INTRODUCTION

[1] Mohammad Mohammad Ayub (the “Appellant”), was the Plaintiff in a motor vehicle personal injury lawsuit. He appeals the jury verdict, Threshold Motion Decision and other Rulings by the Trial Judge in the course of five-day trial. Liability was admitted and the sole issues at trial were causation and damages. The Appellant claimed general and special damages as a result of injuries sustained in the motor vehicle accident. At the time of the accident, Yi-Wen Sun drove a vehicle owned by 1638940 Ontario Inc. (the “Respondents”). The jury awarded the Appellant $25,000 in general damages and $5,000 for future health care expenses.

[2] At the conclusion of the trial, the Respondents brought a Threshold Motion pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8 (the “Act”). The Trial Judge determined that the Appellant failed to prove that he had sustained a “permanent, serious impairment of an important physical, mental or psychological function” as a result of the collision. The Trial Judge granted the motion which resulted in the Appellant’s damages being reduced to zero and the action being dismissed.

[3] The Appellant requests that the order of the Trial Judge on the Threshold Motion be set aside. He further asks this court to substitute its assessment of general damages for that of the jury, as well as for an order for past and future income loss as this court sees fit based on the record. In the alternative, the Appellant requests that the verdict of the jury be set aside and new trial be ordered. He also seeks costs of the trial below and of this appeal. The Respondents request that the appeal be dismissed with costs.

BACKGROUND

[4] The Appellant came to Canada from Afghanistan via Russia as a refugee in 2007. In Afghanistan, he had completed two years of university before working in Russia in shipping and receiving, and subsequently at a shoe store. After arriving in Canada, he undertook an English as a Second Language (ESL) course, but there is disagreement as to whether he completed it.

[5] On June 3, 2009, the Appellant was rear-ended by the Respondent, Sun, who admitted liability for the accident at trial. The Appellant testified that he immediately began suffering from dizziness and pain, despite minimal damage to the vehicle. After receiving immediate medical attention, he was prescribed pain medication and advised to see his family doctor.

[6] Since then, the Appellant has complained of chronic pain and has seen a number of specialists. The pain allegedly prevented him from working. Further, it has also negatively impacted the pursuit of extracurricular activities and his home life. He and his wife have had to rely on social assistance as a result.

[7] In the Appellant’s original Statement of Claim, he sought general and special damages, each in the sum of $500,000. Following a five-day trial, the jury awarded the Appellant $25,000 in general damages and $5,000 in future health care expenses. However, while the jury was deliberating, the Respondents brought a Threshold Motion to bar claims for non-pecuniary and health care expenses on the basis of statutory immunity provided by ss. 267.5(3)(b) and 267.5(5)(b) of the Act. The Trial Judge agreed, and ordered that the Respondents were not liable to the Appellant for any damages for health expenses or non-pecuniary losses.

ISSUES

[8] The issues on appeal before this court are as follows:

Did the Trial Judge err in the Threshold Motion Ruling?
Did the Trial Judge err on the Loss of Income Ruling?
Did the Trial Judge err in his charge to the jury on the issues of quantum of damages, mitigation, and hearsay evidence, and,
If the Trial Judge committed any errors, should a new trial be ordered?

COURT’S JURIsdICTION

[9] There is no dispute that the Divisional Court has jurisdiction under ss. 19(1)(a) and 19(1.2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[10] The jury indicated that if the claim had been allowed, the amount awarded would not have exceeded $50,000, exclusive of costs.

STANDARD OF REVIEW

[11] The parties agree that the standard of review for judicial appeals when there is a question of fact or a question of mixed fact and law (absent an extricable legal error) is “palpable and overriding error.”

[12] The Appellant also asserts that the standard of review for questions of law is correctness, and that the following issues attract the correctness standard:

Income loss issue (two errors of law identified: failing to follow principles established in case law, and holding that the Statement of Claim did not have pleadings to ground future loss of income)
The charge to the jury regarding mitigation
The Threshold Motion Issue

[13] Furthermore, the Appellant contends that the definition of “serious” in the Threshold Motion ought to be viewed as an error of mixed fact and law, containing an extricable error of law. The Appellant does not specify which standard of review is warranted by the alleged errors made by the Trial Judge when charging the jury on quantum of damages or hearsay evidence.

1. Did The Trial Judge err in the Threshold Motion Ruling?

[14] On March 18, 2015, while the jury was deliberating, the Respondents brought the Threshold Motion. The issue on the motion was whether the Appellant suffered a “permanent serious impairment of an important physical, mental or psychological function” under ss. 267.5(3) and (5) of the Insurance Act. On March 20, 2015, the Trial Judge released his decision granting the Threshold Motion. Specifically, the Trial Judge found that the Appellant’s injuries did not meet the definition of “serious”.

