Court of Appeal for Ontario

Date: 2019-01-18 Docket: C63767

Judges: Sharpe, Juriansz and Roberts JJ.A.

Between

Greg McKnight Plaintiff/Respondent

and

Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario, City of Hamilton, Integrated Maintenance & Operations Services Inc., TWD Roads Management Inc., John Doe and The Dominion of Canada General Insurance Company Defendants/Appellants

Counsel

Stephen Ross and Andrew Yolles, for the appellants

Christopher Morrison and Joel Cormier, for the respondent

Heard

January 14, 2019

On Appeal

On appeal from the judgment of Justice David L. Edwards of the Superior Court of Justice, sitting with a jury, dated April 19, 2017.

Reasons for Decision

Overview

[1] The appellants raise two grounds of appeal from the judgment in this personal injury action. The respondent plaintiff alleged that as a result of a relatively minor motor vehicle accident, he suffered from chronic pain, anxiety and depression. The appellants argue that the damages awarded by the jury were excessive and that a new trial should be ordered on two grounds:

1. The trial judge erred in failing to grant a mistrial; and
2. The trial judge erred in allowing an amendment to the prayer for relief in the statement of claim following the jury's verdict.

Mistrial

[2] The appellants submit that the jury's damages award was the product of being inflamed by the respondent's complaints of mistreatment at the hands of their trial counsel.

[3] The appellants took the position that many of the respondent plaintiff's complaints were the product of pre-accident psychological trauma and issues as well as stress from the litigation. During his cross-examination, the respondent exhibited signs of stress and complained that the appellants' trial counsel was yelling at him and that he was asking about the suicide of the respondent's step-father. In re-examination, he complained that the appellants' counsel had also yelled at him and questioned him about his step-father's suicide during his examination for discovery.

[4] The trial judge ruled that evidence about what had transpired on the discovery was not admissible as it risked making the appellants' counsel a witness. Subsequently, the respondent's treating psychiatrist was asked to comment on the stress of the lawsuit and he reported that the respondent felt abused and mistreated by the appellants' counsel. The treating psychiatrist then went on to provide the opinion that defence counsel's impugned conduct had a negative impact on the respondent's psychological condition.

[5] At that point, the appellants objected and asked the trial judge to declare a mistrial. The trial judge refused the motion, holding that while the evidence should not have been introduced and was prejudicial to the appellants, any prejudice could be cured by a mid-trial instruction to the jury.

[6] The trial judge instructed the jury that litigation was often stressful, that litigants often have a difficult relationship with opposing counsel but that the details of the interactions of litigant and opposing counsel were not relevant to the issues the jury had to decide. He told the jury he had ruled that the respondent's allegation that defence counsel had made certain comments to him was inadmissible and was to be totally disregarded and that the jury should not even speculate whether any such comments had been made. He told the jury the same thing applied to the treating psychiatrist's testimony about what the respondent had said to him about opposing counsel. He told them that the history and statements of the respondent contained in the doctor's evidence should not be considered as evidence in itself, but simply as the basis of the doctor's diagnosis and treatment.

[7] We do not accept the submission that the trial judge erred in law by refusing to grant a mistrial. It is well-established that "[a] mistrial is the remedy of last resort and that the trial judge's decision to deal with the matter by way of instruction rather than mistrial attracts deference in this court": Dunk v. Kremer, 2018 ONCA 274 at para. 11.

[8] The appellants did in fact raise and rely on the respondent's reaction to his step-father's suicide both at the discovery and at trial. They also contended that the respondent's problems were in part at least the product of stress from the litigation.

[9] The jury was appropriately cautioned that litigation of this nature is inherently stressful and that the relationship between a plaintiff and a defence counsel would often be difficult and stressful. The jury was also cautioned about the use it could make of the objectionable evidence. Moreover, over the course of the trial judge's final charge, the jury was instructed several times that it was to assess the damages issues without sympathy or prejudice and that damages were intended to be compensation and not a form of retribution against the defendants.

[10] In our view, it was well within the discretion of the trial judge to conclude that, in the context of this case, the respondent's criticism of the conduct of appellants' trial counsel did not rise to the level of causing an injustice that could only be cured by a mistrial.

[11] We add that the appellants do not argue that the verdict was unreasonable. There was evidence that the respondent was unemployable following the accident. The fact that the non-pecuniary damages award exceeded the cap and, after amendment by the trial judge, was at the top end of the range, does not demonstrate that the jury was inflamed, particularly in the light of the fact that the jury's pecuniary damages award was materially less than the damages requested by the respondent.

[12] We therefore dismiss this ground of appeal.

Amendment to the Statement of Claim

[13] The statement of claim asked for $250,000 special damages and $750,000 general damages. The jury awarded $600,000 for non-pecuniary general damages; $840,000 for loss of income; $860,000 for future health care expenses and special damages within the limit claimed in the statement of claim.

[14] The jury was not instructed on the "cap" for non-pecuniary general damages and the trial judge reduced that award to the then current cap, $379,153.00. The trial judge then granted the respondent's motion to amend the statement of claim to claim damages in the amount of $2,079,153 to allow for judgment in the amount awarded by the jury after the reduction to take into account the cap.

[15] The appellants argue that the trial judge erred by granting that amendment. They say they prepared for and conducted the litigation on the basis of the amount claimed and that they were unfairly prejudiced by the amendment.

[16] We do not accept that submission. The trial judge, who was in the best position to assess prejudice, carefully reviewed the record and concluded that the appellants were fully aware of the nature and quality of the respondent's claim and suffered no prejudice. The amendment did not alter the case to be met by the appellants and they failed to persuade the trial judge that they would have led different evidence or conducted the case any differently had the amendment been sought earlier. We see no error that would permit us to interfere with the trial judge's order to amend the statement of claim.

Disposition

[17] Accordingly, the appeal is dismissed with costs to the respondent fixed in the agreed amount of $30,000 inclusive of disbursements and taxes.

"Robert J. Sharpe J.A."

"R.G. Juriansz J.A."

"L.B. Roberts J.A."