Court File and Parties
COURT FILE NO.: CV-17-2146-00 DATE: 2023 05 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Laelana Ali Plaintiff
- and -
Anam Irfan and Syed Ahmed Defendants
COUNSEL: Darryl Singer and Allan Cocunato, for the Plaintiff Ryan D. Truax, for the Defendants
HEARD: May 25, 2023
REASONS FOR JUDGMENT
LEMAY J
[1] The Plaintiff, Laelana Ali, was riding her bicycle on the evening of May 20th, 2015 along McLaughlin Road in Mississauga when it was struck by a car being driven by the Defendant, Anam Irfan. The car was owned by Ms. Irfan’s father, Syed Ahmed. The Defendants have admitted liability. Before trial, the parties had resolved most of the outstanding issues. The only issue remaining was whether the Plaintiff had suffered a Loss of Competitive Advantage (“LOCA”) as a result of the accident.
[2] A jury trial took place before me commencing on May 23rd, 2023. The Plaintiff testified, and we heard evidence from a supervisor and the Plaintiff’s father. At the conclusion of the Plaintiff’s case, the Defendants brought a non-suit motion. The Defendants were put to their election and decided to call Ms. Irfan to testify very briefly. The evidence then concluded.
[3] In addition to bringing a non-suit motion, the Defendants argued that the LOCA claim should not be left to the jury as there was no “reasonable evidence” on which the jury could find for the Plaintiff. Both motions were argued in the absence of the jury last Friday. On Monday of this week, I advised the parties that the Defendants’ motions were both dismissed and that I would provide written reasons. These are those reasons.
Background
a) The Plaintiff’s Pre-Accident History
[4] At the time of the accident, the Plaintiff was twenty-nine years old. The Plaintiff had attended Ryerson University, but had been placed on academic suspension. She had also attended George Brown College, but had been similarly unsuccessful.
[5] The Plaintiff had worked in the automotive industry, including at a family business that was engaged in selling used cars prior to the accident. Her last employment had been with RBC, where she had worked from December of 2013 to January of 2014. The Plaintiff was not working or going to school at the time of the accident.
[6] At the time of the accident, the Plaintiff had been receiving treatment for stress and anxiety. Numerous medical notes were filed showing this treatment was ongoing prior to the accident. The documentation suggested that this was a significant issue for the Plaintiff in the years before the accident. However, the Plaintiff testified that her anxiety had been getting better before the accident.
[7] In cross-examination, the Plaintiff was asked about her evidence on discovery. She acknowledged that, on discovery, she stated that the reason she did not work at her father’s company in 2014 and 2015 was that she was not mentally stable.
b) Post-Accident Events
[8] The accident itself happened on the evening of May 20th, 2015. The Plaintiff was bicycling southbound along McLaughlin Road at the corner of McLaughlin and Avonwick Avenue when her bicycle was struck by the car driven by one of the Defendants, Ms. Irfan.
[9] The Plaintiff was conscious and able to stand up at the scene. She was taken to hospital that evening and was released after some tests were done. She had some medical follow up with her family doctor, Dr. Sarsam. The Plaintiff testified that she had ongoing problems with anxiety and with her shoulder or back and that these problems continue up to today.
[10] In the course of argument, I asked counsel for the Plaintiff whether there was any medical evidence of any ongoing shoulder and back problems. Counsel confirmed that there was no medical evidence before the Court supporting the Plaintiff’s evidence.
[11] I also confirmed with counsel that Dr. Sarsam’s clinical notes and records, which were filed as an exhibit, actually contradict the Plaintiff’s evidence about whether she had ongoing anxiety problems over the last three years. There is more than one entry in Dr. Sarsam’s notes and records that says that the Plaintiff’s anxiety is in remission.
[12] Since the accident, the Plaintiff enrolled in a general arts program at Georgian College in Barrie. From that program, she was able to transfer to a degree program offered in Barrie by Lakehead University and obtain an Honours Bachelor of Arts and Sciences in Interdisciplinary Studies. The Plaintiff was also able to obtain a Bachelor’s in Education from Lakehead, a Master’s of Education from the University of Ottawa and her qualifications to teach elementary school in the Province of Ontario. The Plaintiff’s grades in these programs were all “A”’s and “B”’s.
