CITATION: Leon v. Toronto Transit Commission, 2016 ONSC 3394
DIVISIONAL COURT FILE NO.: DC064/16 DATE: 20160530
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJ MARROCCO, C. HORKINS and VARPIO JJ.
BETWEEN:
THELMA LEON and GEORGE McCALLA
Plaintiff/Appellant
– and –
TORONTO TRANSIT COMMISSION
Defendant/Respondent
Erin M. Neal, for the Plaintiff/Appellant
Andrew Davidson, for the Defendant/ Respondent
HEARD at Toronto: May 19 2016
C. hORKINS J.
[1] The appellant Thelma Leon appeals from the judgment of Mr. Justice Penny (the trial judge) dated March 13, 2014, following a trial before a jury.
[2] The appellant was a passenger on a TTC bus on August 20, 2010. She claimed that before she was able to sit down, the bus accelerated and she fell resulting in injuries to her right shoulder, back, and right knee.
[3] A police officer attended on the scene and after interviewing the appellant and two witnesses, he concluded that he did not think the appellant had fallen. As a result, he did not file a report. He relayed this to Mr. Bannerman, a TTC supervisor who also attended the scene and spoke to the bus driver, Mr. Lavecchia, the appellant and the witnesses.
[4] On October 6, 2010, the TTC received the first notice that the appellant planned to commence litigation against it as a result of her alleged fall.
[5] A nine-day trial before a judge and jury took place in March 2014. The jury was asked two questions as a result of which it found there was no negligence on the part of the TTC that caused or contributed to the injury to the appellant and they assessed the appellant’s damages at zero. As a result, the action was dismissed.
[6] During the trial, issues arose about two pieces of evidence: the destruction of the video of the purported incident recorded by the cameras on the bus, and the family doctor’s clinical notes and records (“clinical notes”) prior to the date of loss.
[7] The trial judge made rulings regarding the video (the spoliation issue) and production of the doctor’s clinical notes (the clinical notes issue). These rulings are the subject of this appeal.
[8] The appellant also alleges that the trial judge erred when he permitted the respondent to refer to the appellant’s pre-existing injuries and complaints during closing submissions and made reference to these pre-existing injuries and complaints in his charge to the jury.
COURT’S JURISDICTION:
[9] The Divisional Court has jurisdiction to hear appeals from judges’ orders pursuant to s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 when the order in question was final and the monetary limits are satisfied. If the claim is dismissed and damages are assessed at less than $50,000, the Divisional Court has jurisdiction. This includes a case where damages are assessed at zero dollars: Harte-Eichmanis v. Fernandes, 2012 ONCA 266, at para. 14.
STANDARD OF REVIEW
[10] The standard of review on appeals from a judge’s order on questions of law is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
The Spoliation issue
[11] There were four video cameras installed on the TTC bus in question. Installation of video cameras on TTC buses arose from an increase in the number of assaults occurring against TTC operators. A joint task force of the TTC and the transit workers union was formed to review assault prevention options. One of the recommendations of the task force was the implementation of video surveillance. After reviewing the task force recommendations, the TTC began installing video cameras on its vehicles, along with other security measures, in an attempt to reduce operator assaults and aid law enforcement.
[12] The TTC retains the video images recorded on its buses for 15 hours, in accordance with recommendations of the Privacy Commissioner of Ontario. After this time, the data is overwritten by new recordings, unless an authorized party requests the video.
[13] On the day of the applicant’s alleged fall, no steps were taken to retain the data on the video cameras. As a result this data was lost.
[14] The appellant learned about the existence of video cameras on the bus about a week before the trial commenced. The TTC confirmed that the video of the day in question had not been preserved.
[15] At the start of the trial, the appellant brought a motion for an order striking the TTC statement of defence because of the alleged spoliation of the video. In the alternative, the appellant asked for an order that an adverse inference be drawn against the TTC because of its failure to preserve the video.
[16] The trial judge dismissed the motion on March 4, 2014. Written reasons for his ruling were provided after the trial and in part he stated:
4 I held that the issue of the TTC’s requisite intent, to make out spoliation, was an issue of fact for trial and that the issue of the destruction of the video evidence could be pursued at trial.
