DATE: 20050603
DOCKET: C38549 and C40588
COURT OF APPEAL FOR ONTARIO
LASKIN, CRONK and GILLESE JJ.A.
B E T W E E N :
WILLIAM GORMAN
C. Kirk Boggs and
Christine Snow
for William Gorman
Plaintiff (Respondent/
Appellant by way of cross‑appeal)
- and -
MICHAEL FALARDEAU, TANA CANADA INC. and SARA LEE CORPORATION
James M. Flaherty and
Todd J. McCarthy
for Michael Falardeau,
Tana Canada Inc.
Defendants (Appellants/
and Sara Lee Corporation
Respondents by way of cross‑appeal)
R. W. Howard Lightle
A N D B E T W E E N :
for Robert J. Chayer and
North Bay Chrysler Ltd.
WILLIAM GORMAN
Plaintiff (Respondent/
Appellant by way of cross‑appeal)
John M. Burnes
for Ronald and Paul Ayotte
- and -
ROBERT JAMES CHAYER, NORTH BAY CHRYSLER LTD and ZURICH INSURANCE COMPANY
Defendants (Appellants/
Respondents by way of cross‑appeal)
Heard: March 30 and 31, 2005
On appeal from the judgment of Justice Michael G. Bolan of the Superior Court of Justice dated June 11, 2002.
GILLESE J.A.:
[1] William Gorman was injured in a car accident in 1989 (“the 1989 accident”). After the 1989 accident, he was involved in five other motor vehicle accidents. He commenced separate actions in respect of three of the accidents: the 1989 accident and the accidents that took place in 1995 and 1997. The three actions were tried together.
[2] The defendants in all three actions admitted liability before trial.
[3] By judgment dated June 11, 2002, Bolan J. awarded Mr. Gorman damages for non-pecuniary loss, past and future income loss, and future care costs. General damages were apportioned among the defendants but the defendants in the 1989 accident were held solely liable for damages for loss of past and future income and future care costs.
[4] Michael Falardeau, Tana Canada Inc., and Sara Lee Corporation, the defendants in the action based on the 1989 accident (“the appellants”), appeal. They ask that the judgment be set aside and a new trial, by jury, be ordered. If a new trial is not ordered, the appellants ask that the damages be re-apportioned among the defendants and that damages for past income loss be reassessed.
[5] By way of cross-appeal, Mr. Gorman asks that, in the event that a new trial is ordered, the defendants in the other two actions be included as parties.
[6] For the reasons that follow, I would dismiss the appeal and cross-appeal.
BACKGROUND
[7] On March 16, 1989, Mr. Gorman was driving his pickup truck. Mr. Falardeau was making a left turn out of a parking lot when his vehicle struck Mr. Gorman’s truck.
[8] Mr. Gorman was 40 years old at the time of the 1989 accident. Before the 1989 accident, he was at the peak of his physical prowess. He had spent the previous summer working long, hard hours with a fire crew for the Ministry of Natural Resources. He was a very active person and excelled in various sports at a high level of activity. In the five years leading up to the 1989 accident, he was continuously involved in physical activities such as running, skiing, water-skiing and weight lifting. He dreamt of a future in teaching and had just secured full-time employment as a teacher at Canadore College in North Bay, Ontario.
[9] After the 1989 accident, Mr. Gorman suffered from back problems that impaired his ability to work. In the fall of 1993, as a result of those injuries, he could no longer teach. He took a position as a law clerk at his brother’s law firm. However, by October 30, 1995, his health was such that he could no longer work as a law clerk. He was let go from that position and has not returned to the workforce.
[10] On November 9, 1995, Mr. Gorman was involved in a second motor vehicle accident in which he sustained a soft tissue injury to his neck (“the 1995 accident”). The 1995 accident aggravated the injuries that he had suffered in the 1989 accident. After the 1995 accident, Mr. Gorman was in constant pain and, consequently, he developed emotional problems.
[11] On February 20, 1997, Mr. Gorman was involved in yet another motor vehicle accident (“the 1997 accident”). After the 1997 accident, his lower back pain, including pain in his left hip, worsened.
[12] Mr. Gorman was involved in three other motor vehicle accidents between 1989 and 1997. However, he brought actions only in respect of the accidents, described above, that occurred in 1989, 1995 and 1997. The actions were ordered tried together. They were heard over three weeks in January 2002. The defendants in each action admitted liability. The only issues at trial were the quantum of damages and assignment of liability.
