Court File and Parties
CITATION: Montague v. TTC, 2018 ONSC 3067
DIVISIONAL COURT FILE NO.: 359/17 DATE: 20180518
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Thorburn and Pomerance JJ..
BETWEEN:
YVONNE MONTAGUE
Self-Represented
Plaintiff/ Appellant
– and –
TORONTO TRANSIT COMMISSION
Andrew Davidson, for the Respondent
Defendant/Respondent
HEARD at Toronto: May 15, 2018
BY THE COURT
NATURE OF PROCEEDING
[1] This is an appeal from the jury verdict dated July 28, 2017 dismissing the Appellant’s negligence claim against the Respondent dated May 26, 2017 and the decision respecting costs dated July 28, 2017.
BACKGROUND
[2] The Appellant, Yvonne Montague was 70 years old at the time of the alleged incident. She claims that on July 27, 2012, she boarded a Toronto Transit Commission (“TTC”) bus with her shopping cart and sat in the priority seating at the front of the bus. She exited the rear of the bus and claims that, as she stepped out of the bus, “the door closed on my left hand with the shopping cart and my left foot.” She claims she suffered an accident that occurred because of the Respondent’s negligence.
[3] A jury trial took place from May 23rd to May 26th, 2017. The Appellant testified on her own behalf and called Dr. Adatia, her family physician. The Appellant prepared a summons to witness for three additional witnesses. Those summonses were quashed by Cavanagh J. at the commencement of trial.
[4] The Respondent called three witnesses: Soble, the driver of the bus; Dobson, the video services coordinator at the TTC and Hinderyckx, a TTC engineering technologist. The Respondent’s theory of the case was that the accident did not happen.
[5] No video was produced and no witnesses were called.
[6] The jury determined that the Respondent was not negligent in causing or contributing to the incident. The jury found that the Appellant’s negligence caused or contributed to the incident and, in particular, “We the jury, believe the plaintiff, Ms. Montague knowing her own physical limitation, put herself in a potentially hazardous situation. She assessed her environment before exiting the bus, and decided to proceed out the rear door.” The jury further assessed the Appellant’s damages at $0 regardless of the determination of negligence.
THE ISSUES
[7] The issues raised by the Appellant are as follows:
i. Did the trial judge err in quashing the summons for Garry Leary, Joseph Sommer, and John Gayle;
ii. Did the trial judge act unfairly in allowing into evidence information regarding the Plaintiff’s prior medical history including her pre-accident condition, and information concerning the length of time video was kept by the TTC;
iii. Did the trial judge err in telling the Appellant she need not call a witness in chief when that witness would be called as a witness for the Respondent;
iv. Did the trial judge misstate the law of negligence and/ or advise the jury that the questions were done in consultation with both parties when they were not;
v. Did the jury reach an unreasonable verdict;
vi. Was the jury biased;
vii. Was the Respondent’s closing submission inappropriate; and
viii. Were costs unreasonable?
JURISDICTION
[8] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 19(1.2)(d) of the Courts of Justice Act. Section 19 (1.2)(d) provides that where an appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect of a final order,
…(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) [or $50,000] and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b).
[9] The Appellant sought $150,000 in general damages but the Jury determined that even if the claim had been allowed, the damages award would have been assessed at $0. As such, this court has jurisdiction to hear this appeal.
STANDARD OF REVIEW
[10] The standard of review on an appeal involving a question of law is correctness. The standard of review for findings of fact is palpable and overriding error. The standard of review for findings of mixed fact and law is on the spectrum between those depending on the nature of the issue. Great deference is accorded to findings of fact made by a jury. (Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 30.)
[11] As these are questions of mixed fact and law, deference is owed.
KEY POSITIONS OF THE PARTIES
Issue 1: Did Cavanagh J. err in quashing the summons for Garry Leary, Joseph Sommer and John Gayle?
[12] The Applicant argues that Cavanagh J. erred in quashing the summons for Leary, Sommer and Gayle. Leary is a retired TTC claims adjuster, and Sommer and Gayle are Ontario Privacy Commission employees.
[13] The Appellant sought to call Gary Leary as she accused him of forging her signature on a statement and a consent form for the hospital. She sought to call the privacy commission employees because the Information and Privacy Commission determined that the complaint should not proceed through the complaints process.
[14] Cavanagh J. correctly determined that the summonses were not properly served and more importantly, the witnesses to be called did not have relevant evidence to provide because this was a claim of personal injury not a breach of privacy claim.