5 I also held that consideration of how the jury was to be instructed as to the use of this evidence would be the subject of further submissions following the evidence and prior to counsels’ closing submissions and the charge to the jury.
[17] The trial proceeded and the court heard evidence regarding the video and the fact that it was not retained. At the close of evidence, the trial judge heard submissions on whether the jury would be instructed on the issue of spoliation.
[18] The trial judge provided detailed reasons for his decision. He found that the appellant had not established the requisite intent necessary to support a claim of spoliation of evidence.
[19] At paras. 8 to 10, the trial judge correctly set out the law on spoliation as follows:
8 The Supreme Court of Canada’s decision in St. Louis v. R., (1896), 1896 65 (SCC), 25 S.C.R. 649, stands for the proposition that when it is shown that evidence has been intentionally destroyed, a rebuttable presumption of fact arises that the evidence would tell against the party destroying the evidence. This is called spoliation.
9 Spoliation in law, however, does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavorable to the party destroying it. This presumption may be rebutted by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which a party either proves his case or repels the case against them.
10 When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who destroyed it. The unintentional destruction of evidence is not spoliation. It is not appropriate to presume the missing evidence would tell against the person destroying it where the destruction is unintentional, see McDougall v. Black & Decker, 2008 ABCA 353.
[20] The trial judge refused to put the issue of spoliation before the jury and stated as follows:
41 In the circumstances, I find that putting the doctrine of spoliation to the jury, with the mention of rebuttable adverse inferences, would be inappropriate, needlessly confusing and unfairly prejudicial to the defendant’s case.
42 It is for this reason that I am removing this question from the jury and will direct the jury that no inferences may be drawn from the fact that the video footage was not retained. Counsel in their closing submissions are to make no mention of the destruction of the video, or of spoliation, or in any way to suggest that the TTC intentionally destroyed evidence or that it had something to hide in this connection. Indeed, no mention of the issue should be made at all.
[21] The appellant argues that the trial judge made the following errors:
(i) He erred in refusing to dismiss the motion made at the opening of trial and instead directed that the issue be pursued in evidence at trial.
(ii) He erred in refusing to admit the evidence of Michael Atlas.
(iii) He erred in refusing to instruct the jury on spoliation.
[22] The Appellant asks this court to rule on the spoliation of the video evidence, set aside the judgment based on the jury answers and enter judgment for the plaintiff for damages as assessed by the court, or order a new trial. The respondent asks that this appeal be dismissed.
Analysis
[23] I reject the appellant’s position that the trial judge erred as alleged. He correctly stated the law on spoliation. The alleged errors occurred in applying the law to the facts and ruling on the evidence. The standard of review in this case is palpable and overriding error.
[24] The trial judge denied the appellant’s motion to strike at the opening of trial and gave detailed reasons for doing so. He set out the law on spoliation and correctly noted that intent is an essential element to prove spoliation. He concluded that a better evidentiary record was required to determine “whether the [TTC] intentionally allowed the DVR evidence to be overwritten in order to affect the litigation”.
[25] The trial judge did not make a palpable and overriding error. It is the role of a trial judge to control the trial process and make decisions as required. In deciding that the issue of spoliation should be determined at trial on a better evidentiary record, the trial judge was properly exercising his discretion.
[26] Counsel advised during the hearing of this appeal that the TTC policy that was used at trial was a version that appellant’s counsel obtained from the TTC website in 2014. There was evidence at trial that the policy initially gave the police the sole authority for authorizing the removal of the video after an incident. This policy changed at some point to give the TTC supervisor the authority to remove the video. The date that the policy was changed was never identified.
[27] On the motion dealing with spoliation that was heard at the opening of trial, the TTC filed an affidavit from Michael Atlas. The appellant cross-examined Mr. Atlas on his affidavit for the purpose of this motion. During this cross-examination, Mr. Atlas stated that the TTC supervisor (Mr. Bannerman) had the ability to remove the tape in aid of law enforcement and for public safety. At the time be believed that all direction came though Transit Control. The supervisor could have contacted Transit Control and asked for authorization to download the video. Mr. Atlas did not testify during the trial before the jury.