[15] The Appellant submits that his testimony that he could not complete his English as a Second Language (ESL) training due to “severe pain” “presumably meets the plain meaning of Section 4.2(1).1(ii) of O. Reg. 461/96,” which defines an impairment as “serious” where it “substantially [i.e. not completely] interfere[s] with a person’s ability to continue training.” However, the Trial Judge did not consider this because he rendered his decision on a finding of fact “not supported by the evidentiary record,” i.e., that the Appellant was able to return to and complete the ESL training. Relatedly, the Appellant submits that Ontario courts have found that individuals, who return to pre-motor vehicle accident employment or activities, but with pain, constant treatment/medications and diminished enjoyment, will meet the definition of “serious” for the purposes of a Threshold Motion.

[16] The Appellant further submits that the Trial Judge erred when he failed to consider the evidence of the three expert witnesses in his determination of whether his injuries were “serious”. The Appellant also suggests that the Trial Judge made other findings of fact not supported by the evidentiary record, but does not detail these erroneous findings of fact except in summary: “such as his characterization of the plaintiff’s training session at Tim Horton’s and the testimony of Dr. Blitzer and Dr. Berbrayer regarding the plaintiff’s limitations.” It is submitted that as the Trial Judge did not consider their evidence at all, it is impossible to determine what weight he gave to their medical opinions. This, it is argued, is another reviewable error of law.

[17] The Respondents submit that the Trial Judge did not err in his consideration of the law or the facts in finding that the threshold had not been met. The Respondents point out that the Appellant’s own submissions during closing arguments and during the Threshold Motion supported a finding that the Appellant continued and completed the ESL training. The Respondents assert that the Appellant’s argument that the Trial Judge made erroneous findings of fact or mischaracterized events is unfounded. In sum, according to the Respondents, the Appellant has failed to identify any palpable and overriding error.

[18] In the alternative, the Respondents submit that if the Court determines that the Appellant’s impairment was “serious”, he still failed to establish that the impaired functions were “important” as defined by s. 4.2(1)2 of O. Reg. 461/96.

[19] For the following reasons, I find the Appellant has not established that the Trial Judge committed palpable and overriding factual errors or an error in law.

[20] The Trial Judge’s factual findings are entitled to deference. In HL v. Canada (Attorney General), the Supreme Court of Canada stated that an appellate court should only interfere with a Trial Judge’s findings of fact if “the Trial Judge has shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence.”[^1]

[21] This level of deference is afforded not only to findings made on the basis of lay evidence, but also on a Trial Judge’s findings with respect to competing expert evidence. Accordingly, this court should interfere with the Trial Judge’s findings regarding the parties’ expert evidence only if those findings were “unreasonable”.[^2]

[22] The Trial Judge’s conclusion that the Appellant failed to meet the threshold is a question of mixed fact and law. That conclusion should not be disturbed unless the Appellant can satisfy the court that the Trial Judge committed a palpable and overriding error.[^3] For the following reasons the Appellant has not satisfied me that the Trial Judge has committed palpable and overriding errors.

[23] The Appellant had the onus of demonstrating that he had suffered a “permanent serious impairment of an important physical, mental or psychological function” under ss. 267.5(3) and (5) of the Insurance Act.[^4] Section 4.2(1) of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996 (the “Regulation”) sets out the criteria that must be met in order for the court to make such a finding. Section 4.2(1)1, which contains the requirements for a “serious” impairment, provides:

The impairment must,

i. Substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. Substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. Substantially interfere with the most of the usual activities of daily living, considering the person’s age.[^5]

[24] The Trial Judge did not err in his consideration of the law or the facts in finding that the threshold had not been met. First, contrary to the Appellant’s assertion, the Trial Judge applied the correct legal principles, including s. 4.2(1)1(i) of the Regulation.[^6] In his reasons, the Trial Judge outlined the test on the Threshold Motion, and specifically considered the evidence (or lack thereof) respecting Mr. Ayub’s employment history. He found “no evidence of any employment history on the part of the plaintiff in Canada”.[^7] As a result, it is clear that the Trial Judge made no palpable and overriding errors of fact. The Trial Judge’s conclusion that Mr. Ayub failed to establish an impairment that “substantially interfere[d] with [his] ability to continue his…regular or usual employment” under s. 4.2(1)1(i) of the Regulation was amply supported by the lack of evidence..

[25] Second, contrary to the Appellant’s suggestion, the Trial Judge did not misapprehend the evidence by finding that the Appellant completed his ESL course after the accident.[^8] The position taken by the Appellant in his counsel’s closing address to the jury and his submissions to the Trial Judge on the Threshold Motion was that the Appellant had persevered and completed the ESL course. It was also Dr. Devlin’s evidence that the Appellant told him that he had completed his ESL course. Dr. Devlin was not cross-examined on this evidence.

[26] The statements that Appellant’s counsel made to the jury and the Trial Judge constitute formal admissions by the Appellant, and the Trial Judge was entitled to rely upon them in reaching his conclusions on the Threshold Motion.[^9] After having told the jury and the Trial Judge that he completed his ESL course, the Appellant cannot, on appeal, resile from the evidence that he persevered and completed the ESL course simply because he does not like the result at trial.

