CITATION: Mujagic v. Kamps, 2014 ONSC 5504

DIVISIONAL COURT FILE NO.: 13-507

DATE: 20141008

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, SWINTON AND GRAY JJ.

B E T W E E N:

MIRSADA MUJAGIC, ARMELA MUJAGIC and BELMIR MUJAGIC Plaintiffs/Appellants

• and -

ANNETTE KAMPS and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants/Respondents on Appeal

COUNSEL: Rodney M. Godard, for the Plaintiffs/Appellants Kieran C. Dickson, for the Defendant Kamps/Respondent on Appeal

HEARD AT HAMILTON: June 5, 2014

THE COURT:

Overview

1The appellants, Mirsada Mujagic and Belmir Mujagic, appeal the judgment of Parayeski J. dated November 24, 2011 that dismissed their action following a jury verdict that assessed damages at zero dollars. The appellants argue that the trial judge gave insufficient guidance to Mirsada Mujagic ("Mrs. Mujagic"), who acted on her own behalf during the trial, with the result that she did not receive a fair trial.

2For the reasons that follow, the appeal is dismissed.

Factual Background

3On December 4, 2001, Mrs. Mujagic was involved in a motor vehicle collision with the respondent, Annette Kamps. She suffered soft tissue injuries to her neck as a result of the accident. As well, she claimed to have suffered significant chronic pain and psychological distress. She also has suffered from a herniated disc that was operated on in 2008.

4After the accident, she obtained the assistance of a lawyer and commenced this action against the respondent driver, Annette Kamps, seeking damages for her personal injuries. Her children, Armela and Belmir, advanced claims under the Family Law Act.

5Mrs. Mujagic's lawyer removed himself as counsel at some time prior to trial. As a result, during an eleven day trial before a jury, Mrs. Mujagic represented herself. The action had been discontinued against the defendant State Farm and dismissed as against Armela Mujagic by the time of trial.

6Mrs. Mujagic communicated through a Serbo-Croatian interpreter. At times she responded to questions in English but was instructed not to do so by the trial judge.

7She raises a number of complaints about the way in which the trial was conducted which, in her view, cumulatively resulted in an unfair trial and a substantial miscarriage of justice. Those complaints are:

• The trial judge refused to allow her to file medical consultation notes as evidence because of the failure to comply with the notice requirements for medical reports in s. 52(2) of the Evidence Act, R.S.O. 1990, c. E.23 and for experts' reports in rule 53.03 of the Rules of Civil Procedure.
• The trial judge refused to allow Mrs. Mujagic's two medical witnesses to give opinion evidence about the causation of her injuries because of the failure to provide an expert's report in accordance with the rules.
• The trial judge permitted the sole expert witness for the defence to testify prior to Mrs. Mujagic having called her own medical witnesses.
• Mrs. Mujagic was not allowed to communicate in English when she wished to do so.
• Mrs. Mujagic failed to mention the range of damages she sought in her submissions to the jury, and later, during the jury charge, she was not allowed to bring the amount she sought to the jury's attention.

8The jury returned a verdict in which it found the respondent 30% liable and Mrs. Mujagic 70% liable for the accident. However, the jury assessed the damages of the appellants at zero, resulting in the dismissal of the action. The trial judge awarded costs to the respondent of $55,562.34.

Analysis

9Essentially, the appellants are arguing that the trial judge failed to give adequate assistance to Mrs. Mujagic, a self-represented litigant, with the result that the trial was unfair and resulted in a substantial miscarriage of justice. The main focus of their argument is the treatment of the medical evidence. However, they raise other issues as well, arguing that the errors made by the trial judge, considered together, resulted in an unfair trial.

The treatment of the appellants' medical evidence

10There was evidence at trial that Mrs. Mujagic suffered from both physical and psychological conditions. Therefore, one of the key issues for the jury to determine was the causation of those conditions. The defence took the position that there was no causal connection between her injuries and the motor vehicle accident.

11At trial, Mrs. Mujagic attempted to file medical consultation notes that contained opinions from medical doctors who were not being called as witnesses. Defence counsel objected because he would not have had an opportunity to cross-examine these doctors.

12The trial judge ruled that the notes could not be made exhibits for two reasons: first, Mrs. Mujagic had failed to comply with the notice requirements in rule 53.03 and s. 52(2) of the Evidence Act; and second, the doctors were not being called to testify, so there would be no opportunity for the defence to cross-examine them.

13Two medical witnesses did testify for the appellants: Dr. Jacques Gouws, a treating psychologist, and Dr. Ali Ghouse, a physiatrist. As no expert reports had been served in accordance with rule 53.03, the trial judge ruled that Dr. Gouws could give evidence only with respect to treatment and diagnosis within limits. The doctor gave a diagnosis of chronic pain disorder with psychological factors and a medical condition and a significant and serious adjustment disorder with mixed anxiety and depression. However, the trial judge refused to allow the doctor to give an opinion on whether Mrs. Mujagic had a catastrophic psychological condition or whether there was a causal link between his diagnosis and the motor vehicle accident, given the lack of an expert report.

14Similarly, Dr. Ghouse was allowed to give evidence about his diagnosis, an acute disc herniation, but not about causation because of the lack of an expert report in accordance with rule 53.03.