[28] During the trial, several TTC witnesses testified about the video and who at the TTC had the authority to remove and secure the video.
[29] Sean Fuller was the Superintendent of Transit Control. He testified that according to the TTC policy, only law enforcement personnel (the Toronto Police) could request removal of the video from the bus. If the TTC supervisor on site (Mr. Bannerman) had used his keys to remove the video without authorization from the police, he would have been punished.
[30] At trial, Mr. Bannerman was questioned about the process for removing the video. He stated that he was not authorized to make the decision to remove the video and that this could not be done “without police permission”.
[31] Mr. Bannerman was cross-examined about the Mr. Atlas’ evidence that a supervisor did have the authority to download the video. The trial judge reminded appellant’s counsel that the evidence of Mr. Atlas was not before the court and that Mr. Atlas’ affidavit had been filed for the purpose of the motion. The trial judge allowed counsel to cross-examination Mr. Bannerman about what Mr. Atlas’s evidence.
[32] The cross-examination proceeded and Mr. Atlas’ evidence concerning the authority of the supervisor to download the video was put to Mr. Bannerman. He was asked if he agreed with this evidence and he stated he did not. He testified that much later the TTC changed the policy so that the supervisor could remove the video.
[33] The appellant did not take any steps at trial to ensure that the evidence of Mr. Atlas was introduced.
[34] On this appeal the appellant argues that Mr. Atlas’ affidavit and cross-examination transcript was in evidence at trial because it was part of the trial record. The appellant is not saying that this evidence was included in the trial record that she was obliged to file. Rather, she says that it was part of the record because it was filed on a motion heard at the opening of trial. As a result, the appellant states that the trial judge erred in not permitting the appellant to refer to Mr. Atlas’ evidence in closing submissions.
[35] I reject this position. The motion that the trial judge heard was in the absence of the jury and before the parties started to call evidence. There was no agreement to file Mr. Atlas’ evidence for use at trial.
[36] The jury considers the evidence that is introduced during the trial. The jury must consider and weigh this evidence. The jury decides what the facts are, based on a consideration of all of the evidence that is provided during the trial. Since the jury never heard Mr. Atlas’ evidence and it was not filed on consent, it was not evidence before the jury.
[37] At the conclusion of the evidence, the trial judge heard submissions on whether the spoliation issue should be put to the jury.
[38] The appellant argued that according to Mr. Atlas’ evidence, the TTC policy in effect at the time gave the supervisor the authority to remove the video. The trial judge reminded the appellant that she could not rely on Mr. Atlas’s evidence. His affidavit and cross-examination was used for the motion at the start of the trial. While Mr. Bannerman was cross-examined about Mr. Atlas’ evidence, he did not adopt it. The trial judge correctly ruled that if the appellant had wanted to use the evidence of Mr. Atlas, she should have subpoenaed him to testify at trial and she did not do so.
[39] The trial judge found that the appellant failed to prove the requisite intent to destroy the evidence. At paras. 28-32 he explained this finding:
28 The plaintiff initially argued that Mr. Bannerman, by forming a view about Ms. Leon’s credibility vis-à-vis that of the driver and the two eyewitnesses, must have known that litigation by Ms. Leon was likely. The plaintiff took the position that by failing to “request” the video footage, Mr. Bannerman “intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect litigation.” In the face of Mr. Bannerman’s evidence at trial, however, the argument changed.
29 Following Mr. Bannerman’s evidence at trial, Ms. Neal accepted that Mr. Bannerman did not have the requisite intention to make out a case for spoliation. Her argument was that even though Mr. Bannerman thought only the police could authorize a download, in fact TTC policy permitted a supervisor to do so. Reference was made to a policy taken from the TTC website on January 14, 2014. Although Mr. Fuller recognized the policy, he could not say that this policy was in effect on August 20, 2010.