[27] Third, the Appellant states that the Trial Judge mischaracterized the training session at Tim Horton’s.[^10] However, the Trial Judge did no such thing. The Trial Judge stated in his reasons that the Appellant “testified that sometime after the collision, he attended a two hour training session at a local Tim Horton’s operation, but was forced to leave and return home after only two hours due to, inter alia, lower back pain.[^11] Although the Appellant did not testify as to the length of the training session, his evidence was that he left after two hours due to pain.[^12]

[28] Fourth, the Appellant takes issue with the Trial Judge’s description of Dr. Berbrayer’s evidence that “there was nothing stopping the plaintiff from performing light work as long as he did not sit for too long”.[^13] Again, there is no merit to this argument, as Dr. Berbrayer testified on cross-examination, “With the qualifiers that I mentioned in terms of standing too long, sitting too long, with the appropriate qualifiers there might be some type of work, provided he had the training, education, etcetera, that could do.”[^14]

[29] Finally, the Appellant argues that the Trial Judge failed to consider the evidence of the medical experts in determining if the threshold was met “apart from a brief reference to the inadmissible hearsay evidence attributable to Dr. Blitzer and Dr. Devlin”.[^15] It is clear, however, that the Trial Judge took into account the expert evidence: his reasons included a section devoted to their testimony,[^16] and he referred specifically to the “medical evidence” in his conclusion.[^17] Moreover, the Trial Judge did not err in relying on the statements that Mr. Ayub made to Dr. Blitzer and Dr. Devlin respecting his participation in household activities. As the statements were made by Mr. Ayub, they were admissible as evidence of their truth.[^18] Ultimately, the Appellant has failed to identify any palpable and overriding error warranting the Court’s intervention.

[30] On the Threshold Motion, the Respondents conceded that the Appellant’s injuries were permanent.[^19] However, contrary to the suggestion of the Appellant, the Respondents did not concede that the Appellant suffered impairments to an “important function”.[^20] As the Trial Judge found in the Threshold Ruling, the concession by the Respondents was that “the plaintiff has adduced evidence of impaired functions as a result of headaches and back pain with consequential difficulties associated with movement, sleep and mood”.[^21]

[31] Section 4.2(1)2 of the Regulation contains the requirements that must be met in order for a function to be “important” for the purposes of the threshold analysis:

For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

iv. be important to the usual activities of daily living, considering the person’s age.[^22]

[32] Even if the Trial Judge erred in finding that the impairment was not “serious” (which I do not find) this court still upholds the Threshold Ruling because the Appellant has failed to establish that the functions impaired were “important” under s. 4.2(1)2.

[33] For example, there was no evidence led at the trial to demonstrate that:

(a) The Appellant has “regular or usual employment” (under (i));

(b) The impairment interfered with the “essential tasks of [Mr. Ayub’s] training” (under (ii)). Indeed, the Appellant’s position at the trial was that he had completed his ESL course;

(c) The Appellant has suffered an impairment that was necessary for him “to provide for his…own care or well-being” (under (iii)); or

(d) The Appellant had suffered an impairment that was “important to the usual activities of daily living, considering [his] age” (under (iv)). Even Dr. Berbrayer’s evidence was that the Appellant was capable of performing “light activities” of daily living.[^23]

[34] It is clear from a review of the Trial Judge’s Reasons on the Threshold Motion, that he was aware of the legislative scheme underlying the Threshold Motion pursuant to s. 267.5 of the Insurance Act. He correctly set out the statutory provisions and that a plaintiff must prove that as a result of the collision, he has sustained a permanent, serious impairment of an important, physical, mental or psychological function so as to entitle him to the damages award.

[35] The Trial Judge’s approach was consistent with Justice Firestone’s “fulsome and helpful summary” of the relevant jurisprudence in threshold motions, and the principles to be considered and applied by the motions judge in Malfara v. Vukojevic, 2015 ONSC 78 (SCJ).

[36] The Trial Judge considered the evidence at trial including the Appellant’s evidence that he was able to return and complete the ESL course after the collision. Further, the Appellant testified that he was physically able to attend the ESL course and complete whatever assignments or tasks were necessary to complete the requirements.

[37] The Trial Judge considered the expert testimony of Dr. Blitzer and Dr. Berbrayer. The Trial Judge noted that all three experts found, in some form or another, that the Appellant was experiencing chronic pain.

[38] The Trial Judge addressed what he held to be the only consistent piece of evidence running through both the pre-collision and post-collision periods, namely, the Appellant’s attendance at the ESL course. At para. 38 of his Reasons, he held:

To the extent that the ESL course could constitute “regular training”, there was no evidence that the plaintiff’s chronic pain interfered with his ability to continue and eventually complete that training.

[39] In the end, the Trial Judge concluded that the Appellant had not proven on the balance of probabilities that he had sustained a serious impairment with continuous severity. At para. 33 of his Reasons, he held:

While the plaintiff no doubt suffers from lingering effects of a collision, I do not accept that there has been a “substantial interference” as a result of the collision given that, “inter alia”, he was able to complete the ESL course without incident, or at least without evidence tendered at trial showing any difficulty in doing so.