[13] Jury notices were filed in each of the three actions and a jury was selected for the combined trial. On January 9, 2002, after hearing a number of pre-trial motions, the trial judge told counsel that he was concerned about a jury deciding the case, given its complexity. He said that he was inclined to dismiss the jury. He asked counsel to return the following day with submissions on the matter.
[14] On January 10, 2002, the trial judge acknowledged that he did not have the discretion to dismiss the jury of his own accord. Shortly thereafter, counsel for Mr. Gorman moved to have the jury discharged. Over the objection of the appellants, the trial judge granted the motion.
THE TRIAL DECISION
[15] The trial judge found that, as a result of the 1989 accident, Mr. Gorman suffered a soft tissue injury. He further found that prior to the 1995 accident, Mr. Gorman’s injuries from the 1989 accident had given rise to a chronic pain disorder. The 1995 and 1997 accidents were found to have slightly aggravated his injuries from the 1989 accident.
[16] The trial judge followed the approach taken in Baillargeon v. Murray (2001), 2001 28251 (ON SC), 52 O.R. (3d) 278 (S.C.J.). He held that because Mr. Gorman suffered from the combined effects of several motor vehicle accidents and the injuries or effects thereof were overlapping, the separate effect of each accident could not be determined. He concluded that damages were to be assessed on a global basis. Thus, the trial judge considered Mr. Gorman’s condition globally, as a result of all three motor vehicle accidents.
[17] The trial judge undertook a three-step process in assessing Mr. Gorman’s injuries for the purpose of apportioning damages. First, he determined the state of Mr. Gorman’s health as it existed after the 1989 accident and immediately before the 1995 accident. Second, he considered Mr. Gorman’s condition after the 1995 accident and immediately before the 1997 accident, to determine whether Mr. Gorman’s condition exceeded the threshold established by the governing legislation. Third, the trial judge considered Mr. Gorman’s condition after the 1997 accident to determine whether his condition exceeded the legislated threshold in place at that time.
[18] The trial judge assessed Mr. Gorman’s general damages at $120,000. Based on his three-step approach, the trial judge apportioned $70,000 of that amount to the appellants, $20,000 to the defendants in the 1995 accident action, and $30,000 to the defendants in the 1997 accident action.
[19] Damages were assessed at $180,000 for past loss of income; at $299,940 for future loss of income; and, at $35,000, for future care costs. He ordered the appellants to pay all damages for past and future loss of income and for future care costs.
ISSUES
[20] The issues, as framed by the appellants, are three-fold. Did the trial judge err in:
(a) discharging the jury;
(b) the apportionment of damages; or,
(c) the quantum of damages awarded for past loss of income?
DISCHARGING THE JURY
[21] The appellants submit that the trial judge made two errors in discharging the jury. First, they argue that the trial judge pre-determined the issue. Second, they say that the trial judge erred in principle when he discharged the jury because the jury would be called upon to decide complex legal issues.
The Question of Pre-determination
[22] On January 7, 2002, the jury was selected. On January 9, 2002, the trial judge heard various pre-trial motions. During the course of hearing the motions, the trial judge learned about the number of accidents in which Mr. Gorman had been involved and his resulting injuries and disabilities. He learned that different statutory regimes applied to the various accidents and that competing expert medical, actuarial and other evidence would be called. The trial judge concluded the day with these words to counsel:
THE COURT: Well, have a look at it. I’m shutting this down for the day and I want you to give consideration to me exercising my discretion tomorrow morning to discharge the jury. I want you to give consideration to that and I’ll hear what you have to say about that tomorrow morning. And we’ll start tomorrow morning at 9:30. We’ll have the jury come in and, depending on my decision, we’ll see where we go from there. I’m sorry, I’m having a lot of problems with that. A jury can only take so much. So, we’ll see you tomorrow morning then, at 9:30. Thank you. [emphasis added]
[23] On January 10, 2002, the trial judge began by acknowledging that he did not have the discretion to discharge the jury on his own motion. He then heard from counsel with respect to a motion relating to Mr. Gorman’s Canada Pension Plan file (“the CPP motion”). During the course of submissions on the CPP motion, the trial judge remarked, “Okay. I think I know how to address that with the jury …”.
[24] After the CPP motion was withdrawn, counsel for Mr. Gorman indicated that he intended to bring a motion to strike the jury. The trial judge determined that counsel were ready to argue the motion to strike and said:
I’ll hear the motion and then, I may or may not reserve on it to be decided upon some other time in the process. I’m not sure, but I’ll hear your motion now.
