Citation: Cairns v. Ellis, 2025 ONSC 1762
DIVISIONAL COURT FILE NO.: DC-25-000000009-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, McCarthy and I. Smith JJ.
BETWEEN:
Rexine Cairns Plaintiff/Appellant
– and –
Corey Edgar Peter Ellis Defendant/Respondent
J. Palmer, Counsel for the Appellant
J. Tatner, Counsel for the Respondent
HEARD at Brampton by videoconference March 3, 2025
REASONS ON APPEAL
J.R. McCarthy J.
Background
1The Plaintiff/Appellant appeals from a judgment granted by Tzimas J (“the trial judge”) on June 10, 2024, in which the court ordered $NIL for net damages, resulting in no recovery for the Appellant.
2The judgment followed a trial before judge and jury pertaining to a claim for personal injury damages arising from a motor vehicle accident on January 6, 2016.
The Appeal
3The Appeal is brought under the Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(a) and 19(1.2)(a). These sections state that an appeal lies with the Divisional Court on a final order of a judge of the Superior Court of Justice where the notice of appeal is for a single payment of less than $50,000.
4The grounds for the appeal are:
a. That the trial judge improperly excluded the testimony and reports of the Plaintiff’s proposed medical expert, neurologist Dr. Vincenzo Basile.
b. That the trial judge declined to leave certain heads of damages for the determination of the jury: loss of competitive advantage (“LOCA”) and medical expenses.
5The Appellant seeks an order setting aside the judgment and directing a new trial of the action.
6For the reasons that follow, I would dismiss the appeal.
The Ruling Re: Dr. Basile
7At trial, the Respondent brought a motion for an order excluding Dr. Basile from testifying at trial as an expert witness. After a voir dire spanning nearly two days, and featuring an extensive examination of the proposed expert, the trial judge ruled that Dr. Basile had failed to satisfy the court that his expert opinion would be fair, objective and non-partisan. The proposed expert was therefore prohibited from providing evidence before the jury. The trial judge’s endorsement is re-produced in its entirety below:
The Defendant brought a motion to obtain an order to prohibit Dr. Vincenzo Santo Basile from testifying at this trial. The Defence contends that it is in the interests of justice to exclude Dr. Basile’s Report and addendum concerning Ms. Cairns. That view is based on the conclusion that Dr. Basile is unable or unwilling to provide fair, objective and non‐partisan assistance to the court. He should therefore not be permitted to give expert opinion evidence at this trial.
The Plaintiff disagrees. Counsel submits that even with certain obvious errors in Dr. Basile’s report, including the red flag associated with his engagement with Ms. Cairns’ history of pre‐accident headaches, Dr. Basile meets the test for qualification as an expert and will be able to provide fair, objective and non‐partisan evidence.
In my consideration of this issue, I find that Dr. Basile demonstrated both an inability and an unwillingness to provide the court with fair, objective and non‐partisan evidence. Dr. Basile’s responses to the various questions put to him during his cross‐examination in the context of the Defendant’s motion revealed serious concerns with his: a. carelessness and cavalier presentation; b. failure to keep any notes of his assessment of Ms. Cairns, including Ms. Cairns’ authorization and her answers to the questionnaire she completed as part of Dr. Basile’s assessment; c. methodology assessment, including his use of macros and leading questions, deliberately designed to fit into an algorithmic analysis to then drive the desired conclusions; d. pronounced defence of his methodology; and e. unwillingness to reconsider any of his opinions and conclusions in light of obvious errors in the recording of Ms. Cairns complaints and suggested corrections. Cumulatively, these flaws put Dr. Basile's reliability as an independent and objective expert into serious doubt. In short, Dr. Basile has failed to satisfy me that his expert opinion will be fair, objective, and non‐partisan.
