Court File and Parties

COURT FILE NO.: CV-10-100148-00 DATE: 20170531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Carmen Johnston, Plaintiff – and – Allen Walker and Sandra Walker, Defendants

Counsel: Andrew R. Kerr, for the Plaintiff David Merner, for the Defendants

HEARD: May 23-30, 2017

Ruling on Jury Question

CHARNEY J.:

[1] This case arises out of the plaintiff’s claim for damages resulting from a motor vehicle accident on July 20, 2008. Liability is admitted and the only issues are causation and damages. At the conclusion of both the plaintiff’s and the defendants’ case the court raised with counsel the issue of whether that part of the proposed jury question dealing with the value of the plaintiff’s lost earning capacity could be put before the jury for their deliberation. The specific question in issue is: What amount, if any, do you assess the value of Carmen Johnston’s loss of earning capacity.

[2] The evidence in this civil jury case was completed on May 30, 2017 after six and one-half days. A pre-charge conference was scheduled for May 31, 2017. Since counsel needed to know what jury questions would be permitted before we proceeded with the pre-charge conference and to permit them to prepare their closing submissions I heard argument with respect to the jury questions at the conclusion of the trial and issued an oral decision with brief reasons before we adjourned for the day. I advised counsel that I would provide more detailed reasons at the pre-charge conference. These are those reasons.

[3] In M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135 at para. 51, the Ontario Court of Appeal affirmed the general test to be applied to whether a question should be put to a jury:

Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be “reasonable evidence” to allow a question to go to the jury. As Meredith J.A. stated in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.) at para. 50:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative.

[4] See also: Ayub v. Sun, 2016 ONSC 6598 at paras. 53 – 54.

[5] The test has also been stated as follows (see Walker v. Delic [2001] O.J. No. 1346 (S.C.J.)):

[A] question need not be put to the jury unless there is some evidence on which a jury, acting judicially in accordance with that judge’s instructions on the law could reasonably make a choice in arriving at a finding.

[6] In the present case the plaintiff takes the position that there is evidence from which the jury could answer the question regarding the value of the plaintiff’s loss of earning capacity.

[7] That evidence is comprised of the following:

(a) The plaintiff operates a house cleaning business. She usually cleans 1 or 2 houses per day, sometimes 3 houses. She charges $125 or $150 per house. She is assisted by her boyfriend. She usually takes all the money, but sometimes gives some to her boyfriend. (b) Dr. Ogilvie-Harris, the orthopaedic surgeon called on behalf of the plaintiff, testified that persons with chronic pain syndrome generally lose 5 to 10 years of their working life expectancy. They either retire early or work part-time. He indicated that he was not able to say where the plaintiff fell within this range.

[8] It is true that the failure to provide expert actuarial evidence in connection with a loss of income or loss of future earning capacity claim is not necessarily fatal (see: Fiddler v. Chiavetti, 2010 ONCA 210 at paras. 63 – 65) and the standard of proof for such claims is the lower standard of “real and substantial possibility of loss in the future” rather than on the balance of probabilities. This does not, however, detract from the fact that claims for loss of income and loss of future earning capacity are claims for pecuniary damages (Hodgson v. Walsh, [1998] O.J. No. 3286 at paras. 66 and 79) and the onus is on the plaintiff to prove this claim on the basis of the applicable standard of proof.

[9] In this case there was no evidence adduced with respect to the plaintiff’s earning capacity either before the accident or after the accident. The jury has no evidence with respect to the plaintiff’s current annual income or her annual income in any year. Without some evidence of the plaintiff’s earning capacity either before the accident or after the accident I do not see how a jury could be given instructions on how to calculate the loss of earning capacity. “Loss” assumes a starting point from which something is subtracted. As the Divisional Court stated in Ayub v. Sun, at para. 62: “it would be problematic to require a jury to try and calculate the income loss without evidence before them of income or expectation of income.”

[10] In this case, based on the evidence adduced at trial, putting the question of loss of earning capacity to the jury would be to invite them to speculate and pull a dollar figure out of thin air. In my view the following statement from the Ontario Court of Appeal in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 (at para. 65) regarding the ability of a trial judge to quantify damages applies with equal force to a jury:

[I]t is not open to a trial judge to postulate a method for the 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.

[11] In my view there is not sufficient evidence on which a properly instructed jury, acting judicially in accordance with the judge’s instructions on the law, could reasonably calculate or quantify the plaintiff’s loss of earning capacity. Accordingly, the question regarding loss of earning capacity will not be put to the jury.

Justice R.E. Charney Released: May 31, 2017