CITATION: Mandel v. Fakhim, 2018 ONSC 7580

DIVISIONAL COURT FILE NO.: 533/16 DATE: 20181217

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MORAWETZ R.S.J., C. HORKINS and MATHESON JJ.

BETWEEN:

ALAN MANDEL

Alan Mandel, acting in person

Plaintiff/Appellant

– and –

ZOHREH FAKHIM, UNIVAR CANADA LTD. And ROY FOSS MOTORS LTD., operating as FOSS NATIONAL LEASING

Hillel David, for the Defendants/Respondents

Defendants/Respondents

HEARD at Toronto: December 17, 2018

THE COURT (Orally)

[1] The Appellant appeals the judgment of Justice F. Myers (the “trial judge”), dated November 18, 2016 and entered in accordance with a jury verdict. Although the Appellant represented himself in court today, the panel had the benefit of an appeal record and factum filed by his trial counsel.

[2] The action arose out of a motor vehicle accident on July 4, 2009. The Appellant was a passenger in his wife's stopped vehicle when it was struck from behind by the Respondents' vehicle. The Respondents admitted liability and the issue of damages proceeded to trial before a jury.

[3] At trial, the Appellant testified that he injured his shoulder in the accident and as a result suffered significant bilateral shoulder pain. He said that this necessitated treatments and surgery and he has never regained his ability to work.

[4] The jury awarded the Appellant $3,000.00 for pain and suffering, and nothing for past or future lost income, future care expenses or housekeeping services.

Grounds of Appeal

[5] The Appellant raises four grounds of appeal:

(i) The trial judge erred in failing to properly instruct the jury regarding the law of temporal causation.

(ii) The trial judge’s jury charge deprived the Appellant of a fair trial.

(iii) The $3,000 damage award is so inordinately low that appellate intervention is warranted.

(iv) The trial judge erred in failing to determine the issue of “threshold” impairment.

standard of review

[6] On an appeal from a judge’s order the standard of review for 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 (in Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235).

[7] Not all errors made by a trial judge in charging a jury will lead to a new trial. In accordance with s. 134(6) of the Courts of Justice Act, a new trial should not be directed unless some substantial wrong or miscarriage of justice has occurred. As stated by the Court of Appeal in Senger v. Lachman, 2008 ONCA 323, at para. 17:

In a jury trial, the trial judge has a duty to provide the jury with a clear explanation of the law to allow the jury to discharge its responsibility as judge of the facts. A substantial wrong, therefore, may include a charge that leaves the jury with a misapprehension of the applicable law, is materially deficient or fails to clearly state the law on a critical issue.

[8] The court will only interfere with a jury’s award for damages where it is so grossly out of proportion to the negligence as to shock the court’s conscience and sense of justice: Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129 at para. 159.

analysis

Issue 1: Did the trial judge err in failing to properly instruct the jury regarding the law of temporal causation?

[9] The Appellant submits that there was a serious misdirection in the charge to the jury regarding temporal causation and as a result the jury was ill-equipped to serve as the trier of fact. He argues that the jury charge regarding temporal causation was wrong in law and misleading, because it involved non-material examples of causation and undermined the Appellant’s valid assertion that the temporal connection between the accident and his injuries was the critical factor for the jury to consider.

[10] It is the following part of the charge that that the Appellant takes issue with:

In assessing causation, it’s important to avoid the logical fallacy of automatically assuming a causal connection between two events just because one closely follows the other in time. We have all heard about cases where children have become very ill shortly after receiving vaccinations, yet the science is clear that the vaccines often do not cause illness. People naturally want to ascribe cause and the most recent event is the most natural conclusion. However, the simple fact that something came first and something else came after does not automatically or necessarily prove causation.

In a vaccine case, a former judge of this court wrote that, “Statistically within any large group of population, the chances of a number of illnesses developing within three days of virtually any observable event are great.”

Mr. Mandel put his shoes on in the morning before his motor vehicle accident. No one would say that just because he started to feel pain shortly after putting on his shoes that the shoes caused the pain. You have to look at all the evidence and see if he’s proven that but for the motor vehicle accident he would not have incurred his losses.

[11] This excerpt from the charge cannot be considered in isolation. When considered with the full charge on causation, we reject the Appellant’s position that the jury was left with a misapprehension on the applicable law. To the contrary, the charge reveals that the law on causation was correctly stated and was not misleading.