Given these concerns and having regard for the guiding legal principles as outlined in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, paragraph 49, Parliament et al v. Conley and Park, 2019 ONSC 3995, at para. 18, R v. Mills, 2019 ONCA 940, at para. 70, R v. Nettleton, 2023 ONSC 3390, at para. 56, and R v. Hason, 2024 ONCA 369, at paras. 1 and 103, I am not prepared to admit Dr. Basile's expert opinion and anticipated testimony into evidence.
Fuller reasons, if necessary, will be provided at a later point in time.
The Questions for the Jury
8At the conclusion of the evidence, and in advance of closing submissions, the trial judge held a pre-charge conference in the absence of the jury. Lengthy submissions on the evidence and governing case law were received from both parties. Following respective counsel’s closing addresses to the jury, the trial judge delivered her charge and left the jury with the verdict sheet which contained the following questions: 1) did the motor vehicle accident cause the Plaintiff to suffer any damages; 2) assessment of general damages; 3) did the Plaintiff suffer past loss of income; 4) will the Plaintiff suffer future loss of income; and 5) did the plaintiff incur past housekeeping expenses.
9The trial judge found that there was insufficient evidence to put the questions of LOCA and past and future medical expenses to the jury.
The Verdict
10The jury found that the Plaintiff had suffered damages as a result of the subject accident. It awarded general damages of $17,500, past loss of income of $1,280, zero dollars for future loss of income, and zero dollars for past housekeeping. The operation of the statutory monetary deductible coupled with the collateral deduction provisions in the Insurance Act, R.S.O. 1990, c. I.8, served to reduce the jury’s award to zero, resulting in the judgment of $NIL.
Standard of Review
11The questions raised on appeal are of mixed law and fact. Accordingly, the standard of review (unless there is an extricable question of law) is one of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 36 - 37.
New Trial as a Remedy
12Section 134(6) of the Courts of Justice Act stipulates that a court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.
Discussion
a) Exclusion of Dr. Basile as Expert
13The trial judge’s decision on this issue does not raise an extricable issue of law or an error in principle. The Appellant has failed to demonstrate any palpable and overriding error on the part of the trial judge on this issue and has failed to demonstrate that the decision was clearly wrong.
14The trial judge in a jury trial has an important, indeed essential, gatekeeper function as it pertains to both evidence and compliance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Ontario Court of Appeal in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 37, described this discretionary gatekeeping function as, “…a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value.”
15The trial judge conducted a thorough voir dire in which an extensive evidentiary record was before the court. This included copies of Dr. Basile’s reports from other litigation cases containing almost identical analyses and conclusions. The trial judge had the opportunity to hear the live testimony of the proffered expert, to observe his demeanor and assess his credibility.
16In making her exclusionary ruling, the trial judge identified five distinct “flaws” in Dr. Basile’s presentation and methodology which left the former unpersuaded that the neurologist could offer a fair, balanced, and objective opinion. The trial judge referenced the guiding principles which have emerged from the case law. Her reasons, while succinct, are nonetheless transparent and sufficient. Counsel for the Appellant conceded this in oral argument.
17Moreover, the Appellant’s contention that the trial judge’s findings on the expert’s algorithmic analysis were unfounded and misplaced ignores the fact that this was just one of five grounds, which “cumulatively” put Dr. Basile's reliability as an independent and objective expert into serious doubt. Even assuming the correctness of the Appellant’s contention (which I do not accept), there were other grounds for rejecting the proposed expert evidence each of which were open to trial judge.
