Court of Appeal for Ontario

Date: September 20, 2019 Docket: C65676

Judges: Strathy C.J.O., MacPherson and Tulloch JJ.A.

Between

Mary Patricia Rodrigues, Michael Fleming, The Estate of Alexander Gideon Fleming, and Maximilian Fleming and Ethan Fleming, Minors by their Litigation Guardian, Mary Patricia Rodrigues

Plaintiffs (Respondents)

and

Bonita L. Purtill, Robert Coldwell, and Aviva Canada Inc.

Defendants (Appellant, Purtill)

Counsel

Todd J. McCarthy and Richard J. Campbell, for the appellant Bonita L. Purtill

Jonathan C. Lisus and Zain Naqi, for the respondents

Heard

September 5, 2019

Appeal Information

On appeal from the judgment, dated June 26, 2018, with reasons reported at 2018 ONSC 3102, and the judgment respecting Pre-Judgment Interest and Costs of Justice Peter B. Hockin of the Superior Court of Justice, dated November 15, 2018, with reasons reported at 2018 ONSC 6825.

Reasons for Decision

[1] This appeal arises from the trial of a motor vehicle accident case in which the appellant, driving while impaired, drove into the respondents' vehicle, causing the death of a young child and serious personal and psychological injuries to other family members. Liability was admitted.

[2] The appellant raises five grounds of appeal.

First Ground: Alleged Bias Regarding Threshold Regulation

[3] First, she asserts that the trial judge's comments about the "threshold" regulation (O. Reg. 461/96) demonstrated bias, tainting his determination of the threshold issues.

[4] We reject this submission. The trial judge's comments during the trial do not come close to demonstrating bias. As the respondents note, the trial judge's comments, while displaying some frustration, can reasonably be viewed as seeking assistance from counsel and some witnesses on the interpretation of the legislation and its application to the facts of this case. Moreover, the appellant has failed to demonstrate any connection between the trial judge's comments and alleged errors in his application of the legislation.

Second Ground: Expert Evidence on Statistics Canada Data

[5] Second, the appellant submits that the trial judge erred in permitting an expert orthopedic witness to rely on evidence from Statistics Canada concerning the working expectancy of patients with chronic low back pain.

[6] We see no error. The expert witness attached to his report a CD containing some of the information he relied on in coming to his opinion concerning the effect of the plaintiff's injury on her earning capacity. This information was available to the defence. The fact that the witness considered statistical information as one of the many elements of the knowledge, information, and experience grounding his opinion, did not render his evidence inadmissible. Nor did it preclude the trial judge from referring to that evidence.

Third Ground: Evidence from Psychologist on Threshold

[7] Third, the appellant says that the trial judge improperly considered the evidence of a registered psychologist and a specialist in the treatment of children, who gave evidence on whether the injuries to the children met the threshold. Section 4.3 of the regulation refers to such evidence being given by a "physician".

[8] The statutory threshold for non-pecuniary loss, s. 267.5(5), requires the court to determine whether there has been a "permanent serious impairment of an important physical, mental or psychological function." Section 4.2 of the Regulation sets out the criteria to be applied in determining whether there has been a permanent impairment of such a function. Section 4.3 requires that the plaintiff adduce the evidence of one or more "physicians" who are "trained for and experienced in the assessment or treatment of the type of impairment" alleged. The plaintiff must also adduce evidence to corroborate the change in function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

[9] In the particular circumstances of this case, we do not give effect to this ground of appeal. We note, first, that the evidence of the psychologist was led by the plaintiffs, without objection by the appellant. The trial judge qualified the psychologist as an expert, capable of giving expert evidence on the issues. The appellant took no objection to the witness's qualifications and the issue was not raised until closing arguments. The failure to object, when the witness was qualified, can reasonably be taken to be an acknowledgment that the witness was qualified to give the opinion she tendered.

[10] Second, as the respondents note, evidence of psychologists has been accepted in other such cases, without objection: see e.g. Podleszanski v. Medley (2007), 88 O.R. (3d) 294 (Sup. Ct.); Hayden v. Stevenson; Zhu v. Matador, 2015 ONSC 178; and Mamado v. Fridson, 2016 ONSC 4080. The appellant has pointed to no authority holding that the requisite evidence must be given by a medical doctor as opposed to a psychologist.

[11] Third, the psychologist's evidence was confirmed by the evidence of the appellant's own expert psychiatrist, which satisfied the requirements of the threshold.

[12] We therefore find it unnecessary to consider the respondents' submission that a psychologist can be considered a "physician" for the purpose of s. 4.3 of the Regulation.

[13] Arguably, what is important for the purposes of the application of the legislation and the regulation is not whether the expert is labelled a "doctor", a "physician", a "psychiatrist" or a "psychologist", but whether he or she has the requisite training and experience to assess the impairment, apply the established guidelines and standards of the profession, and to give expert evidence on the application of the criteria set out in the regulation to a particular case. The trial judge would make that determination in the exercise of his or her gatekeeping role over expert evidence. The purpose of the legislation might well support an interpretation of "physician" that would include a "psychologist". In the circumstances of this case, however, we do not find it necessary to decide this issue.

Fourth Ground: Awards for Loss of Care, Guidance and Companionship

[14] Fourth, the appellant submits that the awards of damages for loss of care, guidance and companionship under the Family Law Act, R.S.O. 1990, c. F.3, exceeded the applicable range and were so excessive as to reflect an error in principle. This submission is unsupported by any reference to authority as to what the current range is or should be. We are not persuaded that the awards in this case exceed the range set out by this court in Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at paras. 76-83, when properly adjusted for inflation.

Fifth Ground: Costs Award

[15] Finally, the appellant submits that the trial judge's costs award reflects an error in principle because it was not proportionate. We do not agree. The plaintiffs recovered over $1 million before statutory deductions, which reduced the net recovery to $832,300, plus prejudgment interest. The trial took place ten years after the accident and approximately 8 years after the action was commenced. The trial lasted approximately 9 days.

[16] The trial judge gave thorough reasons for his award of costs, and considered the factors set out in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the fact that the respondents' settlement offer was less than the amount of the ultimate recovery. The judge declined to give the respondents the "costs premium" they had requested. Ultimately, he awarded costs of $383,922.42, which included $90,062.45 of disbursements and $180,066.60 of post-offer costs on a substantial indemnity basis. The appellant has failed to demonstrate that the costs were not fair and reasonable, or that the trial judge made an error in principle in his assessment.

Disposition

[17] For these reasons, we dismiss the appeal.

"G.R. Strathy C.J.O."

"J.C. MacPherson J.A."

"M. Tulloch J.A."