[40] Further, at para. 44 of the Reasons, the Trial Judge found that while the Appellant experienced ongoing and continuing lower back pain and knee/ankle pain lasting indefinitely, this did not have a significant effect on his enjoyment of life. The Trial Judge explained this as follows:

… I do not find that evidence tendered supports a conclusion that the plaintiff’s injuries and impairments have had a “significant effect” on the plaintiff’s enjoyment of life given his age or that such impairments have interfered or will substantially interfere with his pre-accident combined capacity for work or pleasurable activity.

[41] The Trial Judge concluded that the Appellant failed to discharge his onus of proof under the legislation and granted the Respondents’ motion.

[42] I find that the Trial Judge committed no errors of law or fact in determining that the Appellant had failed to discharge his onus to establish that the threshold had been satisfied. The Trial Judge’s findings in his Threshold Ruling were amply supported by the record, including the position taken by the Appellant and his counsel at trial.

[43] The Trial Judge correctly determined that the Appellant failed to satisfy his onus to establish that he suffered a “permanent serious impairment of an important physical, mental or psychological function” under ss. 267.5(3) and (5) of the Insurance Act.

2. Did the Trial Judge err in the Loss of Income Ruling?

[44] The Appellant submits that the Trial Judge erred in failing to put to the jury the question of whether and to what extent the Appellant suffered a past and future income loss as a result of the motor vehicle accident (“Loss of Income Issue”). The Appellant divides this submission into three sub-issues:

(a) The Trial Judge erred in determining that there was insufficient evidence to put forward the Loss of Income Issue before the jury;

[45] The Appellant argues that he gave adequate evidence to support his of the Loss of Income Claim. Specifically, there was evidence the he was seeking employment in Canada, but was unable to do so because of his injuries and impairments, as well as expert evidence that he was prevented from working as a result of the injuries and impairments.

[46] The Appellant argues that, according to Schrump et al v. Koot et al, 1977 1332 (ON CA), [1977] 18 O.R. (2d) 337 (C.A.), the standard of proof for damages related to future loss of income is more relaxed than the balance of probabilities. Moreover, he states that Fiddler v. Chiavetti, 2010 ONCA 210 indicates that a jury can make its own calculations with respect to future loss of income, and that expert evidence is not required to make such a determination. Finally, the Appellant suggests that the Trial Judge ought to have taken judicial notice of the prevailing minimum wage and other value tables to permit the jury to estimate future loss of income.

(b) The Trial Judge erred in determining that the Statement of Claim did not plead the Loss of Income Issue;

[47] The Appellant argues that the Statement of Claim specifically pleads that he “has suffered other pecuniary damages up to the present and will continue to suffer pecuniary damages in the future, the full particulars of which are not known at this time.” The Appellant submits that a plain reading of this excerpt includes loss of income and the Trial Judge erred in finding that it did not.

[48] The Appellant submits that the case law has established that amendments to a Statement of Claim to plead remedies flowing from the facts alleged are allowable and not subject to a limitation period during or after trial.

[49] The Respondents submit that the Trial Judge made no error in his Loss of Income Ruling. The Respondents refer to B.(M). v. 2014052 Ontario Ltd., 2012 ONCA 135, which establishes that a Trial Judge must only permit questions to go to the jury on which there is “reasonable evidence.” The Respondents submit that the Loss of Income Issue was not sufficiently pleaded and there was no reasonable evidence to establish this issue. Specifically, there was no evidence led about the Appellant’s employment prospects, the type of work that he sought to obtain, or the skills that he had to get a job in Canada, aside from limited evidence about training he attended at Tim Horton’s. Moreover, the expert witnesses could only speculate about the type of work that he might be qualified to perform.

[50] The Respondents agree that a lesser standard of proof applies to determining future income loss, but emphasize that there must be a “real and substantial risk” of a future loss in order for the question to be put to the jury. The Respondents submit that the evidence about the Appellant’s employment prospects was “non-specific and speculative at best, and non-existent at worse.”

[51] The Respondents submit that this court should defer to the Trial Judge’s conclusion that the pleadings and evidence were insufficient to permit the questions relating to loss of income to go to the jury. The Respondents submit that the evidence respecting any income loss was at best vague and speculative. Such evidence did not amount to reasonable evidence on which a jury could assess damages.

[52] For the following reasons, this court finds that the Trial Judge committed no error in his Loss of Income Ruling by not permitting the question of whether and to what extent the Appellant suffered a past and future income loss as a result of the motor vehicle accident, to be put to the jury.

[53] In B.(M.) v. 2014052 Ontario Ltd.,[^24] the Court of Appeal held that although the jury is the trier of fact, the Trial Judge’s role is to act a gatekeeper, only permitting questions in which there was “reasonable evidence” to go to the jury.

[54] Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be “reasonable evidence” to allow a question to go to the jury. As Meredith J.A. stated in Milligan v. Toronto Railway:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative.[^25] [Emphasis added]

[55] According to the Court of Appeal, a Trial Judge’s Ruling on whether a question should be put to the jury “is entitled to deference as the Trial Judge [is] in the best position to evaluate the issue”.

