s findings in civil negligence proceedings. (Housen at para. 30). The jury had an extensive opportunity to observe the plaintiff and consider her allegation that she had suffered a brain injury as a result of the accident. The jury heard the evidence that she had presented including her psychiatrist, her daughter, friends and an actuary. The jury also heard the evidence presented by the defence including Dr. Ford, Dr. Upton and Dr. Bail who all concluded that she did not sustain a permanent impairment as a result of the motor vehicle accident. We are satisfied that there was ample evidence to support the verdict.
Sixth Issue: Bias of the Trial Judge
17The last issue is bias of the trial judge. There is no evidence to support the allegation of bias. The transcript makes it clear that the trial judge tried to assist the appellant. The fact that he ruled against her on certain legal questions does not show bias.
18The appeal is therefore dismissed.
COSTS
Costs
19I have endorsed the back of Volume Two of the Appeal Book and Compendium, “The appeal is dismissed for oral reasons given this date. Appellant shall pay to the respondent costs fixed at $4,000.”
KITELEY J.
SWINTON J.
LEDERER J.
Date of Reasons for Judgment: November 27, 2012
Date of Release: December 10, 2012
CITATION: Baines v. Hehar, 2012 ONSC 6775
DIVISIONAL COURT FILE NO.: 331/12
DATE: 20121127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON AND LEDERER JJ.
BETWEEN:
ELEANOR BAINES
Applicant
(Plaintiff)
– and –
NAVDEEP S. HEHAR AND MANMOHAN S. HEHAR
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: November 27, 2012
Date of Release: December 10, 2012