Andrew Mikolic v. David Tanguay, Corrie Albano and Aviva Canada Inc., 2016 ONSC 69

CITATION: Mikolic v. Tanguay, 2016 ONSC 69

DIVISIONAL COURT FILE NO.: 464/14 DATE: 20160105

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MOLLOY, SANDERSON, SACHS JJ.

BETWEEN:

ANDREW MIKOLIC Appellant

– and –

DAVID TANGUAY, CORRIE ALBANO and AVIVA CANADA INC. Respondents

F.J. Burns, for the Appellant Chris G. Paliare, Andrew Lokan, Respondent, Corrie Albano

HEARD at Toronto: September 15, 2015

REASONS FOR DECISION

M.A. SANDERSON J.

1This is an appeal by Andrew Mikolic (hereafter "the Appellant/Plaintiff") from the judgment of Mr. Justice Arrell dated March 3, 2014, with reasons reported at Mikolic v. Tanguay, 2014 ONSC 1369. after trial by jury between October 7, 2013, and October 23, 2013. Before deductions for contributory negligence of 20%, and for statutory accident benefits, the jury awarded Mr. Mikolic a total of $100,000 under the following heads of damages: non-pecuniary losses of $35,000, past loss of income of $20,000, future loss of income of $30,000, cost of future care of $15,000.

2Counsel for the Appellant/Plaintiff advanced two primary grounds of appeal: (a) the jury's award for loss of income and cost of future care was inordinately low; and (b) in all the circumstances here, the trial judge erred in failing to strike the jury.

3The Appellant/Plaintiff asks this Court to set aside the judgment and either to substitute its own assessment of damages or to order a new trial.

Ground A - Was the Award of the Jury Inordinately Low?

4The parties agreed that the test to be applied is whether the jury's award of damages was so plainly unreasonable and unjust that no jury, properly instructed and acting judicially on the evidence as a whole, could have reached the verdict that it did: McLean v. McCannell (1937), 1937 1 (SCC), [1937] S.C.R. 341 (S.C.C.), Lazare v. Harvey, 2008 ONCA 171, leave to appeal refused, [2008] S.C.C.A. No. 320.

The Evidence

5At the time of the accident on June 10, 2005, the plaintiff was 34 years old.

6It was uncontroverted that the Plaintiff fractured his left collarbone in the accident. He gave evidence that he was knocked unconscious and that he suffered from a mild brain injury and/or post-traumatic stress disorder and from chronic pain, depression, and cognitive defects.

7At trial, the medical evidence included the evidence of the Plaintiff's family doctor and of a number of other treating doctors and expert witnesses.

8The evidence was conflicting as to whether the Plaintiff had suffered a head injury, and the extent and severity of the psychological after effects and ongoing pain he suffered in the accident.

9There was conflicting evidence as to how his injuries and pain had affected his capacity to work and as to whether he would be able to work competitively in the future.

10On one hand, there was some evidence that the Plaintiff had recovered quickly after the accident. For instance, Dr. Martin, an orthopedic surgeon, gave evidence that within a year of the accident, his broken collarbone had completely healed. The Plaintiff had a full range of motion and no objective evidence of any other significant problems.

11Dr. Semple, a psychologist who examined the Plaintiff, gave evidence that, in June of 2008, he presented in a normal fashion and exhibited no observable pain behaviours.

12On the other hand, the Plaintiff gave evidence about his unresolved pain and about the physical and emotional problems the accident had caused him. He said that they had not only prevented him from working but had also severely and adversely affected the quality of his life.

13The Plaintiff gave evidence that before the accident he had been a sociable and outgoing man and that he had been in excellent health. He and his common law spouse had enjoyed golfing, swimming, hiking, riding motorcycles and fishing. After the accident he could no longer engage in those activities.

14Before the accident, he had been working as a self-employed building contractor.

15The Plaintiff gave evidence that before the accident he had performed ten to fifteen contracting jobs per year and had managed three rental properties. Although his net reported annual income between 2000 and 2004 shown on his tax returns was between $3,259 and $6,852, he said that he regularly under-reported his income to Revenue Canada.

16There was evidence that in 2005 a contractor with his drywalling skills could have earned over $62,000, and that in 2010 he could have earned $27.90 to $34.84 per hour. There was also evidence that the Plaintiff could have earned a minimum of $25 to $40 per hour.

17Although the Plaintiff gave evidence that he was incapable of working after the accident, the jury also heard evidence that, in August of 2011, an advertisement for handyman services of a type that the Plaintiff had performed pre-accident appeared on Kijiji. Although the ad had originated from his computer, the Plaintiff said that his common law spouse had used his computer to place the ad on behalf of another handyman.

Credibility and Validity Issues

18At trial, counsel for the Defendant challenged the Plaintiff's credibility, the reliability of his evidence, and the accuracy of the information that the Plaintiff had provided to his treatment providers and other experts who his counsel had called to give evidence about his condition, diagnosis and prognosis. Counsel for the Defendant challenged the conclusions of those medical professionals on the basis that they had been based on inaccurate information that the Plaintiff had provided to them.

19There was conflicting expert evidence before the jury on the results of validity testing that had been administered to the Plaintiff.

20On one hand, Dr. Semple gave evidence that the Plaintiff had passed all validity tests that had been administered to him.

21On the other hand, Dr. MacNiven gave evidence to the effect that she was wary of the accuracy of information that the Plaintiff had provided to her. She was of the view that the validity tests she had administered to the Plaintiff reflected elevated scores on clinical syndrome scales.