[25] The trial judge heard submissions on the motion to strike and adjourned for approximately half an hour. Upon returning, he granted the motion on the basis that, in light of the complexity of the matters for determination, justice to the litigants would be better served by granting the motion. He then discharged the jury.
[26] It is clear from the record that, before the motion to strike was brought, the trial judge had some concern about the jury’s ability to deal with the complexities of the case. However, I see nothing in the record to indicate that the trial judge failed to keep an open mind when deciding the motion. When he initially raised the matter of discharging the jury, he said, “depending on my decision, we’ll see where we go from there”. Those words suggest that he had yet to determine whether discharge was appropriate. The remark that he made during the course of submissions on the CPP motion, set out above, indicates that he was considering the motion on the basis that the case was to be put before a jury. And, before hearing submissions on the motion to strike, the trial judge stated that he might decide the motion to strike at “some other time in the process”.
[27] The fact that the trial judge decided the motion on the basis of concerns that he had expressed earlier does not mean that he was not open to persuasion. Trial judges have a duty to ensure that trials are conducted fairly. I see nothing improper in a trial judge expressing a concern about the proposed course a trial is taking so long as the trial judge remains open to persuasion on the matter.
[28] The appellants rely on Osterbauer v. Ash Temple Ltd. (2003), 2003 6614 (ON CA), 63 O.R. (3d) 697 (C.A.) in support of their contention that the matter was prejudged. This case differs significantly from Osterbauer. In Osterbauer, the trial judge intervened a number of times during the course of the trial, including during counsel’s examination of witnesses. This court concluded that the trial judge’s expressed views on the relevancy of issues and repeated interventions prevented the losing party from fully advancing its position. In the case at bar, the trial judge made only one comment and that was early on in the proceedings. The trial judge did nothing to prevent the defendants from fully arguing their positions in respect of the motion to strike the jury.
[29] Accordingly, I am satisfied that an informed observer, viewing the matter realistically and practically, would not conclude that the trial judge had pre-determined the matter.
The Basis for Discharging the Jury
[30] The appellants contend that the trial judge discharged the jury because it would have had to decide complicated legal matters when, in fact, matters of law are to be decided by the trial judge and not the jury.
[31] I do not accept this characterization of the trial judge’s reasons.
[32] The trial judge said this, in part, in his ruling:
I consider the following to be issues of complexity with which a jury would have to contend. An appreciation of the legislative schemes and how each change affects the plaintiff. The nature of the injuries which is basically a chronic pain disorder and the plaintiff’s condition before each accident as well as psycho-emotional impairment. The facts of the extensive treatment over the past thirteen years match the various expert medical evidence, including that of physiatrists, orthopaedic surgeons, psychiatrists, actuaries, and vocational/rehab people.
Another factor is the apportionment of the injuries as between these three accidents and possibly the other three accidents. The legal issues include the following and are not necessarily limited to these, but including the following, causation, apportionment to which I’ve already referred, collateral benefits, the thin skull theory. These are just some of the legal issues which would have to be dealt with.
Now, I am mindful that a trial by jury is a substantive right and should not be interfered with lightly. I am also mindful that just because you have complex issues, it does not mean that a jury cannot try them. Over the past twenty years as a judge, I’ve dealt with several jury trials, both civil and criminal. Many of which had some of the complexities which are in this case. However, I’ve never seen a case with so many.
In my view, to allow this to proceed to be tried by a jury is fraught with the danger that justice will not properly be meted out. In my view there are so many complex issues in law, and evidentiary ones as well, that it is too difficult to be dealt with by a jury.
[33] The trial judge applied the correct legal principles in deciding whether to discharge the jury. He noted that although a litigant has a substantive right to have his or her case heard by a jury, that right is not absolute. He acknowledged that just because a case presents complex issues, it does not mean that a jury cannot try the matter. He followed the test enunciated in Rahmaty v. Kentner (1982), 31 C.P.C. 300 (H.C.), that requires the trial judge to weigh “the prima facie right of a litigant to a jury trial against the risk that the nature of the particular case makes it inappropriate to be dealt with by a jury”. (See also Majcenic v. Natale, 1967 267 (ON CA), [1968] 1 O.R. 189 (C.A.)). The trial judge then concluded that there were so many complex issues that the case could not be appropriately dealt with by a jury.
