Court File and Parties
COURT FILE NO.: CV-14-119327 DATE: 2022-04-25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
AFSHAN AGHA Plaintiff – and – MAURICE MUNROE AND LIFELAB INC. and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendants
Counsel: Syed Raza, for the Plaintiff Mark Elkin, for the Defendants Maurice Munroe and LifeLabs Inc.
HEARD: April 4, 5, 6, 7, 11, 12, 13, 14
Reasons Re Late Service of Expert Reports and Jury Questions
M.L. EDWARDS, R.S.J.:
Overview
[1] This matter involves a motor vehicle accident which occurred in 2013. A pre-trial was conducted by Healey J. on August 30, 2018. The delay in the trial was impacted by the COVID-19 pandemic. These Reasons primarily relate to the non-existence of any expert reports that address the Plaintiff’s claim for past and future loss of income, as well as the absence of any expert report that addresses the Plaintiff’s claim for past and future medical rehabilitation needs and housekeeping needs. These Reasons also address the Questions that were allowed to go the Jury.
The Absence of Expert Reports
[2] The jury in this matter was selected April 4, 2022. When the jury was selected, they were advised that this matter would take between two and three weeks. After the jury was picked, I had some preliminary discussions with counsel in the absence of the jury. As a result of those discussions, it became apparent that the Plaintiff did not have any expert reports that would address the issue of past and future income loss, as well as the Plaintiff’s claim for past and future medical rehabilitation needs. When I inquired as to why Plaintiff’s counsel did not have any expert reports addressing these issues, I was simply advised that the Plaintiff could not afford to engage these experts.
[3] Shortly after the initial preliminary discussions with counsel, Plaintiff’s counsel advised that he had spoken to unnamed experts who had indicated they could provide him with reports some time during the week of April 11, 2022, with no specific fixed date for such delivery. Mr. Elkin strongly opposed any late delivery of such expert reports, indicating that he would not have an opportunity to obtain responding reports, thus resulting in a potential mistrial and/or adjournment of the trial.
[4] In essence, what this court was asked to consider was the exercise of its discretion for the late service of expert reports addressing the issues of loss of income and the claim for the Plaintiff’s future medical rehabilitative needs. I indicated to counsel that I would not grant leave for late service of these expert reports and would provide written reasons in due course. These are my written Reasons.
Rule 53.03 of the Rules of Civil Procedure as it existed prior to March 31, 2022
[5] Rule 53.03, as it existed prior to the end of March 2022, required a party who intended to call an expert witness at trial to serve the expert’s report not less than 90 days before the pre-trial conference. Any responding report had to be served no less than 60 days before the pre-trial conference. It is worth repeating that the pre-trial in this matter took place on August 30, 2018, that is approximately three and a half years before the trial which commenced on April 4, 2022.
[6] While Rule 53.03 provided timelines within which expert reports were supposed to be served, Rule 53.08 provided what I would loosely describe as an escape clause for anyone who was in non-compliance with Rule 53.03(1) and (2). Specifically, Rule 53.08 provided:
If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. (Emphasis added)
[7] The late delivery of expert reports prior to March 30, 2022 was the subject of considerable negative judicial commentary. I review in the next few paragraphs a sampling of the case law where a number of judges commented on the late delivery of expert reports and the impact this was having on pre trials and trials.
[8] In Prabaharan v. RBC General Insurance Co., 2018 ONSC 1186, Stinson J. considered the costs for a pre-trial conference that had been jeopardized by a failure to file expert reports on time. In that regard, Stinson J. commented at paras. 12-13 as follows:
The defendant’s failure to serve its experts reports on a timely basis – or even to take any steps in furtherance of this obligation – was a flagrant breach of the requirements set out in rule 53.03(1) and (2). An experienced litigant such as the defendant, cannot defer indefinitely its duty to provide responding expert reports. Indeed, it smacks of unfairness for such a party to, on the one hand, require the plaintiff to provide medical evidence to meet the requirements of O. Reg. 461/96 as amended by O. Reg. 381/03, yet be unprepared to disclose its case on that fundamental issue in response.