[12] The portion of the jury charge dealing with causation is over six pages long (p. 1273-1279). The trial judge first outlines the general test of causation, including the “but for” test, discusses the thin skull rule, and then spends a significant portion of time on the crumbling skull rule. It is within the crumbling skull discussion where this excerpt is found. The causation portion of the jury charge finishes with a final summary of causation.

[13] Throughout his jury charge, the trial judge utilized “non-material examples” to make certain legal issues more readily understandable by the lay jury. For example, when discussing how to make reasonable inferences, the trial judge stated:

In considering the evidence, you have the right to draw all reasonable inferences. Any fact proven by reasonable inference from the evidence is just as well proven as facts established by direct evidence. If, for example, you go outside now and see that the sidewalk is wet, the water is a fact. But from the fact you may infer that it rained.

[14] In summary the trial judge gave the jury “non-material” examples of temporal causation that could be easily understood by lay persons. The Appellant’s argument that the charge regarding temporal causation was wrong in law and misleading is rejected.

Issue 2: Did the jury charge deprive the Appellant of a fair trial?

[15] The Appellant submits that the trial judge destroyed the image of impartiality when he became a protagonist for the Respondents. He argues that the trial judge’s actions violated the principle that “justice not only be done, but appear to be done”, and the result is a loss of jurisdiction.

[16] The Appellant relies on various appellate authorities that set out the importance of an objective jury charge, and when a trial judge has “gone too far”.

[17] A trial judge crosses the boundary if a view is expressed that is far stronger than the facts warrant or so strongly that the jury is likely to be overawed by it and if the trial judge becomes a participant in the litigation. When a trial judge expresses disbelief or skepticism about a party’s position or appears to adopt an adversarial position, this can give rise to a reasonable apprehension of bias and destroy the required impartiality.

[18] As we will explain, the trial judge in this case did not cross the boundary and deprive the Appellant of a fair trial.

[19] The Appellant relies on an instance of alleged misconduct. He says that the trial judge "concatenat[ed] distinct pieces of evidence … (such as juxtaposing the dates when Alan received nerve block injections with the dates when he was observed on surveillance)". This submission does not accurately reflect the charge to the jury.

[20] The trial judge detailed the Appellant’s evidence about having to take nerve block injections and how this gave him about two "good days". When discussing issues raised on cross-examination, the trial judge discussed how the Appellant advised that his last nerve block injection was a week before trial started.

[21] The Appellant takes issue with the trial judge’s review of the various aspects of the credibility assessments the jury must undertake. The passages in the charge are not evidence that the trial judge "crossed the boundary" and became a participant in the litigation, depriving the Appellant of a fair trial. The trial judge emphasized numerous times that the jury, and the jury alone, were the arbiter of facts:

Please consider my instructions as a whole. Do not attach any undue weight to any certain sentence or individual part and ignore the rest.

You have the sole authority to determine the facts.

No matter what I say as I may summarize the facts and issues for you, on questions of fact, on weighing the evidence, on deciding what happened in this case, it is your view and only your view that matters.

The verdict should be your verdict and must reflect your views, no matter what I or anyone else says about the facts and the evidence.

You'll be the sole judges of the truthfulness and reliability of the witnesses and the weight to be given to each of the testimony.

[22] In summary there is no basis for this ground of appeal.

Issue 3: Is the $3,000 award so inordinately low that appellate intervention is warranted?

[23] The Appellant submits that given the extent of his injuries, the jury’s award of $3,000 is grossly inadequate. As a result, the award is a miscarriage of justice warranting appellate intervention. The Appellant asks this court to substitute its own assessment of damages.

[24] We do not accept that the jury’s assessment of damages is so grossly out of proportion as to shock the court’s conscious. The jury heard evidence from a variety of people, including the Appellant, his wife, and many expert witnesses. The jury heard conflicting evidence about whether the Appellant suffered chronic physical pain as a result of the accident. There was also evidence to suggest that the Appellant may have not been forthcoming in his testimony regarding how the accident occurred and may be exaggerating his pain.