[15] None of these witnesses had relevant evidence to adduce in respect of the Appellant’s alleged fall or her injuries which were the subject of her claim and the trial judge properly determined that it would be confusing for the jury to hear allegations that were not part of this proceeding.
[16] The trial judge’s reasons were clear and reasonable.
Issue 2: Did Cavanagh J. make evidentiary or procedural errors?
[17] The Appellant objects to a variety of decisions Cavanagh J. made regarding which witnesses and exhibits would be admitted.
[18] The Appellant claims the trial judge improperly permitted the Respondent to admit the following evidence: the Appellant’s pre-accident medical condition, Dr. Adatia’s notes about her pre-accident condition and a disability certificate signed by the Appellant.
[19] We do not agree. The Appellant’s pre-accident condition was relevant to the assessment of liability and damages and therefore evidence relating to her pre-accident medical condition was properly admitted.
[20] The Appellant brought an earlier claim for personal injury against the TTC for another incident that occurred in 2009 and the areas of injury were the same. She brought an accident benefit claim for the November 2009 accident which was and was properly introduced by the Respondent at trial. She also claimed she slipped and fell at the Bank of Nova Scotia in 1991.
[21] The Appellant’s medical records were in the hands of Dr. Adatia at the time of trial, Dr. Adatia was her family doctor and Dr. Adatia was therefore properly called as a witness at trial.
[22] A Plaintiff’s existing medical condition as the time of accident is relevant as the defendant need not put the plaintiff in a position that is better than she was before the accident. (Athey v. Leonati, 1996 183 (SCC), [1996] 3 SCR 458.)
[23] For these reasons we agree that the Appellant’s pre-accident medical history was properly introduced at trial.
[24] The Appellant also claims the trial judge improperly permitted the Respondent to admit the Information and Privacy Commissioner’s Report.
[25] We do not agree. The Report was properly admitted at trial to explain to the jury why no video surveillance was available after 15 hours as this was part of their retention policy developed to accord with the retention policy provided in the Privacy Commissioner’s report. We note that in Leon v. Toronto Transit Commission, 2014 ONSC 1600 aff’d 2016 ONSC 3394 (Div. Ct.) the judge was permitted to explain the non-existence of the video to the jury.
Issue 3: Did the trial judge err in advising the Appellant she need not call a witness when that witness would be called as a witness for the Respondent?
[26] The Appellant claims the trial judge improperly prevented the Appellant from calling Mr. Soble as one of the Appellant’s own witnesses.
[27] Mr. Soble was a retired TTC bus driver. The trial judge pointed out to the Appellant that the Respondent intended to call Mr. Soble as a witness and that “It’s usually better for a person to be able to cross-examine a witness…If you cross-examine Mr. Soble, it means you can ask him questions in a leading way that is more effective, often, especially if it’s somebody who you are not sure whether they will be – you haven’t had a chance to meet with them, perhaps and you don’t know what they’re going to say. I’d leave it to you but…” The Appellant replied, “Yes, your Honour. I will take your advice.”
[28] The trial judge patiently and properly explained to the witness the advantage of cross examining as opposed to examining in chief. There was nothing improper in his explanation. On the contrary, it permitted the Appellant to make an informed choice.
Issue 4: Did the trial judge misstate the law of negligence and/ or advise the jury that the questions were done in consultation with both parties when they were not?
[29] The Appellant argues that Cavanagh J. erred in his charge to the Jury by advising them that they could attach little or no weight to Dr. Adatia’s evidence in deciding the case. She relies on the transcript of proceedings dated May 26 at lines 15-30 in support of her allegation. A review of the transcript shows that the trial judge reiterated the standard jury instructions that the jury should consider the education, training and experience of the expert and the facts upon which the expert opinion is based. The trial judge told the jury that it was up to them to decide how much or how little to rely on the opinions expressed by the expert. There was no error in the charge to the jury on this point.
[30] The Appellant argues that Cavanagh J. further erred in his charge to the Jury by misstating the law of negligence, and advising the Jury the questions were determined in consultation with the parties.
[31] The trial judge advised the jury that,
“The question you must ask is, did Mr. Soble and the TTC use all due, proper and reasonable care and skill in the circumstance to avoid or prevent injury to the passenger, Ms. Montague. If the answer is no, then there is no – - then there is negligence. If the answer is yes, there is no negligence.”