The other, obvious, consequence of the failure of the defendant to serve any expert reports as required by the rules was that there was no responding material for the other side or the presiding judge to evaluate and discuss at the PTC. This had the effect of impairing significantly the PTC settlement process. As commented previously, whether this is a case that could have settled at the PTC stage is impossible to know, because the defendant failed to comply with the rules.
[9] Given the failure of the Defendant to serve its expert reports in a timely manner as required by Rule 53.03, Stinson J. ordered costs to the Plaintiff but reduced those costs by one third given the Plaintiff’s own failure to fully comply with the Rules regarding timely service of expert reports.
[10] In Balasingham v. Desjardin Financial Security, 2018 ONSC 1792, Firestone J. was asked to consider a request by the Defendant to adjourn a trial at a case conference in March 2018, where the trial was fixed to commence at the beginning of April 2018. The Defendant argued for the adjournment on the basis that the Plaintiff had served new expert reports 30 days prior to the pre-trial which had occurred on February 15, 2018. The defence argued that it needed responding expert reports. The Plaintiff opposed the request for an adjournment. In denying the request for adjournment, Firestone J. stated at para. 7:
This case illustrates the problems which arise from the late delivery of expert reports and the failure of the parties to agree on a schedule (timetable) for delivery of all expert reports early in the litigation process.
[11] At para. 11, Firestone J. continued:
Notwithstanding the clear time frames imposed under rule 53.03, late requests to adjourn trials are still being made, both at pre-trial conferences and before trial, as a direct result of the ongoing practice of late delivery of expert reports by one or both parties.
[12] Firestone J. completed his Reasons at para. 12, by stating:
This practice of late delivery of expert reports despite the passage of agreed upon and scheduled delivery dates must stop.
[13] In another decision of Firestone J., Stadnyk v. Dreshaj, 2019 ONSC 1184, a request was made by the defence for their costs thrown away as a result of a last minute trial adjournment. The first pre-trial had taken place on May 30, 2018, with a second pre-trial having been conducted on October 2, 2018. Prior to the first pre-trial, the Plaintiff had not served medical reports in support of their claim for general damages and income loss, nor was any timetable agreed to for the delivery of expert reports. Ultimately, the Plaintiff served various reports late, including one eleven days prior to the October 18, 2018 trial date. Commenting on this situation, Firestone J. noted at paras. 8 to 9:
It is the joint responsibility of all parties to comply with rule 53.03(2.2) in order to avoid disputes such as the one before me.
In a situation where one side or the other will not agree to the required schedule for the delivery of expert reports, counsel should immediately request a chambers appointment (case conference) pursuant to rule 50.13 in order to have the court fix one.
[14] Ultimately, Firestone J. awarded the Defendant their costs thrown away as a result of the late adjournment of the trial, and observed that the Plaintiff’s late delivery of expert reports had “set the chain of events in motion that ultimately necessitated the trial adjournment”.
[15] The more recent comments of Daley J. in Khan v. Baburie, 2021 ONSC 1683, are worth repeating in the context of the issue of late service of expert reports. At para. 45 of his Reasons, Daley J. stated:
The late service of export reports, contrary to the requirements of the Rules, has been a chronic and frequent issue in the timely management of the civil litigation before this court. Counsel seem to have the belief that the requirements of compliance with the Rules are mere recommendations or suggestions and that as such the breach of the Rules will really have no consequences. Counsel are sorely mistaken in that belief.