[13] The Plaintiff testified that she had serious problems with her roommates in the first year that she was at Georgian College. According to the Plaintiff, these problems resulted in the Plaintiff being detained by police on two separate occasions and having to move out of the accommodations. The Plaintiff testified that these incidents were as a result of her psychological problems, which had been caused or contributed to by the accident.
[14] The Plaintiff also testified that she had required accommodations throughout her university career since the accident because of the accident. In the Plaintiff’s words, she was a student with special needs. The Plaintiff provided other examples of problems that she had had in completing her academic training.
[15] After completing her training, the Plaintiff was originally employed as a lunchroom supervisor at Mackville Public School, which is a school in the Peel District School Board. She would occasionally work as a teaching assistant at this school board on an as-needed basis. She is currently employed as an occasional teacher in the Hamilton-Wentworth District School Board.
[16] The Plaintiff also testified about her social life since the accident. She testified that she does not have any friends at this point and that she does not like to have people over to the house where she lives with her parents. She testified that this social isolation has arisen since the accident and is as a result of the anxiety that she has been suffering from since that time. The Plaintiff’s father provided similar testimony about the social isolation.
[17] Finally, the Plaintiff testified about the progression of teaching positions. She testified that she started out as an occasional teacher. In that position, she would be offered opportunities to fill-in for a teacher who was going to be absent for a day or two. From being an occasional teacher, you can seek employment as a Long-Term Occasional (“LTO”) teacher. LTO’s fill-in for a longer absence and are paid more money than occasional teachers. These positions are obtained by way of an interview.
[18] The Plaintiff testified that she interviewed for an LTO position in December of 2022 and did not obtain it. The Plaintiff testified that she was uncomfortable with the LTO positions because of her anxiety as a result of the accident.
c) The Claim for LOCA
[19] The jury did not hear any expert evidence, either from a doctor or from a financial professional. As a result, the Plaintiff’s claim for a loss of competitive advantage is based on her testimony and some other pieces of evidence. To summarize, the evidence in support of the LOCA claim is as follows:
a) The Plaintiff’s evidence, corroborated by the testimony of her father, that she has been having ongoing psychological problems since the accident.
b) The Plaintiff’s evidence that occasional teachers are paid $125.00 for a half day’s work and $250.00 for a full-day’s work. LTO’s on the other hand are, on the Plaintiff’s evidence, paid $300-$320 per day. The principal of Mackville Public School, Robin Perri, testified that LTO’s are also entitled to benefits.
[20] In argument, Plaintiff’s counsel did not commit to either a specific amount or a specific method to calculate the LOCA that his client is claiming.
The Positions of the Parties
[21] As I have noted, at the conclusion of the Plaintiff’s case, the Defendants brought a non-suit motion. The Defendants were put to their election, and elected to call evidence about the accident itself from Ms. Irfan. They then indicated to me that they wished a ruling on the non-suit application or, in the alternative, a ruling that the questions relating to the claim for LOCA could not be put to the jury.
[22] The Defendants’ position is that there is no medical evidence to support the Plaintiff’s claims that the accident continues to affect her. As a result, the questions on LOCA should not be put to the jury. In counsel’s view, there has to be some evidence to support a finding by the jury. In this case, the evidentiary record is so thin that no jury, acting judicially, could come to a verdict. The jury should not be forced to guess as to the damages, and the motions should be granted.
[23] The Plaintiff’s position was that there was sufficient evidence from the Plaintiff to justify leaving the LOCA questions to the jury. In that respect, Plaintiff’s counsel pointed, inter alia, to the evidence I have outlined at paragraph 19. Plaintiff’s counsel argued that a loss of competitive advantage is a future benefit that isn’t necessarily specifically quantified. Instead, it can be determined in much the same way as general damages. As a result, the motion should be dismissed and the questions on LOCA should be left to the jury.
[24] In order to resolve this motion, I will begin by reviewing the law on the scope of a loss of competitive advantage. I will then consider the test for a non-suit and the test for deciding whether to put a question to a jury and explore whether there are any differences in the two tests. Finally, I will apply the relevant law to the facts.
Loss of Competitive Advantage
[25] Damages for a loss of competitive advantage are given as recognition of the fact that the plaintiff’s position in the labour market has been compromised because of the injuries. Mundinger v. Ashton, 2019 ONCA 7161 at para. 28. The loss of earnings capacity is the loss of an asset. Loye v. Bowers, 2019 ONSC 7198 at para. 40.