[56] In the case at bar, as in B.(M), the loss of income claim was not sufficiently pleaded and there was no reasonable evidence led at trial to establish that the Appellant had suffered any loss of income or that he would suffer any in the future. The Statement of Claim included only a bald pleading that “the Plaintiff has suffered other pecuniary damages up to the present and will continue to suffer pecuniary damages in the future”. The pleading contained no material facts respecting the Appellant’s employment history or the impact of the accident on his employments prospects.

[57] There was also no evidence led at trial about the Appellant’s employment prospects, the type of work that the Appellant sought to obtain, or the skills that he had to get a job in Canada. The only evidence that the Appellant led about any attempt to get a job in Canada was a “training” session that he attended at Tim Horton’s. However, no details were provided about what the training entailed, the nature of the position, the skills the Appellant possessed to get the position at Tim Horton’s, whether the Appellant would otherwise have obtained a job there, or how much the job would have paid. In this respect, the record consisted of no more than a “vague possibility” that the Appellant might have secured a job at Tim Horton’s but for the injuries he sustained in the accident.

[58] Moreover, Dr. Blitzer and Dr. Berbrayer, who testified that the Appellant had restrictions on his ability to work due to his injuries, could only speculate about the type of work that the Appellant might be qualified to perform. They both found that although the Appellant had done physical work in the past (in Russia), he could not engage in this type of physical work after the accident. Dr. Blitzer also speculated that if the Appellant had the skills to work in an office, there would be limitations to his ability to do so.

[59] However, the evidence was that the Appellant had not been in the shipping and receiving business since he was in Russia, in 2004 – five years before the accident. Any suggestion that the Appellant could have otherwise obtained a job in shipping and receiving (or some other physically demanding work), or that he could have worked in an office, amounted to nothing more than speculation. As the Court of Appeal found in B.(M.), “[s]peculative evidence is not reasonable evidence.[^26]

[60] While there is a different standard required for proving future income loss, there must still be a “real and substantial risk” of a future loss in order for the question to be put to the jury.[^27]

[61] In the instant case, the Trial Judge did not commit a palpable and overriding error in identifying the deficiencies in the pleading and in concluding that there was insufficient evidence to put the loss of income questions to the jury. I agree with the Respondents’ submission that the evidence respecting the Appellant’s employment prospects was non-specific and speculative at best and non-existent at worst.

[62] The Trial Judge, as gate keeper, identified the deficiency and lack of sufficiency in the evidence. Those concerns can be found in the Respondent’s compendium at page 73, 78, 79, 91 and 92. The Trial Judge correctly identified that it would be problematic to require a jury to try and calculate the income loss without evidence before them of income or expectation of income. The Trial Judge was very much aware of the distinction between a general and special damage claim. He was clear that there must be some admissible evidence, upon which a jury properly instructed, could find a claim and calculate the claim for income loss. The Trial Judge was of the view that there was no evidence whatsoever on the record to permit a proper question on income loss to go to the jury. Based on the evidence, he found there was no admissible evidence on which this jury, if properly instructed, could find and calculate claims for past and future loss of income.

[63] I find the Trial Judge was in the best position to make such a determination and his decision ought to be given deference by this Court.

[64] Finally, although the Appellant cites case law for the proposition that expert evidence may not be required to calculate damages for lost income and that the court may take judicial notice of the minimum wage and the discount rate. I find that judicial notice is insufficient to fill the vacuum in the evidence respecting the Appellant’s alleged loss. In respect of this issue, the Trial Judge committed no error because the evidence was insufficient to permit the questions relating to loss of income to go to the jury. The evidence respecting any income loss was at best vague and speculative. It did not amount to reasonable evidence on which a jury could assess damages.

3. Did the Trial Judge err in his charge to the jury on the issues of quantum of damages, mitigation and hearsay evidence?

[65] The Appellant submits that the Trial Judge made three errors in his charge to the jury. Specifically, the errors occurred when the Trial Judge dealt with quantum of damages, mitigation and hearsay evidence. As a result, the Appellant argues that a new trial is justified because the case was not fairly put to the jury and caused a misapprehension as to the legal principles.

[66] On March 18, 2015, the Trial Judge gave his charge to the jury. There were no objections to the charge. However, on appeal, the Appellant takes issue with the Trial Judge’s charge relating to quantum of damages, mitigation and hearsay evidence.

[67] With respect to the quantum of damages, the Appellant makes three arguments:

(i) First, the Appellant submits the Trial Judge breached the principles of natural justice by failing to give the Appellant an opportunity to make submissions on the range proposed by the Trial Judge. The Respondents submit the “natural justice” argument cannot succeed because the Trial Judge asked for the parties’ proposed ranges and included them in the charge. Also, the jury was still the decider in determining the quantum of damages.