[25] There was ample evidence to support the jury’s award. The Appellant first saw his family doctor four days after the accident. Dr. Forman found no neurological abnormalities, but the Appellant had muscle tenderness and limited range of motion of the neck. Dr. Forman referred the Appellant to a chiropractor for soft tissue management. Dr. Forman made no notation of any shoulder problem on the July 8, 2009 visit, nor was the Appellant complaining of headache or jaw pain. Dr. Zabieliauskas, a physiatrist and Dr. Ford, an orthopedic surgeon each gave opinion evidence that the chronic shoulder pain was not related to the accident.

[26] Deference is owed to the jury’s decision (Housen v. Nikolaisen, at para. 30). The jury had an extensive opportunity to observe the Appellant, hear his evidence, and consider his allegations that he had suffered severe and chronic pain as a result of the accident. The jury was entitled to accept or reject the Appellant’s theory of the case and any evidence that tended to support it. It cannot be said that no other jury, reviewing the evidence and acting judicially, could have reached the same decision.

[27] The jury’s award is not so grossly out of proportion as to shock the court’s conscience and sense of justice: Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130, at para. 159. Deference must be accorded. This ground of appeal is rejected.

Issue 4: Did the trial judge err in failing to determine the issue of “threshold” impairment?

[28] Section 267.5(15) of the Insurance Act provides that, in the absence of a motion before trial, the trial judge “shall” determine whether a plaintiff is entitled to claim non-pecuniary damages arising from the motor vehicle accident.

[29] The Appellant states that the trial judge erred when he declined to determine the threshold issue because this is contrary to the mandatory language of s. 267.5(15).

[30] The trial judge declined to determine if the Appellant’s injuries met the threshold impairment in accordance with s. 267.5(15) of the Insurance Act and gave two reasons.

[31] First, the trial judge found that the issue was moot. He stated that given the $3,000 damage award and the $30,000 deductible, the Appellant would not receive any money as a result of the jury's verdict. Therefore “deciding whether his injuries meet the threshold appears to have no practical effect between the parties”.

[32] Second, the trial judge explained that his greater concern was as follows:

…in order to find that the plaintiff met the threshold as he argues, I would necessarily be disagreeing with the jury's findings. That is, to hold for the plaintiff, I would have to hold both that the plaintiff suffered at least most of the injuries he claims and that the contact between the cars was a cause of those injuries. Making at least one and perhaps both of those findings would necessarily put me in direct conflict with the jury's verdict.

[33] The mandatory language of s. 267.5(15) requires the judge to decide the threshold issue. It was not open to the trial judge to declare the threshold issue as moot and refuse to decide it. This is an error in law and it was improper for him to proceed in this manner.

[34] Further, the trial judge’s views about the mootness of the exercise and the role of the jury system are irrelevant and wrong in law. We agree with Justice I.F. Leach who stated in Ismail v. Fleming, 2018 ONSC 6780, at paras. 52-58:

[52] In the course of submissions, defence counsel also placed considerable reliance on certain comments made by Justice Myers in Mandel v. Fakhim, which essentially were said to constitute a judicial recognition or admission that having chronic pain claims determined by jury trials was no longer just or appropriate, and instead something now used inappropriately by insurers to bring about injustice. In particular, the following passages from the endorsement of Justice Myers were emphasized:

The plaintiff claimed more than $1.2 million in general and special damages as compensation for the injuries and losses that he says he sustained as a result of the motor vehicle accident. The trial lasted 12 days. The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict. The jury awarded the plaintiff just $3,000 for general damages and nothing at all for past income loss, medical care, and housekeeping costs. …

While jury trials in civil cases seem to exist in Ontario solely to keep damages awards low, in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land.

[The comments I have emphasized by placing them in italics are those upon which plaintiff counsel in this case placed particular emphasis.]

[53] With great respect to Justice Myers, in my view the comments highlighted by plaintiff counsel do not have the significance suggested by plaintiff counsel, and I do not agree with the comments in any event.

[54] I say that for numerous reasons.

[55] First, in my view the emphasized comments by Justice Myers were clearly obiter. Justice Myers was being asked to provide a judicial ruling on the question of whether or not the injuries of the plaintiff in that case met the statutory “threshold”, established by s.267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8, for pursuing certain claims in relation to those injuries. In making such determinations, a trial judge is permitted to consider a verdict reached in the matter by a jury. In my view, such determinations do not invite or call for any necessary judicial determination of whether trial by jury is a just and appropriate method of adjudicating the merits of personal injury claims in Ontario. That is a matter for the Legislature and, as Justice Myers himself notes in his endorsement, the existing civil jury system remains “the law of the land”.