[34] The trial judge’s exercise of discretion in striking the jury is to be accorded deference; appellate intervention is warranted only where the discretion is exercised arbitrarily, capriciously or on wrong legal principles. See Aitken v. Forsell (1997), 1991 8356 (ON CA), 50 C.P.C. (2d) 176 (Ont. C.A.).
[35] The trial judge considered the nature and circumstances of the case and the complexity of the evidence to be given. He was in the best position to determine whether a jury could appropriately deal with the case at hand. The matters in issue were complex, spanning more than a decade and involving three litigated motor vehicle accidents and multiple tortfeasors. Three other accidents that were not litigated were relevant in that the defendants sought to attribute some of Mr. Gorman’s injuries and disabilities to those accidents. Different statutory thresholds were involved under different insurance regimes. Complicated evidence was to be led on the nature of Mr. Gorman’s injuries, the overlapping of those injuries and Mr. Gorman’s extensive medical treatment. In cases involving multi-accident scenarios, overlapping injuries and complicated medical evidence – as, for example, in Rahmaty - it has been held that trial by judge alone would best serve the interests of justice.
[36] In the circumstances, I see no basis upon which to interfere with the trial judge’s decision to discharge the jury.
APPORTIONMENT OF DAMAGES
[37] The appellants argue that the trial judge erred in globally assessing damages and concluding that they were responsible for only 58.33% of the general damages but then holding them solely responsible for all past and future income losses and all future care costs.
[38] A trial judge’s findings of fact are entitled to deference. Appellate interference is warranted only if the trial judge disregarded relevant evidence or made a palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[39] The trial judge found, on the basis of the medical evidence, that Mr. Gorman was totally disabled by the chronic pain disorder that he developed following the 1989 accident and prior to the 1995 accident, that the disability was permanent, and that Mr. Gorman would never return to the workforce. Those findings are solidly grounded in the evidence. While the appellants suggest that the trial judge ignored evidence on whether Mr. Gorman would return to the workforce – including the 1996 application for accident benefits that states that Mr. Gorman was “on leave with pay” – the trial judge found that Mr. Gorman’s evidence on this point was an error and that the form had been filled out by his counsel, rather than by him.
[40] On the record, the trial judge was amply justified in finding that by the time of the 1995 accident, Mr. Gorman had left the workforce and would never again be gainfully employed. There is no basis upon which to interfere with the trial judge’s conclusion that, accordingly, the appellants bore responsibility for a majority of Mr. Gorman’s general damages and sole responsibility for loss of past and future income and future care costs.
QUANTUM OF DAMAGES
[41] The appellants submit that the trial judge erred in awarding damages for past income loss in an amount not supported by the evidence. They contend that it was unreasonable for the trial judge to have included in his calculation of income, the amounts that Mr. Gorman earned while employed as a law clerk. In making this submission, the appellants rely on the fact that Mr. Gorman’s employment as a law clerk was more remunerative than any of his previous jobs, as it was his first full-time job and, on the trial judge’s finding that, had the 1989 accident not occurred, Mr. Gorman would have continued to move from job to job.
[42] The trial judge’s assessment of income is supported by the evidence. At the time of the 1989 accident, Mr. Gorman held a Bachelor of Arts degree and an honours degree. He had been admitted to law school and had become a qualified teacher. Although he changed jobs frequently and often took seasonal employment, he was more or less continuously employed before the 1989 accident. It was open to the trial judge to calculate past income based on an average of the income that Mr. Gorman earned in the four years prior to his leaving the workforce, a period which includes the time in which Mr. Gorman worked as a law clerk.
[43] I see no basis upon which to interfere with the trial judge’s determination in this regard.
DISPOSITION
[44] Accordingly, I would dismiss the appeal and cross-appeal with costs to the respondent, on a partial indemnity basis, fixed at $25,000, inclusive of GST and disbursements. I make no order as to costs of the defendants in the second action (the 1995 accident), as they sought none. I would award costs of the appeal and cross-appeal to the defendants in the third action (the 1997 accident), on a partial indemnity basis, fixed at $4,000, inclusive of GST and disbursements.
[45] The defendants in the action based on the 1995 accident sought leave to appeal from the order as to costs. However, the court was advised at the outset of the oral hearing of the appeal, that the matter had been settled. Consequently, I would grant leave to appeal on the matter of costs and dismiss that appeal without costs.
RELEASED: June 3, 2005 (“JL”)
“E. E. Gillese J.A.”
“I agree John Laskin J.A.”
“I agree E. A. Cronk J.A.”