(ii) Second, the Appellant submits the Trial Judge erred in providing the jury with his “opinion” respecting damages rather than “guidance.” The Respondents submit that the Court of Appeal has affirmed that a trial judge retains a “discretionary power” to offer guidance in respect of damages, (Lyness R. v. Wang, 2010 ONCA 741). In this case, the Respondents argue that neither statute nor case law would restrict the discretion of the Trial Judge. The Respondents submit that there is “no doubt” that the jury understood that the Trial Judge was offering only guidance. This was confirmed by the result, as the jury returned with a general damages award of $25,000, which was below the amount suggested by the Trial Judge and Appellant, but above that of the amount suggested by the Respondents.

(iii) Third, the Appellant submits that the Trial Judge did not state expressly that the jury was not bound to follow his view in the portion of his charge on the ranges. The Respondents submit that the Trial Judge’s instruction with respect to general damages was made clear at the outset and that throughout the charge it was up to the jury to decide the amount. In his discussions with counsel, leading up to and after the Loss of the Income Ruling, the Trial Judge also raised the concern that the loss of income had not been sufficiently pleaded in the Statement of Claim, and that the claim could now be statute-barred, but made it clear that the primary basis for the Ruling was “the fact that there was no evidence tendered before the court to allow the jury, if proper instructed, to come to a reasonable verdict and calculation”.[^28]

(a) Quantum of Damages

[68] Both the Appellant’s counsel and the Respondents’ counsel suggested ranges for general damages to the jury. In his charge, the Trial Judge told the jury that if it accepted Mr. Ayub’s theory of the case, the range suggested by Mr. Ayub’s counsel of $55,000 to $65,000 was “somewhat higher than reasonable” and that “a reasonable range for general damage[s] would be $30,000 to $40,000”. The Trial Judge’s instruction with respect to the suggested ranges was as follows:

... On the issue of general damages for pain and suffering, there is no formula I can give you which will guide you in fixing an appropriate sum. Counsel are not obliged to provide the jury with a range of what they consider to be appropriate, it is their choice. When counsel do make submissions on damages, I must tell you that this is put forward for your guidance only and, of course, you are not bound to accept it. In this case, plaintiff’s counsel has suggested that general damages ought to be awarded in the range of $55,000 to $65,000. On the other hand, defence counsel has suggested that the number for general damages, or the range, would be zero to $20,000. To a large extent, your answer to the questions of what is appropriate in an amount for general damages will rest on which theory of the case you accept, based on the facts as you find them.

I will tell you that if you accept the plaintiff’s theory of the case that the 2009 motor vehicle collision has had the effect on the life of Mr. Ayub as the plaintiff’s counsel suggests to you, then the number suggested by him for general damages are somewhat higher than reasonable, and a reasonable range for general damages would be $30,000 to $40,000. If, however, you are persuaded that the defence theory of the case is the correct one, then you might well find that the general damages ought to be assessed at his suggested range on the basis that the plaintiff suffered little or no new injuries in the 2009 collision.

I stress you are not bound to follow what either lawyer has suggested to you for the general damage award, it is for you to decide. You will consider the evidence from the plaintiff and the other witnesses and from the experts about the nature and the extent of the injuries, what, if any, limitations Mr. Ayub has been left with and the impact they have had on and will centime to have, if any, on his life.[^29] [Emphasis added].

[69] I find the trial judge did not err in his charge to the jury in respect of quantum of damages. The range of general damages that he proposed to the jury was an appropriate exercise of his discretion, pursuant to s. 118 of the Courts of Justice Act. The Trial Judge did not breach the principles of natural justice by failing to give the Appellant an opportunity to make submissions on the range proposed by the Trial Judge. The “natural justice” argument cannot succeed for two reasons;

(a) The Trial Judge asked for and received the parties’ proposed ranges before he gave his charge to the jury.

(b) The Trial Judge was not the “decider” in this case – it was up to the jury, not the Trial Judge, to determine the quantum of damages. The Trial Judge made no adverse finding to a party without giving that party an opportunity to respond.

[70] Further, the Trial Judge did not err by providing the jury with his “opinion” respecting damages, rather than “guidance”. In this case, it was within the Trial Judge’s discretion to provide guidance to the jury under s. 118 of the Courts of Justice Act, in the manner in which he did. Although, the Trial Judge did not expressly state that the jury was not bound to follow his view on the ranges, there is no doubt that the jury understood that the Trial Judge was offering guidance only. Indeed, the Trial Judge’s instruction with respect to general damages made clear at the outset that it was up to the jury to decide the amount. Further, the jury charge was replete with statements by the Trial Judge that the jury was not bound by his findings or observations and that the jury – not the Trial Judge – was the decider of the facts.

[71] Finally, the fact that the jury understood properly its function is borne out by what actually happened. The jury returned an award of $25,000 for general damages – which was above the amount suggested by counsel for the Respondents and below the amount suggested by the Trial Judge. This confirms that the jury was aware that it was not required to follow the ranges suggested by either counsel or the Trial Judge.

Accordingly, the Trial Judge committed no error in respect of the issue of quantum of damages, as it relates to his charge.