[16] In the context of a request to allow for the late service of an expert’s report, the following comments of D. Wilson J. in myNext Corporation v. Pacific Mortgage Group Inc., 2019 ONSC 4431, at para. 39, are worth repeating to emphasize the point that the issue of late service of expert reports was, and remains a chronic issue in our court. At para. 39:
Pacific breached Rule 53.03, which is an important rule governing the receipt of expert evidence. Late service of expert reports is responsible for the vast majority of adjournments of fixed trial dates. No explanation has been offered for the breach; litigants cannot play fast and loose with the Rules of Civil Procedure and ignore court orders…
The New Rule
[17] The new provisions of Rule 53.03 became effective on March 31, 2022. O. Reg. 18/22, amended various rules of the Rules of Civil Procedure (the Rules). All of the changes effected by this regulation are important, but in the context of the Plaintiff’s request for late service of the expert reports addressing the Plaintiff’s claim for past and future income loss and her future medical rehabilitative needs, the amendments to Rule 53.08(1) are critically important as it relates to motions such as the one before this court. Rule 53.08(1) now reads:
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,
(a) there is a reasonable explanation for the failure; and
(b) granting the leave would not,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial.
[18] Fundamentally, the aforesaid amendment, in my view, will result in a change in how trial judges will be required to consider motions that essentially ask for an indulgence resulting from the late service of an expert report and the admissibility of that evidence at trial. Where the old rule provided that leave of the trial judge “shall be granted”, the new rule now is permissive using the language “may be granted”.
[19] In addition, the new rule sets forth a new test which will guide the trial judge’s exercise of his or her discretion. The onus will be on the party seeking the indulgence to allow for the late service of the expert report and the admissibility of the expert’s evidence at trial. The party who is in default of their obligations with respect to the timely service of an expert’s report will have to show that there is a reasonable explanation for the failure to serve an expert report, and that the granting of leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment, or cause any undue delay in the conduct of the trial.
[20] As this new rule applies to the Plaintiff in this case, the chronology of what has transpired is important in the court’s exercise of its discretion. At the pre-trial before Healey J. on August 30, 2018, the following Endorsement was made as part of the pre trial judges report:
On consent, tort defendants will produce surveillance video and accompanying reports, all productions arising out of the Rule 30.10 motion from police, and will advise of policy limits within 30 days.
Any additional expert reports to be served by January 31/19; and responding reports by April 15, 2019. (emphasis added)
The Report of the Pre-trial Judge was signed by Mr. Raza and Mr. Elkin.
[21] By the time the trial started on April 4, 2022, not only was the Plaintiff in breach of the old Rule 53.03, but the Plaintiff was also in breach of the Order made by Healey J. at the pre-trial.
[22] The only explanation provided by Plaintiff’s counsel as to why there were no expert reports addressing the Plaintiff’s loss of income claim and her claim for medical rehabilitative expenses, was the cost of those expert reports.
[23] Since my appointment to this court I have conducted hundreds of civil pre-trials, the vast majority of which are usually claims arising out of motor vehicle accidents. I can, in my view, take judicial notice of not only the increasingly high cost of expert reports, which often become an impediment to the resolution of many cases, but I can also take judicial notice of the fact that most, if not all Plaintiffs that I have seen at a civil motor vehicle accident pre-trial, are represented by counsel who are representing the Plaintiff on a contingency fee basis where Plaintiff’s counsel is directly or indirectly funding the cost of the disbursements.
[24] As it relates to the specific facts before me, I have no evidence with respect to the funding of the Plaintiff’s experts, including the non-funding of the retainer of an accountant or a life care planner in relation to the loss of income claim and the claim for medical rehabilitative expenses. While Mr. Raza suggested that his client simply could not afford to engage an accountant or life care planner, I had no evidence before me to support that submission. There is nothing in the Report of the Pre-trial Judge and the Order made that would suggest there was any financial impediment with respect to the service of any additional expert reports by January 31, 2019.
[25] The new rule provides that leave “may be granted”. The old rule provided that leave “shall be granted”. The court, when confronted with a request for the late service of an expert’s report to enable a party to call that expert at trial must be satisfied that there is a reasonable explanation for the failure to serve the experts reports within the timelines specified by the Rule. In my view, the explanation for the failure in this case was not a reasonable explanation.