15The appellants argue that the trial judge erred in his rulings on the admissibility of this medical evidence. They argue that the trial judge could have given relief against non-compliance under rule 53.08, and he erred in law by failing to refer to that provision of the rules. Rule 53.08 allows the trial judge to grant leave to introduce an expert's report that was not properly served on such terms as are just "and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial". The appellants submit that the trial judge failed to consider how the problem could have been solved without prejudice to the defendants. For example, he could have offered Mrs. Mujagic a short adjournment so that she could call the doctors who made the consultation notes so they could testify. He could also have granted leave to file the notes. With respect to the two doctors who did testify, he could have admitted the reports made by them in the Statutory Accident Benefit action, even though those reports had not been received by the defence in the damages action.

16There is no question that a trial judge has an obligation to assist an unrepresented litigant, for example, by explaining court procedures and applicable legal principles. However, the trial judge also has an obligation to ensure that there is fairness to the other party to the proceedings. Accordingly, the trial judge must exercise discretion in determining the amount of assistance to provide the unrepresented litigant in order that the litigant receives a fair hearing, as does the other party. As the Ontario Court of Appeal stated in Davids v. Davids, 1999 9289 (ON CA), [1999] O.J. No. 3930 at para. 36 and repeated again in College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685 at para. 57:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer's familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants' unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party.

17Mrs. Mujagic faced a daunting challenge in representing herself in a civil jury trial. In our view, the trial judge treated her fairly and met his obligations to her as a self-represented litigant. He made no legal error in refusing to admit the medical notes and limiting the scope of the evidence of the testimony of the doctors who testified because of non-compliance with the rules. The defence was entitled to have an expert's report in advance in order to obtain a responding report, if necessary, and to prepare for cross-examination of the expert.

18Moreover, the trial judge was not obligated to consider an adjournment to allow compliance with the rules regarding expert reports, given that rule 53.08 requires the trial judge to consider whether there would be "undue delay" caused by granting an adjournment. The parties were before him and in the midst of a jury trial when the issues relating to the medical evidence emerged. Realistically, the trial judge would have had to declare a mistrial in order for the appellants to obtain the needed expert reports on causation. Even with respect to the doctors who made the medical notes, there is no indication in the record as to the length of an adjournment necessary to allow the doctors to be summoned to testify.

19Despite the ruling against testimony on causation, the trial judge gave some leeway to the appellants' medical experts when they were testifying about diagnosis and allowed some mention of causation, notably by Dr. Gouws.

20In our view, the trial judge exercised his discretion in a reasonable manner and on the basis of proper principles. Undue delay is a factor to be considered in determining whether to grant leave under rule 53.08, and clearly, there would have been significant delay if expert reports were to be obtained and served in accordance with the rules.

Hearing the defence expert out of order

21With respect to this issue and those that follow, the appellants' counsel conceded that each error by the trial judge would not alone warrant a new trial. However, cumulatively, these errors are said to have resulted in a miscarriage of justice.

22The appellants object to the fact that the trial judge allowed the defence medical expert, orthopedic surgeon Dr. de Beer, to be called before the plaintiffs' case was completed. The trial judge explained to the jury that this was unusual, but he was allowing this in order to accommodate the witness and as a matter of professional courtesy.

23The appellants have not demonstrated that this arrangement resulted in unfairness to them.

Requiring Mrs. Mujagic to use an interpreter

24Mrs. Mujagic chose to start the trial using the assistance of a Serbo-Croatian interpreter to communicate with the court. At times, though, she sought to reply to questions in English. The trial judge refused to allow her to do so, given her earlier decision to proceed with an interpreter. However, the trial judge did allow her to address him in English during the absence of the jury.

25The trial judge was in the best position to determine whether Mrs. Mujagic was better served by using an interpreter, given the level of her English language skills. She has raised no complaint about the quality of the interpretation, nor did she ever ask the trial judge that she be allowed to continue without the interpreter. In our view, there was no unfairness in requiring her to use the interpreter's services.

The failure to mention the range of damages

26The trial judge told Mrs. Mujagic that she was permitted to suggest a range of damages to the jury in her closing submissions. She indicated to the trial judge that she intended to mention the damages sought in the Statement of Claim. However, she failed to do so in her submissions to the jury. Defence counsel did suggest a range of damages between $1,000 and $5,000.

27During the trial judge's charge to the jury, he mentioned the range proposed by the defence. Mrs. Mujagic then asked, during a break in the delivery of the charge, that she be allowed to put the Statement of Claim before the jury or have the trial judge mention the damages she sought. The trial judge refused her request.

28Mrs. Mujagic had the opportunity to prepare for her submissions to the jury. Indeed, the trial judge gave her some extra time to prepare because she was unrepresented. The fact that she failed to suggest a range or did not understand the need to do so did not result in unfairness to her. Indeed, one can surmise from the jury's verdict that the jurors were not satisfied she had suffered serious injuries as a result of the motor vehicle accident that warranted an award of damages. Accordingly, it is most unlikely that the failure to mention a range of damages affected the outcome of the trial.

Conclusion

29The trial judge provided Mrs. Mujagic with considerable assistance and accommodation throughout the trial. He explained various steps in the proceedings to her, helped clarify terms, accommodated her in scheduling witnesses, gave her latitude in the presentation of testimony, and allowed her extra time to prepare her closing argument.

30In the circumstances, the trial judge met his obligation to provide the self-represented litigant with a fair hearing and there is no basis to find a substantial miscarriage of justice. Therefore, the appeal is dismissed. Costs of the appeal in the agreed amount of $7,500.00 are to be paid by the appellants to the respondent.

Matlow J.

Swinton J.

Gray J.