(b) Mitigation

[72] The Appellant submits that the Trial Judge’s failure to clarify that the onus to prove mitigation rests with the defending party amounts to a substantial wrong and a miscarriage of justice sufficient to warrant a new trial. [^30]

[73] The Respondents note that they did not make an allegation that the Appellant had failed to mitigate damages, nor did it form any part of their theory of the case.[^31] The Respondents submit that since the issue of mitigation was only raised in the closing address of the Appellant’s counsel, the Trial Judge was not required to charge the jury on the burden of proof for a defence that was not raised.[^32]

[74] Although the Appellant is correct in arguing that the burden of proof is on a defendant to prove and allegation that a plaintiff has failed to mitigate his damages, [^33] in this case, the Respondents made no such allegation.

[75] Without the loss of income question, the jury was only required to consider the questions of general damage and future healthcare expenses. Nowhere in the Respondents’ closing address was there any mention of mitigation, or more specifically, a failure on the part of the Appellant to mitigate his general damages or his future healthcare expenses. [^34] In this respect, the Respondents’ theory of the case was that the Appellant had suffered no damages; not that he had failed to mitigate his damages.

[76] In fact, the issue of mitigation was only raised by the Appellant’s counsel in his closing address, in which he submitted to the jury that the evidence demonstrated that the Appellant “has been attempting to mitigate his damages and get better”. [^35] It was only because the Appellant’s counsel raised mitigation that the Trial Judge included it in his instruction at all.[^36]

[77] This case is therefore distinguishable from this Court’s decision in Branco v. Epshtein, on which the Appellant relies[^37]. In Branco, the defence clearly alleged that the plaintiff failed to use reasonable efforts to return to work or to secure suitable comparable employment[^38]. Accordingly, this Court found that the mitigation was a “significant issue” on the facts[^39].

[78] As there were no allegation by the Respondents that the Appellant had failed to mitigate his damages in this case, it was unnecessary for the trial judge to charge the jury on the burden of proof with respect to the failure to mitigate. Put simply, the Trial Judge did not err failing to charge the jury on the burden of proof for a defence that was not raised.

(c) Hearsay Evidence

[79] The Appellant submits that the Trial Judge erred by misleading the jury into believing that the jury was to decide the weight of expert testimony, without qualifying that statement to indicate the rules around hearsay[^40]. In particular, the Appellant argues that Dr. Devlin’s statement that the Appellant had returned to complete his ESL program after the motor vehicle accident was not supported by the evidentiary record[^41]. The Appellant submits that this runs contrary to established case law which goes against admitting untested opinion evidence and requiring a trial judge to warn the jury of such hearsay evidence[^42].

[80] The Respondents submit that the Trial Judge indicated in two places in his charge that the statements made were hearsay, and that the charge to the jury conveyed that opinions contained in medical reports or clinical notes that were filed (where authors are not called) constitute hearsay[^43]. Thus, the Respondents argue no reversible error has been identified by the Appellant.

[81] First, as I have already indicated, the statements in issue were not hearsay. They were admissions. Second, if they were hearsay, I find that the Trial Judge’s charge on hearsay was appropriate and conveyed to the jury the applicable legal principles.

[82] The Trial Judge made clear in two parts of his charge that statements made by the Appellant to the experts were hearsay[^44]. His charge also adequately conveyed to the jury that opinions contained in the medical reports and clinical notes that were filed (where the authors were not called) were hearsay and could not be admitted for the truth of their contents.[^45] The Appellant has not identified any reversible error in respect of this aspect of the Trial Judge’s charge.

4. If the Trial Judge committed any errors, should a new trial be ordered?

[83] I find that the Appellant has failed to establish that a substantial wrong or miscarriage of justice has occurred to warrant a new trial. Even if the Trial Judge committed an error, the jury understood the issues, the law, and its fact-finding function. The Appellant has not raised any grounds that would warrant this Court’s intervention on appeal.

CONCLUSION

[84] For these reasons, the Appellant’s appeal is dismissed. As for costs, the parties have agreed that the successful party shall be entitled to the amount of $8000 all inclusive. Accordingly, the Respondents are awarded costs of the appeal, fixed in the amount of $8000 all inclusive, payable by the Appellant.

DiTOMASO J.

I agree:

SACHS J.

I agree:

C. HORKINS J.

Released: 20161027

[^1]: 2005 SCC 25 at para. 4; see also paras. 51-56, 67-75 (per Fish, J. for the majority)

[^2]: Robinson v. Sisters of St. Joseph of the Diocese of Peterborough in Ontario, 1999 2199 (ON CA), [1999] O.J. No. 530 (C.A.) at para. 4; see also Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351 at para. 16

[^3]: Baines v. Hehar, 2012 ONSC 6775 (Div. Ct.) at para. 12

[^4]: Insurance Act, R.S.O. 1990, c. I. 8, ss. 267.5(3) and (5); Meyer and Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) at para. 50

[^5]: Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96, s. 4.2(101

[^6]: See Appellant’s Factum, paras. 110-112

[^7]: Threshold Ruling, March 20, 2015, paras. 6-14, 41 [Compendium, Tab 1, pp. 2-6, 9]