[26] The court in the exercise of its discretion, even assuming that there was a reasonable explanation for the failure to serve the expert reports in a timely manner, also requires the party seeking the indulgence, i.e. the Plaintiff, to show that there is no prejudice to the opposing party that cannot be compensated for by costs or an adjournment, or that the granting of leave would not result in undue delay in the conduct of the trial.
[27] On the facts as they presented in court on April 5, 2022, a jury had been empanelled. The only witnesses that the Plaintiff intended to call was the Plaintiff, the Plaintiff’s daughter, three medical legal experts and a treating doctor. As the trial unfolded it became readily apparent that had the three medical legal experts been called in a timely manner, as opposed to one expert per day, this case likely could easily have been completed within five to six days.
[28] Plaintiff’s counsel indicated to the court that he could obtain the missing expert reports some time during the middle part of the week of April 11, 2022.
[29] If this court had granted leave to the Plaintiff to obtain these expert reports, it would have had the inevitable result of having to adjourn the trial for some considerable period of time to allow the defence to obtain responding reports. In a situation where the jury had been advised that the trial would be completed within a period of two to three weeks, it would have been a delay that would have been completely unfair to the jury and would have caused “an undue delay in the conduct of the trial”.
[30] For these reasons, this court refused to allow the Plaintiff’s request to late serve expert reports. The purpose of the new rule is, in my view, clear and obvious. The first purpose is to send a very loud and clear message to all sides of the Bar, that expert reports are to be served in a timely manner and in accordance with the provisions of Rule 53.03(1) and (2).
[31] There is a good reason to require the timely exchange of expert reports prior to the pre-trial. A pre-trial is not just an an administrative step in a proceeding. It is a step that has two fundamental purposes. The first is to explore the possibility of settlement. The second important purpose is to deal with trial management issues. The comments of Stinson J. in Prabaharan, at paras. 2 and 3, are worth repeating, as in my view they are equally applicable to the new rule:
A PTC is an occasion and an opportunity for each side to develop a better understanding of their own and their opponent’s case. More importantly, it is also an opportunity for each side to receive guidance and feedback from the presiding PTC judge. Based upon the contents of the PTC memos and other evidence (such as copies of expert reports) the presiding judge can discuss with a party the strengths and weaknesses of their case and assist them in re-evaluating their (and their opponent’s) position on settlement.
Where one or both parties fail to follow the rules, the purpose of the PTC cannot be achieved. This is unfair to the opponent and the Court, because the time of each is wasted and the otherwise useful feedback cannot be provided. It also has the possible result of clogging the system with a case that should have settled at (or in the wake of) the PTC, but could not because inadequate information was available at the relevant time.
[32] Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word “shall” to “may”, the exercise of the court’s discretion will, in my view, result in far fewer adjournments and more productive pre-trials. There will always be circumstances that are beyond the control of counsel and the parties which will fall within the definition of a “reasonable explanation” for failing to comply with the timelines for the service of expert reports. In this case, no such reasonable explanation was provided to the court.
Questions to the Jury
[33] In the normal course in a motor vehicle personal injury action, it is very common to see questions to the jury that will incorporate questions along the following lines:
a) In what amount if any do you assess general damages?; b) In what amount if any do you assess the Plaintiff’s past loss of income?; c) In what amount if any do you assess the Plaintiff’s future loss of income?; d) In what amount if any do you assess the Plaintiff’s past claim for medical rehabilitative expenses?; e) In what amount if any do you assess the Plaintiff’s future loss of damages for medical rehabilitative expenses?; f) In what amount if any do you assess to the Plaintiff’s claim for past housekeeping expenses?; and g) In what amount if any do you assess the Plaintiff’s claim for damages for future housekeeping expenses?
[34] There may be other questions, but the aforesaid represent fairly typical questions that would go to a jury in a personal injury motor vehicle action.
