DATE: 20010510
DOCKET: C31846

COURT OF APPEAL FOR ONTARIO

RE: MURAT KASAP and GOLDEN CHAMPAGNE ENTERPRISE LIMITED (Plaintiffs/Appellants) – and – PATRICK MacCALLUM (Defendants/Respondents)

BEFORE: FINLAYSON, CARTHY and WEILER JJ.A.

COUNSEL: Kenneth Arenson, for the appellant

Mark L. J. Edwards, for the respondent

HEARD: April 17 and 18, 2001

On appeal from the judgment of Justice James M. Farley dated February 25, 1999.

E N D O R S E M E N T

[1] On November 2, 1992, Murat Kasap (“Kasap”) was hit by a car while crossing the street in a pedestrian walkway. As a result, he sustained personal injuries. Liability for Kasap’s injuries was conceded and the only issue was damages.

[2] Section 266(3) of the Insurance Act, R.S.O. 1990, c. I.8, in force during the relevant time, provides:

(3) In an action for loss or damage from bodily injury arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before or at trial, determine if the injured person has, as a result of the accident, died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature. [Emphasis added.]

[3] The motion in s. 266(3), commonly referred to as the “threshold motion”, was raised at trial after all the evidence had been heard, the submissions of counsel made, and the charge to the jury given. The jury was out deliberating on the question of damages when the trial judge gave his ruling. The trial judge found as a fact that Kasap was not a credible witness and that the threshold had not been met. He dismissed Kasap’s action. The jury then returned its verdict awarding fairly substantial damages thereby suggesting that Kasap was a credible witness.

[4] On appeal, Kasap submits that the trial judge was obliged to await the verdict of the jury before ruling on the threshold motion and that the trial judge was obliged to rule in conformity with the finding implicit in the jury’s verdict.

[5] Kasap’s credibility was central to both the determinations of the threshold issue and the jury’s verdict as to the award of damages. It is conceded that if Kasap was believed when he testified that the accident caused him to suffer from fibromyalgia, then the threshold for bringing an action was met. The diagnosis of fibromyalgia is based in large measure on the subjective complaints of the individual afflicted. Kasap submits that it is the exclusive province of the jury to determine the facts. As a result, he submits that the trial judge was obliged to accept that Kasap was a credible witness and to rule that the threshold had been met.

[6] The question of whether a trial judge should rule on a threshold motion made at trial has been the subject of some considerable judicial comment and divergent views by trial judges. (For decisions that favour a ruling on the motion after a jury has made its determination see: Kostiuk v. McIntyre (1997), 1997 26886 (ON CJ), 1 C.C.L.I. (3d) 73; Duguay v. O’Neill (1996), 1996 8227 (ON SC), 31 O.R. (3d) 22; and for decisions that favour a ruling before a jury has made its determination see: Andre v. Roque (2000), 2000 22358 (ON SC), 48 O.R. (3d) 131 (Sup. Ct.); Chrappa v. Ohm (1996), 1 O.T.C. 248 (Gen. Div.); Greer v. Horton (1996), 18 O.T.C. 332 (Gen. Div.); McMurray v. Davies, [1996] O.J. No. 4834 (Gen. Div.)). None of the decisions at the trial level has, however, suggested that a trial judge is bound to follow the implicit finding of the jury. At its highest, the verdict of the jury is a factor for the trial judge to consider. See Duguay v. O’Neill, supra, at p. 23.

[7] The Legislature has left it to judges to determine whether the threshold has been met. This will often overlap a jury’s considerations; and particularly where the symptoms are subjective.

[8] Nowhere does the legislature say that the judge is bound to consider the jury verdict much less that the judge is bound by any implied finding of credibility of the jury. By the same token the legislation does not suggest that a trial judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge. Accordingly the appeal fails and is dismissed with costs.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“Karen M. Weiler J.A.”