[26] In Conforti (Re.), 2015 ONSC 100, Wilton-Siegel J. of this Court stated (at para. 34):
[34] The essential elements comprising the concept of a loss of competitive advantage are expressed in Pallos v. Insurance Corp. of British Columbia, at para. 24, citing an excerpt from Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.), at p. 399, where in turn Mr. Justice Taggart quoted with approval from Brown v. Golaiy, [1985] B.C.J. No. 31, at para. 8:
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.
Substantially similar statements appear in most of the cases cited above.
[27] Determining whether there is a loss of competitive advantage is a question of fact. A lack of expert evidence will not necessarily be fatal to establishing a claim for loss of competitive advantage. Indeed, in some cases, it is possible that the Plaintiff may not have the resources to obtain an expert, but might have other persuasive documents in their possession to support their claim. Fiddler v. Chiavetti, 2010 ONCA 210, (2010) 317 D.L.R. (4th) 385 at para. 64.
[28] Finally, a loss of competitive advantage is a prospective loss. As a result, the standard of proof is the lesser “real and substantial possibility” standard. However, the burden of proof still rests with the Plaintiff. Day v. Haiderzadeh, 2017 ONSC 7319. See also Schrump v. Koot at para 22 (C.A.).
[29] With these principles in mind, I now turn to the tests to be applied.
The Tests to be Applied
[30] The Defendants are seeking to have the action dismissed either by way of a non-suit motion or by way of having me decline to put the questions about a loss of competitive advantage to the jury. The Defendants argue that the test for a non-suit is a higher bar for them to meet than the test for me to remove a question from the jury’s consideration. Plaintiff’s counsel did not really dispute that the tests were different.
[31] Having reviewed the cases provided by both counsel, I agree that the tests are formulated using different words. For reasons that I will explain, it is less clear to me that the tests are intended to apply a significantly different standard to the question of whether an issue (or issues) should be left to the trier of fact.
[32] I start with the test for a non-suit. It has been described by the Court of Appeal in Calvin Forest Products v. Tembec Inc. as follows:
[13] The legal test to be satisfied on a motion for non-suit has been well articulated by John Sopinka, Sidney N. Lederman and Alan W. Bryant in The Law of Evidence in Canada (2nd ed. 1999) at p. 139:
The judge must conclude whether a reasonable trier of fact could find in the plaintiff’s favour if it believed the evidence given in the trial up to that point. The judge does not decide whether the trier of fact should accept the evidence, but whether the inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it.
[14] In determining a motion for non-suit, the trial judge must take into consideration the most favourable facts from the evidence led at trial, as well as all supporting inferences. In attempting to set aside the granting of the non-suit, a plaintiff simply has to show that there is evidence which, if believed, would form the basis for a prima facie case. A prima facie case is no more than a case for the defendant to answer (citations omitted).
[33] A similar formulation of the test for a non-suit was set out in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, (2007) 85 O.R. (3d) 561. In that decision, the Court stated that if a Plaintiff puts forward “some” evidence on all elements of its claim, then the non-suit motion will fail.
[34] The test for whether a question should be put to the jury was set out in M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, (2012) 109 O.R. (3d) 351. The Court stated (at para. 51);
[51] 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 Co. (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[.]
[35] The test for whether to leave a question to the jury was also set out in Walker v. Delic at para. 5 as follows:
A question need not be put to the jury unless there is some evidence on which a jury, acting judicially in accordance with the judge’s instructions on the law could reasonably make a choice in arriving at a finding.
[36] In considering both tests, it appears that the most significant difference between them is whether there is “any evidence” or “reasonable evidence”. However, a closer look at the cases (and particularly the Walker decision) reveals that, for a question to be left to the jury, there must be “some” evidence for the jury to act upon. Similarly, in Cobrand, supra, the Court of Appeal stated that, if there were “some” evidence on all the elements of the claim, the non-suit motion would fail.
[37] In short, there may be a difference between the two tests. However, I must step back and remember what each test does. Granting either type of motion removes an issue from the jury’s consideration and decides it in favour of one party, usually the Defendant. Given that the tests do the same things, they should be read and applied in a similar manner.