[35] It is an important step towards the preparation of a jury trial, that counsel for both the Plaintiff and the Defendant confer with respect to the questions that they will ask the court to submit to the jury. More often than not, there is a consensus with respect to those questions. Where there is no consensus, it is equally important that those issues be addressed at the beginning of the trial and not the end of the trial. The questions that will go to the jury frame the issues that counsel will ultimately present their case around, including the witnesses that will be called; how their examination in-chief will be conducted; and the cross-examination.
[36] When I asked counsel whether they had an agreement with respect to the questions that would be submitted, it was obvious that no such agreement had been reached. The defence took the position that the only question that could go to the jury was the first question set forth above, i.e., in what amount if any do you assess general damages. Plaintiff’s counsel, on the other hand, wanted the full gamut of the aforesaid questions to go to the jury. I allowed counsel to make submissions with respect to those questions, and ultimately I determined that the only question that could go to the jury was the general damage question. These Reasons explain why I refused to allow any other questions to go to the jury.
The Legal Principles
[37] The general test which the court should apply in determining whether a question should be put to a jury is set forth in the Court of Appeal decisions in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, where at para. 51 the Court stated:
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[.]
[38] The aforesaid test set forth by the Court of Appeal in M.B., has also been stated as follows: (See Walker v. Delic, [2001] O.J. No. 1346 (SCJ).)
A question need not be put to the jury unless there is some evidence in which a jury, acting judicially in accordance with that judge’s instructions on the law could reasonable make a choice in arriving at a finding.
The Legal Principles Applied
The Plaintiff’s Loss of Income and/or Loss of Competitive Advance Claim
[39] To support the Plaintiff’s claim for loss of income, Plaintiff’s counsel called his client and submitted a number of documents as exhibits, including her income tax returns which were summarized in Exhibit 23. For the years 2000 through 2006 inclusive, the Plaintiff was not working for a number of reasons, one of which related to maternity leave. Between 2007 and 2013 inclusive, the Plaintiff’s tax return reveal the following:
2007 - $4,336.00 (T4) 2008 - $9,566.00 (T4) 2009 - $9, 566.00 (T4) 2010 - $3,689.00 (EI) 2011 - $959.00 (T4) 2012 - $3,012.00 (T4) $694.00 (Gross commission) $4,927.00 (Net commission income) Total Income: $1,285.00 2013 - $3,913.00 (T4)
[40] The Plaintiff was cross-examined with respect her income in 2008 and 2009. For both of those years she declared identical amounts of $9,566.00. It was suggested to her in cross-examination that this represented income splitting with her husband. The Plaintiff sought to evade this line of questioning, and in my view she failed to answer the question that was put to her by counsel. The fact that the plaintiff’s income in 2008 and 2009 was identical lends credibility to the assertion that the plaintiff’s only income in those two years came from income splitting with her husband.
[41] The Plaintiff’s evidence revealed that immediately prior to the accident, she had quit her job for reasons unrelated to the accident. Her evidence also revealed that she had been involved in another motor vehicle accident in 2008, and that she had to stop the work that she was doing due to back pain.
[42] Subsequent to the 2013 accident, the evidence revealed that the Plaintiff was away overseas helping with her parents who were unwell. She was out of the country for well in excess of a year. The medical evidence also revealed that the Plaintiff was being treated for cancer after the 2013 accident.
[43] As previously noted, the Plaintiff did not have any expert evidence from an actuary or an accountant that would assist the jury in calculating the Plaintiff’s loss of income either past or future.
[44] The Insurance Act, R.S.O. 1990, c. I. 8, provides in section 267.5(1) that the Plaintiff’s past loss of income is calculated at seventy percent of the Plaintiff’s gross pre-accident income. The Plaintiff is entitled to recover for one hundred percent of her future loss of income to her anticipated age of retirement.