30 Ms. Neal argued that the intention to destroy video footage could be inferred from the alleged failure of the TTC to make supervisors aware that they could request video footage on their own. From this, she says, there is an issue of fact to be put to the jury; that is, whether the TTC intentionally destroyed the video to affect this litigation by not informing Mr. Bannerman that he had the authority to do the download on his own. If the jury were to find that the TTC did fail to advise Mr. Bannerman of this, the jury, she argued, should be instructed to draw the adverse inference that the video would have shown evidence that was adverse to the TTC.
31 In my view, no reasonable trier of fact, acting judicially and properly instructed on the law of spoliation, could conclude that Mr. Bannerman, or the TTC, intentionally destroyed video evidence relevant to ongoing or contemplated litigation. I say this in part because the factual foundation for Ms. Neal’s argument has not been established. It is not clear that the policy she produced from 2014 was in force in 2010. Her position on this is, in any event, contrary to the sworn evidence of both Mr. Bannerman and Mr. Fuller, which was not undermined at trial. It is also not clear from the document itself that the supervisor had any authority to order the download on their own, even if it was the correct policy.
32 In addition, there simply was no ongoing or contemplated litigation on August 20, 2010. Mr. Bannerman interviewed two eyewitnesses who both said Ms. Leon did not fall. Indeed, one of these witnesses said that he assisted Ms. Leon and prevented her from falling. There is no evidence that Ms. Leon threatened or even mentioned litigation at the time. The police told Mr. Bannerman they were not filing a report. The police did not request, or even mention, the video. The TTC has over 500 million rides per year. Mr. Bannerman said that he investigates up to 40 incidents per month. Mr. Fuller said the TTC handles at least 300 incidents a week. There was no reason for Mr. Bannerman to retain the video footage in 2010.
[40] Finally, the appellant argues that the trial judge did not appreciate the critical importance of the video evidence in considering the spoliation issue. Obviously, the video was important since it would have recorded the appellant’s fall, if it had happened as she alleged. However, the importance of the evidence does not relieve the appellant of the obligation to prove intent.
[41] In summary, the trial judge did not make any palpable and overriding errors in dealing with the spoliation issue.
The Clinical Notes issue
[42] During the course of the litigation and prior to trial, the appellant produced to the TTC the clinical notes of her family doctor, Dr. Rose. These notes covered a period of five years prior to the date of loss forward.
[43] The appellant gave sworn evidence in cross-examination and in re-examination that she did not have any problems with her right shoulder before the accident.
[44] After the appellant testified, she called Dr. Rose to testify. During examination-in-chief, Dr. Rose testified that he was unaware of any pre-existing injuries.
[45] During cross-examination, counsel for the TTC asked for an opportunity to review all of the clinical notes that Dr. Rose brought with him to trial. The notes that doctor brought to trial, dated back to 1972, well beyond the five year period that had been produced before trial.
[46] The appellant’s counsel objected to the entire file being used in evidence because she had not seen it. As well, she argued that allowing the doctor to be cross-examined on the entire file would offend the rule in Brown and Dunn. She also described it as trial by ambush.
[47] The court adjourned to allow counsel an opportunity to look at the records and then make submissions on the extent to disclosure.
[48] A review of the notes revealed that the appellant had problems with her right shoulder, knee, and back areas before the TTC accident. Dr. Rose's records showed that the doctor had referred the appellant to an orthopedic surgeon, Dr. Sehmi in 1992 because the appellant strained her shoulder in 1989 moving a patient. The appellant was again referred to Dr. Sehmi in March 2002 and the appellant was diagnosed with tendonitis in the right shoulder and was given a Depo-Medrol injection. X-rays were taken of the back in 1996 and 2001 and the right shoulder in 1996.
[49] Dr. Rose conceded (when cross-examined) the appellant must have had complaints involving her knee, her back, and her right shoulder back in 1996 and 2001 for him to have performed those investigations.
[50] The appellant argues that the trial judge made a palpable and overriding error because he allowed counsel to examine the clinical notes and make submissions before he ruled on the issue of admissibility. The appellant argues that the trial judge should have refused production of the full file because it was unfair to have it produced mid-trial and the respondent had never pursued production of the entire file. Further, the appellant argues that it was a palpable and overriding error to allow production of all clinical notes. I disagree.