[38] To that end, in applying either test, I am of the view that I must assess the Plaintiff’s case on its most favourable basis and that I should not do much, if any, weighing of the evidence. Instead, I should be ascertaining whether there is evidence that would permit these matters to be left to the jury. Given my conclusions on the evidence that I am left with, I do not have to go further and fully resolve the differences between the two tests. With those principles in mind, I now turn to applying them to this case.
Application of the Principles
[39] Counsel for the Defendants pointed to the decision in Loye, supra as being a decision I should apply to this case. Specifically, counsel referenced paragraph 36, which states:
[36] Mr. Loye did not testify about the amount he was claiming for short term loss of income nor did he explain how that was calculated. The suggestion that his termination from Linemar was due to his physical limitations is not supported in the exhibits filed. 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.
[40] Counsel argued that, in this case, we were missing any evidence of how to calculate the LOCA claim. Counsel also pointed to the Court of Appeal’s decision in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1. In that decision, the Court stated (at para. 65):
[65] That said, in my opinion, 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. See for example, Stemeroff v. Swartz, [2005] O.J. No. 2073, 198 O.A.C. 141 (C.A.); and, in the context of liability, Rodaro v. Royal Bank of Canada, [2002] O.J. No. 1365, 59 O.R. (3d) 74 (C.A.). To hold otherwise would sanction trial unfairness
[41] The problem with the Defendant’s argument is that the claim in this case is for a loss of competitive advantage. Those claims are less amenable to expert evidence and to precise calculations. For example, in Earl v. Lang, [1997] O.J. No. 739 (Ont. Gen. Div.), aff’d , the Court was considering a serious motor vehicle accident. The Court rejected the expert testimony on the loss of competitive advantage claim, and stated:
27 While I am of the view that Gary is entitled to an award of damages for loss of competitive edge, there being a real and substantial risk that he may lose income in the future because of a competitive disadvantage sustained as a result of the accident, I find none of the analysis of Hollander, Rea and Townsend to be of significant assistance in determining what a fair and reasonable assessment on this head of damage might be. In my view, the assessment cannot be arrived at on the basis of statistics and actuarial calculations. What I must do is arrive at a lump sum figure, on the basis of all of the evidence, which is fair and reasonable to both Gary and Lang. The figure must have an air of reality about it having regard to all of the evidence.
[42] In other words, a trier of fact can consider an award for loss of competitive advantage that is more holistic and less precise than a loss of future income award would be. A similar approach was adopted in Seyom v. Toronto Transit Commission, 2018 ONSC 6848 at paras. 109 to 113.
[43] In this case, as I detailed at paragraph 19, there are a series of facts that could be used to support a loss of competitive advantage claim in the way that was done in the Earl decision. It is also worth returning to the passage that I reproduced from the Loye decision, above. In that decision, Turnbull J. prevented the loss of income claim from going to the jury for the reasons set out at paragraph 36 of his reasons. However, Turnbull J. permitted the loss of competitive advantage claim to go to the jury, even though there was not a significant factual basis to support the claim.
[44] In this case, the evidence to support the Plaintiff’s claim is admittedly very thin. However, it is not my role to weigh the evidence. Instead, I must consider whether there is enough evidence that the jury, acting judicially, could find that the Plaintiff had suffered a loss of competitive advantage.
[45] The Defendant also argues that there is no medical evidence to corroborate the Plaintiff’s claim that she has an ongoing condition that was caused or contributed to by her accident. The problem with the Defendants’ argument is that the Plaintiff testified that she did have an ongoing condition and that is reasonable evidence that could permit the jury, acting judicially, to find that she had ongoing problems that led to a loss of competitive advantage. Weighing the contradictory evidence that is before the Court is also not my role. It is the role of the trier of fact.
[46] I acknowledge that there was some limited medical evidence in the Loye decision that was not present in this case. However, the Plaintiff had her own testimony, corroborated by her father, that she had significant changes to her life and her capabilities to work as a result of her ongoing anxiety.
[47] In short, regardless of which test I apply to this case, there is enough evidence for the question of a loss of competitive advantage to go to the jury. I acknowledge it is a close call. However, the issues that exist in this case with the quality of the evidence that the Plaintiff has presented are questions of fact.
Conclusion
[48] For the foregoing reasons, the Defendants’ motions are dismissed.
[49] As I indicated to the parties, this motion was a sufficiently close call that I have determined that the costs of the motion will be determined as a larger part of the costs of the trial once the jury has made its decision.
LEMAY J
Released: May 30, 2023