[45] Plaintiff’s counsel presented no evidence from his client with respect to her anticipated age of retirement. Plaintiff’s counsel simply suggested that it is a well known fact that people retire at age 65. In this case, because the jury would not have had the evidence from an accountant or actuary, it would have been pure speculation on their part with respect to how they would calculate the present value of the Plaintiff’s future loss of income; to what age; and what if any contingencies they should take into account. All of these questions and more would have been addressed had the Plaintiff called an accountant or actuary.
[46] The theory of the Plaintiff, essentially, would have the jury believe that if the subject motor vehicle accident had never occurred, she would have continued in her employment with the employer she was employed at immediately prior to the accident. The difficulty with this theory, as I already indicated, is the Plaintiff’s own evidence which was that she quit this job for reasons totally unrelated to the accident. Specifically, the plaintiff testified she quit her job because her request to take an extended 2-month vacation was denied by the employer.
[47] Even if the theory of the Plaintiff was that she was not going to continue in her employment with that particular employer, she called no evidence whatsoever with respect to what employment might have been available to her after the accident. The Plaintiff called no evidence with respect to what salary or hourly rate she might have received had she been employed post-accident. The Plaintiff called no evidence with respect to any temporary layoffs that she might have been exposed to, nor any permanent layoffs that she might have been exposed to had this accident never occurred. The Plaintiff also called no evidence as to what efforts she made with respect to seeking out other employment. Fundamentally, as Turnbull J. noted in Loye v Bowers, 2019 ONSC 7198 at para. 36:
…The jury has no way of knowing with any degree of accuracy how to calculate a loss of income from the time of the accident to the date of trial from the information provided by the plaintiff. At best it would be a guess. It simply is not fair to the defendant to not provide sufficient information so that the theory of the plaintiff or even better, the calculations of the plaintiff can be challenged in cross examination and possibly with countering evidence.
[48] The words of the Divisional Court in Ayub v. Sun, 2016 ONSC 6598, at para. 62, are equally applicable to the facts before this court, where the Divisional Court stated:
…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.
[49] As well, the following admonition from the Ontario Court of Appeal in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, at para. 65, further reinforces my view why the jury should not be expected to answer any questions with respect to the Plaintiff’s past or future wage loss claim. Specifically, the Court of Appeal, in the context of a judge alone trial, stated:
…it 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.
[50] While the aforesaid comments of the Ontario Court of Appeal in TMS were made in the context of a judge alone trial, in my view they are equally applicable in the context of a jury trial where Plaintiff’s counsel, on the evidence, would essentially be asking the jury to employ an approach to the quantification of damages that was never advanced prior to trial.
[51] Having considered all of the evidence, or absence of evidence, it was my view that to allow the jury to consider a question directed at calculating the Plaintiff’s past and or future loss of income would have been to ask the jury to essentially pick a figure out of thin air. It would, in my view, have been nothing more than speculation for the jury to have considered the Plaintiff’s claim for past or future loss of income. There was no evidence upon which a jury properly instructed in the law could reasonably come to the conclusion that the Plaintiff had, in fact, suffered a past or future wage loss.
[52] Plaintiff’s counsel suggested that if this court was not prepared to allow the Plaintiff’s claim for past or future wage loss to go to the jury, then he should at least be allowed to advance a loss of competitive advantage claim. The essential elements of a claim for loss of competitive advantage are summarized in (Re) Conforti, 2012 ONSC 199. At para. 34 of his Reasons, Wilton-Siegel J. summarized the essential elements as follows:
…The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:
- The plaintiff has been rendered less capable overall from earning income from all types of employment;
- The plaintiff is less marketable or attractive as an employee to potential employers;
- The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
- The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.