18There was no palpable and overriding error here. It was the Appellant’s burden to establish that Dr. Basile would be able to provide an independent and objective expert opinion to the court. On the evidence before her, it was open to the trial judge to make the findings she did and to invoke her authority as gatekeeper to prohibit Dr. Basile’s analysis and opinion from going to the jury.
b) The Questions for the Jury
19The law is clear that there must be a minimum evidentiary foundation established before an issue is submitted to a jury. The evidence must be sufficient to support a verdict: see Rezai et al. v. Kumar et al., 2024 ONSC 3546, at para. 36. In the absence of sufficient evidence, the trial judge is well within her rights to withhold a head of damages from the jury. All of the issues concerning the questions for the jury are questions of mixed fact and law where there is no extricable error of law.
i) LOCA
20The court in Rezai elaborated on the threshold for issues of economic loss going to the jury: a trial judge should not propose a method for quantifying such damages that is not supported by the evidence at trial; and a trial judge should not use an approach that the parties did not advance and had no opportunity to test or challenge. The court went on to state at para. 37:
There must be admissible evidence upon which a properly instructed jury can make the requisite findings of fact to support their calculation of the compensation awarded. Juries should not be invited to “speculate and pull a dollar figure out of thin air.” [Citations omitted].
21In TMS Lighting Ltd. v. KJS Transport Inc, 2014 ONCA 1, 314 O.A.C. 133, at para. 65, the Court of Appeal provided the following direction:
…it is not open to a trial judge to postulate a method for quantification of damages that is not supported by the evidence at trial. Nor is it open to a trial judge to employ an approach to the quantification of damages that the parties did not advance and had no opportunity to test or challenge at trial … To hold otherwise would sanction trial unfairness.
22In Mundinger v. Ashton, 2019 ONSC 7161, 41 C.P.C. (8th) 1, at para. 35, Charney J determined that the question of LOCA could not be put to the jury. He reasoned as follows:
Loss of competitive advantage is a pecuniary loss and must have some basis in empirical evidence, such as the Statistics Canada Survey relied on by Mr. Wollach. In the absence of such empirical evidence, the jury is being asked, once again, to speculate and pull a dollar figure out of thin air.
23In the case at bar, the issue of LOCA was extensively canvassed during the pre-charge discussions. The trial judge determined that there was no evidence that “a jury can work with to come up with a number.” Specifically, she cited the absence of evidence about job options and opportunities, range of salaries, and general marketplace evidence. The trial judge was rightly concerned about taking the jury down “rabbit holes”.
24The trial judge agreed to put the question of future loss of income to the jury. She found there to be insufficient evidence to put the question of LOCA to the jury. She was justified in making that determination. There was no palpable or overriding error on the part of the trial judge.
ii) Medical Expense
25Nor was there any palpable or overriding error in the trial judge’s ruling that the question of past medical expenses would not go to the jury. During the Plaintiff’s case, the trial judge made a ruling that an invoice from a medical service provider was inadmissible for lack of sufficient detail and in the absence of a source witness to speak to it. There remained only a passing reference by the Plaintiff to an amount owing to the rehabilitation company which was unsupported by any detail or documentation. The trial judge considered the evidence on the issue to be “too thin” to be left with the jury. Again, it was open to the trial judge to determine that this was insufficient evidence to support a verdict under this head of damage. With respect to future medical expenses, the Appellant’s counsel conceded as follows at the pre-charge conference: “With respect to Ms. Cairns’ future, I share my friend’s concerns, and I say this in a cooperative manner…it would be a very, very difficult request to the jury… this is a close call, and the evidence is very thin on futures.” This concession was appropriate given the lack of any evidence concerning the specifics or the quantum of any future medical expenses.
Disposition
26For the foregoing reasons, the appeal is dismissed. In line with the agreement reached between the parties, the Plaintiff/Appellant shall pay the Defendant/Respondent his costs of the appeal fixed in the amount of $20,000.
McCarthy J
I agree _______________________________
Sachs J.
I agree _______________________________
I. Smith J.
Released: April 4, 2025
CITATION: Cairns v. Ellis, 2025 ONSC 1762
DIVISIONAL COURT FILE NO.: DC-25-000000009-0000
DATE: 20250403
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, McCarthy and I. Smith JJ.
BETWEEN:
Rexine Cairns Plaintiff/Appellant
-and-
Corey Edgar Peter Ellis Defendant/Respondent
REASONS On appeal
Released: April 3, 2025