[^8]: See Appellant’s Factum, paras. 35-38, 106, 108-109

[^9]: See Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th ed. (LexisNexis Canada Inc.: Markham, Ontario, 2014) at § 19.02 [Law of Evidence] (“A formal admission may be made … (3) by an oral statement made by counsel at trial, or even counsel’s silence in the face of statements made to the Trial Judge by the opposing counsel with the intention that the statements be relied on by the Trial Judge”)

[^10]: See Appellant’s Factum, paras. 32-33, 113

[^11]: Threshold Ruling, March 20, 2015, para. 24 [Compendium, Tab 1, p. 7]

[^12]: Evidence of M. Ayub, Transcript, March 12, 2015, pp. 35-36 [Compendium, Tab 11, pp. 34-25]

[^13]: See Appellant’s Factum, paras. 39-41, 113

[^14]: Evidence of Dr. D. Berbrayer, Transcript, March 16, 2015, pp. 50-51 [Compendium, Tab 22, pp. 69-70]

[^15]: See Appellant’s Factum, Para. 114

[^16]: See Threshold Ruling, March 20, 2015, paras. 28-33 [Compendium, Tab 1, pp. 7-8]

[^17]: See Threshold Ruling, March 20, 2015, para. 44 [Compendium, Tab 1, p. 10]

[^18]: See R. v. Waite, 2014 SCC 17 at paras. 3 ; Law of Evidence at §6.404 (“Admissions of a party are admissible against him or her in both civil and criminal cases”)

[^19]: See Threshold Ruling, March 20, 2015, para. 35 [Compendium, Tab 1, p. 8]

[^20]: See Appellant’s Factum, para. 25

[^21]: Threshold Ruling, March 20, 2015, para. 34 [Compendium, Tab 1, p. 8]. Counsel for the Respondents stated on the Threshold Motion, “The specific function impaired, I concede there is evidence of that. And the importance of that, I would also concede is established”. However, the concession by the Respondents was clarified by the Trial Judge immediately after the statement was made: see Threshold Submissions, Transcript, March 18, 2015, pp. 2-3 [Compendium, Tab 25, pp. 103a-b]. The Respondents position with respect to the importance of the function was understood and relied upon by the Trial Judge as follows: [I]nsofar as the plaintiff’s impairments occasioned by chronic pain meeting the definitions of “important”, the defendants submit that the plaintiff was not actually rendered incapable of performing the essential tasks of his regular training or daily living activities”: Threshold Ruling, March 20, 2015, para. 36 [Compendium, Tab 1, p. 8]

[^22]: Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O.Reg. 461/96, s. 4.2(1)2)

[^23]: Evidence of Dr. D. Berbrayer, Transcript, March 16, 2015, pp. 50-51 [Compendium, Tab 22 pp. 69-70]

[^24]: B.(M.) v. 2014052 Ontario Ltd., 2010 ONCA 135

[^25]: B.(M.) v. 2014052 Ontario Ltd., supra, at para. 51

[^26]: B.(M.) at para. 65

[^27]: Schrump et al. v. Koot et al. (1977), 1977 1332 (ON CA), 18 O.R. (2d) 337 para. 22 (C.A.)

[^28]: See Respondents Compendium, Tab 23, page 95

[^29]: Jury Charge, Transcript, March 18, 2015, pp. 78-79

[^30]: Appellant’s Factum at para. 62.

[^31]: Respondents’ Factum at paras. 84-85.

[^32]: Respondents’ Factum at paras. 86, 88.

[^33]: See Appellant’s Factum, para. 62.

[^34]: See Closing Submissions (Plaintiff), Transcript, March 18, 2015, p. 17

[^35]: Closing Submissions (Plaintiff), Transcript, March 18, 2015, p. 17

[^36]: See Jury Charge, Transcript, March 18, 2015, p. 45 (“You heard mitigation of damages in closing submissions...”)

[^37]: 2006 CarswellOnt 3579 (Div. Ct.) [Branco]

[^38]: See Branco at pp. 29-31

[^39]: Branco at para. 78

[^40]: Appellant’s Factum at para. 101

[^41]: Appellant’s Factum at para. 102

[^42]: Appellant’s Factum at paras. 80-81

[^43]: Respondents’ Factum at para. 89

[^44]: Jury Charge, Transcript, March 18, 2015 pp. 29-30, 41-42

[^45]: Jury Charge, Transcript, March 18, 2015, p. 42

Mohammad Mohammad Ayub v. Yi Wen Sun and 1638940 Ontario Inc., 2016 ONSC 6598

Case Summary

INTRODUCTION

BACKGROUND

ISSUES

COURT’S JURIsdICTION

STANDARD OF REVIEW

1. Did The Trial Judge err in the Threshold Motion Ruling?

2. Did the Trial Judge err in the Loss of Income Ruling?

3. Did the Trial Judge err in his charge to the jury on the issues of quantum of damages, mitigation and hearsay evidence?

(a) Quantum of Damages

(b) Mitigation

(c) Hearsay Evidence

4. If the Trial Judge committed any errors, should a new trial be ordered?

CONCLUSION

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 3