[53] Other than the evidence of the Plaintiff and the three expert medical witnesses who testified on her behalf, there was no evidence presented to the jury with respect to what job opportunities the Plaintiff might have had but for the injuries she alleges that she suffered in the subject accident. Given her relative sporadic employment prior to the subject accident, as well as the various events which took place post-accident that kept her away from employment, the jury, in essence, had little to no evidence from which they could assess the Plaintiff’s claim for damages for loss of competitive advantage. In my view, to allow the Plaintiff’s claim for damages for loss of competitive advantage to have gone to the jury would again have resulted in the jury doing little more than speculate and pulling a dollar figure out of thin air. It was incumbent on the Plaintiff to put before the jury evidence that would have allowed them to do something more than pure speculation. The following comments of Turnbull J. in Loye at para. 15, are equally applicable to the facts before this court. Specifically, Turnbull J. stated:
…The defendant had no basis to know how the plaintiff planned to calculate his claim. No expert reports or other functional abilities assessments were provided. No accounting estimations, present value calculations, contingency allowances or medical evidence has been provided to the court or to the defendant. This claim lacks the evidentiary basis to be put to the jury and it is so ordered.
The Plaintiff’s Claim for Damages for Past and Future Medical Rehabilitative Expenses and Housekeeping Expenses
[54] In order to succeed in a claim for damages for past medical rehabilitative expenses and past housekeeping expenses, it is incumbent on the Plaintiff to present evidence to the jury that expenses were incurred and that the expenses were incurred as a result of injuries suffered in the accident. In this case, no receipts of any kind were presented to the court with respect to expenses allegedly incurred by the Plaintiff for past medical expenses or past housekeeping expenses that might not otherwise have been submitted and paid by her own statutory accident benefit insurance company.
[55] As it relates to the claim for future expenses that might be incurred for medical and/or rehabilitative needs and/or housekeeping needs, the Plaintiff presented no medical evidence with respect to the type of expenses that might reasonably be incurred in the future. The Plaintiff called no evidence with respect to the nature and frequency of any treatments and medications that might be required in the future. The Plaintiff called no evidence as to the cost of any future treatments, nor was there any evidence called as to how the jury would calculate the present value of such expenses. The Plaintiff called no evidence as to the duration of any treatment that the Plaintiff might require. In short, the Plaintiff called no evidence that would support any claim for either past or future awards for damages for medical rehabilitative needs or housekeeping needs.
[56] As it relates to the Plaintiff’s claim for past and future medical rehabilitative needs and her claim for damages for past and future housekeeping expenses, the reasoning of Di Tomaso J. in Day v. Haiderzadeh, 2017 ONSC 7319, at paras. 22-27, are equally applicable to the facts before this court. I entirely agree with DiTomaso J. that the entitlement of a Plaintiff to compensation for future care costs requires medical justification. In the absence of such justification, which is often found in the form of an expert opinion from an occupational therapist or lifecare planner, the jury would simply be asked to speculate in answering any question that addresses these claims for damages.
Postscript
[57] For the reasons set forth above the only question that went to the jury was a question that required the jury to assess the Plaintiff’s general damages. Plaintiff’s counsel suggested the jury should assess general damages in the range of $80,000 to $150,000. Defence counsel suggested a range of zero to $10,000.
[58] This was a chronic pain case where the assessment of the plaintiff’s credibility was fundamental to the outcome. The jury awarded the Plaintiff $25,000 in general damages. While the jury did not agree with the position of the defence it is equally fair to suggest the jury was not impressed with the credibility of the plaintiff as their award did not come close to even the bottom end of the range suggested by Plaintiff’s counsel. After deducting the statutory deductible the ultimate award to the Plaintiff is zero dollars.
[59] The outcome in this case might cause all members of the personal injury Bar to perhaps consider having this type of case tried under the Simplified Rules where the trial must be completed in 5 days or less; where there is a hard cap on costs and disbursements ($50,000 and $25,000 respectively); where the evidence in chief of witnesses and experts is conducted by affidavit; and where a jury is not permitted.
[60] If counsel are unable to agree on costs and the threshold issue they may contact me through my judicial assistant to arrange to deal with these issues.
M.L. Edwards, R.S.J.
Released: April 25, 2022