[32] This statement accurately characterizes the standard of care negligence. (Meady v. Greyhound Canada Transportation Corp., 2015, ONCA 6.)
[33] At the beginning of trial both parties submitted their proposed questions for the jury to the Court. The Appellant’s questions were not in conformity with the Rules. They included things such as having an incorrect title of proceedings and failure to identify the parties. The Respondent’s questions were taken from the forms in Ontario Courtroom Procedure, 4th edition (Toronto: LexisNexis Canada Inc., 2016). The Respondent’s questions were therefore used by the trial judge.
[34] The questions must be in the proper form and there was nothing improper in the trial judge using questions in the appropriate form.
Issue 5: Did the Jury reach an unreasonable verdict?
[35] The Appellant claims that the jury verdict was clearly unreasonable and correctly asserts that where a verdict is clearly unreasonable, the verdict will be overturned.
[36] The Respondent argues there was sufficient evidence for the Jury to conclude that there were no damages.
[37] We agree with the Respondent that the jury heard from the Appellant, her family doctor and the Appellant called no evidence regarding the operation of the rear door of the TTC vehicle. There was sufficient evidence upon which the jury could reasonably conclude that there was no negligence on the part of the TTC. (McCannell v. McLean, 1937 (SCC)).
Issue 6: Was the Jury tainted by bias?
[38] The Appellant alleges that the foreperson of the jury testified for the TTC in another proceeding.
[39] The Appellant offered no evidence to support this serious allegation. As such, this allegation must fail.
Issue 7: Was the Respondent’s closing address to the jury inappropriate?
[40] The Appellant argues that the Respondent made inflammatory statements by indicating that the Appellant had made this sort of claim before.
[41] The Respondent argues the closing was appropriate and there was evidence to support the assertion that the Appellant made a very similar claim against the TTC in 2009. Moreover, considerable latitude is afforded to both parties when presenting their closing jury addresses provided there is no misstatement of the law or the evidence. (Gilbert v. South, 2016 ONCA 712 at paras 18 and 19.)
[42] The Respondent’s closing submissions were not improper.
Issue 8: Was the costs decision unreasonable?
[43] The Appellant argues that the trial judge erred by awarding costs that are grossly excessive and seemed to be a means of “economically terrorizing” the Appellant.
[44] The Respondent argues that the costs were an appropriate exercise of the Court’s discretion. The Respondent notes that on May 25, 2016 it made an offer to settle in the amount of $5,000 plus costs and disbursements. The Appellant never offered to settle. As such, the Respondent would be entitled to partial indemnity costs as of the date of the offer (Rule 49.10(2)(c), St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280 at para. 90).
[45] The TTC legal department does not docket their time as do most private practitioners. Costs are not disallowed or reduced simply because counsel is a salaried employee. (Grand & Toy Ltd. v. Aviva Canada Inc., 2010 ONSC 372).
[46] The TTC provided an outline of reasonable estimates of time spent on various tasks based on the review of correspondence and other written records. Based on the submissions, the trial judge awarded partial indemnity costs to the Respondent in the amount of $34,383.40.
[47] Moreover, the Respondent may have been entitled to substantial indemnity costs as of the time of the Offer to Settle.
[48] On the basis of the evidence adduced, the amount awarded was fair and reasonable. (Boucher v. Public Accountant Council for the Province of Ontario, 2004, 2004 14579 (ONCA).
[49] For these reasons, the Appeal is dismissed.
[50] Partial indemnity costs to the Respondent in the amount of $10,000 inclusive of H.S.T. and disbursements as per the Respondent’s bill of costs.
___________________________ Horkins J.
I agree
Thorburn J.
I agree
Pomerance J.
Date of Release: May 18, 2018
CORRECTION NOTICE
Corrected decision: The text of the original judgment was corrected on June 6, 2018 and the description of the correction is appended.
June 6, 2018: The word substantial in paragraph 44 was replaced by partial. The following citation was added to the paragraph after the last word offer: (Rule 49.10(2)(c), St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280 at para. 90).
CITATION: Montague v. TTC, 2018 ONSC 3067
DIVISIONAL COURT FILE NO.: 359/17 DATE: 20180518
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Thorburn and Pomerance JJ..
BETWEEN:
YVONNE MONTAGUE
– and –
TORONTO TRANSIT COMMISSION
AMENDED reasons for judgement
BY THE COURT
Released: May 18, 2018