[56] Second, in my view the supposed purpose of civil jury trials suggested by Justice Myers, together with any corresponding suggestions of inherent injustice supposedly inflicted by the civil jury system, fly in the face of repeated indications by the Supreme Court of Canada and our own Court of Appeal that civil jury trials ensure our system of justice benefits from the “wisdom of … collective life experience”, “a healthy measure of common sense” and a “reflection of societal values” that jurors bring to trials, and that “one of the strengths of the jury system is that it keeps the law in touch with evolving realities, including financial realities”. I do not think those appellate statements, emphasizing the true purpose and contributions to justice of the civil jury system, should or can be effectively dismissed as some form of sham or meaningless verbiage. To the contrary, those appellate views are binding on the judges of this court. Moreover, the wisdom and accuracy of those appellate views seems readily apparent when one considers precedents dealing with motions to strike jury notices extending decades into the past; precedents which seem to suggest periods when such motions were brought predominantly by defendants, and other periods, (including the experience of recent years), wherein such motions have been brought primarily by plaintiffs. If defendants and plaintiffs, over time, successively perceive their preferences to be out of step with current jury verdict trends, (i.e., because jurors appear to be giving expression to an outlook on underlying realities and society values not favoured at the time by defendants or plaintiffs, as the case may be), one legitimate inference is that the civil jury system is not broken but instead working as intended.

[57] Third, I do not think the comments of Justice Myers were meant to suggest that insurers were somehow cynically intent on using the jury system to work injustice, as opposed to choosing the mode of trial they thought most likely to result in true justice in particular cases. In any event, to the extent the comments of Justice Myers have been perceived to have that meaning by plaintiff counsel, I disagree with them. Appellate courts repeatedly have emphasized that trial judges should not permit counsel, in submissions to a jury, to demonize or impugn a litigant’s motives or morality, as such considerations lead to flawed and prohibited reasoning. In my view, judges should not engage in any similar process or reasoning in relation to an insured defendant’s filing of a jury notice, in the absence of clear evidence to support accusations of wrongful intent.

[58] Fourth, and more generally, to the extent the comments of Justice Myers suggest that chronic pain claimants are incapable of receiving a fair and favourable verdict from a jury, (including substantial damage awards in appropriate cases, where the subjective claims of a plaintiff are found to be credible), that is not my view or experience for the reasons outlined above.

[35] On this appeal, the Appellant in his factum seeks the following relief:

(a) An order setting aside the judgment entered in accordance with the verdict of the jury and in its place the appellant seeks a judgment for an increased verdict;

(b) In the alternative, an order requiring a new trial;

(c) Costs of the action and appeal.

[36] The first three grounds of the appeal have failed. While we found an error of law on the fourth ground of appeal, we are not satisfied that a substantial wrong, or a miscarriage of justice has occurred. Therefore, pursuant to s. 134(6) of the Courts of Justice Act, we decline to direct a new trial and refuse the request to substitute an increased verdict.

[37] Given the outcome of this appeal, we make no order as to costs.

MORAWETZ R.S.J.

[38] I have endorsed the Appeal Book and Compendium of the Plaintiff/Appellant as follows: “For oral reasons delivered today, we decline to increase the amount of the jury verdict or to order a new trial. No order as to costs.”

___________________________ MORAWETZ R.S.J.

C. HORKINS J.

MATHESON J.

Date of Reasons for Judgment: December 17, 2018

Date of Release: December 20, 2018

CITATION: Mandel v. Fakhim, 2018 ONSC 7580

DIVISIONAL COURT FILE NO.: 533/16 DATE: 20181217

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MORAWETZ R.S.J., C. HORKINS, and MATHESON JJ.

BETWEEN:

ALAN MANDEL

Plaintiff/Appellant

– and –

ZOHREH FAKHIM, UNIVAR CANADA LTD. And ROY FOSS MOTORS LTD., operating as FOSS NATIONAL LEASING

Defendants/Respondents

ORAL REASONS FOR JUDGMENT

THE COURT

Date of Reasons for Judgment: December 17, 2018

Date of Release: December 20, 2018