[51] When the clinical notes issue arose, the trial judge decided on a process for deciding admissibility that was fair to both parties. Clearly, counsel could not make useful submissions without first examining the notes. Further, it would have been a palpable and overriding error if the trial judge had ruled on admissibility of the notes without reviewing them first.
[52] This was not a Brown v. Dunn situation since the doctor was the appellant’s witness and she had control over use of her records. The appellant had the opportunity to review the entire file that Dr. Rose brought to court. She could have asked him questions about the file during examination-in-chief and she did not.
[53] The trial judge ruled that the respondent was entitled to cross-examine Dr. Rose on all of the clinical notes and records. He noted that the appellant had the opportunity to review the entire medical history with the doctor. These pre-existing notes were relevant. The appellant had denied any prior problems and the records suggested otherwise.
[54] To the extent that allowing the records to be used was unfair to the appellant, the trial judge told appellant’s counsel that the appellant could be called back to testify about the issue of pre-existing injuries. Counsel chose not to do so.
[55] There is absolutely no basis for arguing that the trial judge made a palpable and overriding error in these circumstances. This ground of appeal is rejected.
The Pre-existing injury Issue
[56] The appellant argues that the trial judge erred in allowing reference to pre-existing injuries and complaints to be put to the jury in the TTC’s closing submissions and in his charge to the jury. The appellant states that making the following statement in the charge was an error:
The defence argues that the plaintiff’s present medical conditions are simply a manifestation of her pre-existing medical problems that she had prior to the accident and that the accident had nothing to do with her present condition.
[57] The appellant states that it was an error to allow reference to the pre-existing injuries and complaints because there was no medical expert evidence linking the past injuries and complaints to her problems, that arose after the incident on the TTC bus.
[58] A review of the evidence does not support this alleged error. There was an evidentiary basis for allowing the TTC to reference the past injuries and complaints and referring to this in the charge.
[59] When the applicant’s expert, Dr. Axelrod was cross-examined, he agreed that the evidence showed that the appellant had pre-existing problems with her knees and right shoulder, pre-existing rotator cuff tendonitis and pre-existing degenerative arthritis in her back. Speaking about the appellant’s shoulder, Dr. Axelrod stated that the problem “waxes and wanes”. He also testified that there was evidence of the shoulder bothering the appellant before the bus incident “to some extent”.
[60] The following cross-examination of Dr. Axelrod revealed that the appellant’s pre-existing rotator cuff tear in her right shoulder was chronic:
Q. And you’re conclusion was this was an acute on chronic situation?
A. Those are the terms that I use, yes.
Q. So the chronic situation would be a rotator cuff tear?
A. More likely than not, she has had a long standing rotator cuff tear in her shoulder, yes.
Q. And the would – that’s many years it would take to develop?
A. Many years, yes. And that would fit with going to see those two – that specialist 20 years previously.
Q. So wouldn’t have – the rotator cuff tear wouldn’t have been caused by the TTC accident?
A. Hard to know. Probably she has some rotator cuff disease beforehand. The incident might have made it a little bit worse. One can only guess. But it made it more symptomatic in my opinion.
[61] In summary, there was an evidentiary foundation that justified reference to the pre-existing injuries and complaints in the closing and final charge. As a result, there is no basis for concluding that the trial judge made any palpable and overriding errors.
Conclusion
[62] The appeal is dismissed. The parties have agreed on costs. The appellant shall pay the respondent costs, fixed at $10,000 all inclusive.
___________________________ C. Horkins J.
Marrocco A.C.J.
Varpio J.
Released: 20160530
CITATION: Leon v. Toronto Transit Commission, 2016 ONSC 3394
DIVISIONAL COURT FILE NO.: DC064/16 DATE: 20160530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ACJ MARROCCO, C. HORKINS and VARPIO JJ.
BETWEEN:
THELMA LEON and GEORGE McCALLA
Plaintiff/Appellant
– and –
TORONTO TRANSIT COMMISSION
Defendant/Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Released: 20160530