The Award for Non-Pecuniary Damages

22Counsel for the Appellant/Plaintiff submitted to the jury in his closing address that it should award the Plaintiff non-pecuniary damages in the range of $125,000 to $150,000. The trial judge charged the members of the jury that that range would not be unreasonable if they accepted the evidence of the Plaintiff and the witnesses his counsel had called to give evidence.

23Counsel for the Defendant/Respondent suggested to the members of the jury that they should award the Plaintiff non-pecuniary damages in the $20,000-$35,000 range. The trial judge charged the members of the jury that that range would not be unreasonable if they accepted the evidence of the doctors who had been called to give evidence by counsel for the Defendant.

24Counsel for the Plaintiff made no objection to the charge either at trial or on appeal.

25Counsel for the Respondent submitted – and I agree – that the jury's award of $35,000 for non-pecuniary damages is suggestive that the jury made factual findings that the Plaintiff was far less incapacitated than he claimed to be.

The Award for Loss of Earnings

26The jury awarded the Plaintiff $20,000 for past loss of income and $30,000 for future loss of income.

27Counsel for the Plaintiff submitted that the jury's award for past loss of earnings represented a loss of income of about $2,500 annually to the time of the trial. If the Plaintiff were assumed, but for the accident, to have retired at age 65, the award of $30,000 for future loss would have represented a loss of less than $1,500 per year.

28He submitted that those amounts were inordinately low on their face, all out of proportion to his injuries as described in the evidence as a whole, especially given that the Plaintiff had not been able to work at all since the accident, and given all of the evidence about his inability to work in the future.

29Counsel for the Respondent submitted-and I agree- that the jury's awards for loss of earnings is suggestive that the jury made factual findings that he was more able to work than he claimed to be.

30In my view, there was evidence upon which a jury acting judicially and having regard to the evidence as a whole could have reached the assessment it did for past and future loss of earnings.

31There was evidence, including the evidence of Drs. Martin and Semple mentioned earlier, upon which the jury could have disbelieved the Plaintiff's evidence about his inability to work and about the extent of his disability.

32It was open to the jury to conclude on all of the evidence before it, taken as a whole, including the Kijiji advertisement placed from the Plaintiff's computer in 2011, that the Plaintiff was capable of working.

The Award for the Cost of Future Care

33Although Dr. Connell gave evidence that the Plaintiff could benefit from a US-based programme to treat his chronic pain that would have cost about US $50,000, Dr. Waisman gave evidence that acceptable alternatives are offered in Canada, some of which are OHIP funded.

34In my view, there was evidence upon which a jury, acting judicially and having regard to the evidence as a whole, could have concluded that the cost of future care would be $15,000. It was open to the jury to accept the evidence of Dr. Waisman that the Plaintiff could receive appropriate treatment in Canada for significantly less than US $50,000.

35Therefore, the Plaintiff's appeal on the basis that the jury's award was inordinately low must be dismissed.

36In light of this conclusion, there is no need for us to consider the Plaintiff's submission that, under s. 119 of the Courts of Justice Act, R.S.O. 1990, c. C.43, this Court should substitute its own assessment for the jury's damages assessment.

Ground B - The Trial Judge Erred in Failing to Discharge the Jury

37There was uncontradicted evidence that, on the fourth day of the trial, a student of counsel for the Defendant had lunch with an acquaintance of his that turned out to be a juror in this case. That juror brought along another juror. When he arrived at lunch, the student had no idea that his acquaintance was a juror in his principal's case. When he learned at lunch that his acquaintance was a juror in an ongoing case, the student put two and two together.

38The student had had no involvement in the trial or preparation of this case. The student and the two jurors did not discuss the specifics of the case during their lunch together.

39After lunch, the student advised his principal about what had happened. His principal advised other counsel and the trial judge.

40The trial judge then spoke with the student and met with all counsel in chambers.

41Counsel for the Appellant/Plaintiff submitted that he suggested to the trial judge in chambers that the jury should be struck. A discussion ensued. Counsel for the Defendant advised that he wanted to keep the jury.

42After listening to counsel, the trial judge commented that trial by jury was an important right. He provided counsel for the Plaintiff with two options: either (1) he could elect a mistrial and proceed with a trial before a different jury or (2) he could proceed with the same jury with the trial judge's assurances that he would admonish the two jurors who had had lunch with the student.

43Counsel for the Plaintiff submitted that, because he had offered the Plaintiff the option of a mistrial, the trial judge must have concluded that the incident had posed a serious risk to the fairness of the trial.

44I do not accept that submission. If the trial judge had perceived that the incident had posed a serious risk to the fairness of the trial, I am of the view that he would have ordered a mistrial.

45I am of the view that the trial judge offered to order a mistrial if the Plaintiff and/or his counsel perceived that continuing with the jury in the circumstances would be prejudicial or unfair.

46The Plaintiff and his counsel opted to continue the trial with the same jury.

47Counsel for the Plaintiff never brought a formal motion to strike the jury. He did not prepare or file any written materials setting out how proceeding with the same jury would be unfair or prejudicial to the Plaintiff.

48It would have been preferable for the discussion about striking the jury to have taken place in open court and for any evidence about any alleged prejudice to the Plaintiff to have been included in the trial record. However, I am of the view that in all the circumstances here, the failure of the trial judge to strike the jury does not warrant the relief that Counsel for the Appellant/Plaintiff is seeking.

Disposition

49The appeal is dismissed with agreed costs of $7,000.

___________________________ Sanderson J.

Molloy J.

Sachs J.