Court of Appeal for Ontario

CITATION: Pool v. State Farm Insurance Companies, 2007 ONCA 630

DATE: 20070917

DOCKET: C45696

MACPHERSON, SHARPE and JURIANSZ JJ.A.

BETWEEN:

DAVID POOL

Plaintiff/Respondent

and

ANDRE EDGAR LEHOUX and STATE FARM INSURANCE COMPANIES

Defendants/Appellant

Counsel:

Paul J. Pape for the appellant

Scott Hutchison and Owen Rees for the respondent

Heard: September 11, 2007

On appeal from the judgment of Justice John A. Desotti of the Superior Court of Justice sitting with a jury dated July 24, 2006.

BY THE COURT:

[1] The respondent, David Pool, was involved in a motor vehicle accident. The other driver, Andre Lehoux, was completely at fault. The appellant, State Farm Insurance Companies, was Mr. Lehoux’s “underinsurance” carrier for damages over $200,000.

[2] At the conclusion of a jury trial presided over by Desotti J., the jury awarded damages totalling $1,679,319.17. This award encompassed general damages (including pre-judgment interest), future income loss and loss of housekeeping capacity.

[3] The appellant appeals on a number of grounds.

[4] First, the appellant contends that the trial judge improperly interfered with its counsel’s cross-examination of the respondent on the issue of causation, in particular whether a recent back injury suffered by the respondent in a hockey game was the result of a cross-check or a spearing incident.

[5] We disagree. In the single passage relied on as unwarranted interference by the trial judge in a hotly contested two-week trial, the trial judge merely summarized, briefly, the respondent’s clear testimony about the hockey injury and suggested to counsel that he move on. Counsel did not object and did move on. The trial judge’s intervention was not close to the type of interventions (lengthy, repeated, even harassing) that have been subject to critical comment in such cases as Brouillard v. The Queen, [1985] 1 S.C.R. 39, Baker v. Hutchinson et al. (1977), 13 O.R. (2d) 591 (C.A.) and R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.).

[6] Second, the appellant submits that the trial judge erred by admitting Dr. Lloyd’s medical report as an exhibit during the testimony of the respondent’s witness Marla Tennen, an expert in life-care planning and the assessment of the costs associated with such case.

[7] We disagree. There is no hard-and-fast rule about the admission of medical reports as exhibits: see Ferraro v. Lee (1974), 2 O.R. (2d) 417 at 420 (C.A.). The judge retains an overriding discretion to permit the admission of the report after the doctor has testified: see Reimer v. Thivierge (1999), 46 O.R. (3d) 309 at paras. 15-16 (C.A.).

[8] The starting point for a proper analysis is recognition that in Ms. Tennen’s report she did not factor in the possibility (mentioned in Dr. Lloyd’s report) that the respondent might develop arthritis at some point in the future. Nor did Dr. Lloyd testify about this in his evidence at the trial. In spite of these points, after Ms. Tennen mentioned arthritis in her examination-in-chief, defendant’s counsel cross-examined her at some length about Dr. Lloyd’s report, including the arthritis reference in it, with a view to challenging her understanding of the report. In this context, the trial judge decided to admit Dr. Lloyd’s report as an exhibit so that the jury would be in a better position to assess Ms. Tennen’s testimony, including her credibility. In our view, this was a proper exercise of the trial judge’s discretion. The appellant made no objection to the way the trial judge left this evidence with the jury. Moreover, importantly, the arthritis possibility was never mentioned again by anyone – in the pre-charge submissions, the closing addresses of counsel to the jury or the judge’s jury charge.

[9] Third, the appellant challenges a number of aspects of the jury’s damages award.

[10] The appellant contends that the award of $250,000 for general damages, which was 80 per cent of the cap for such damages, was inordinately high in light of the injuries suffered by the respondent.

[11] In Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299 at 305 (C.A.), Doherty J.A. said:

Where, as here, the assessment was made by a jury, and there is no suggestion that the instructions to the jury were erroneous or deficient, the appellant must establish that the amount awarded is “so inordinately high that it must be a wholly erroneous estimate of the damages”. [Citations omitted.]

The award for general damages in this case was made by the jury and the appellant does not challenge the jury charge in any respect, including damages. Although the jury’s award was high, we cannot say that it constituted “a wholly erroneous estimate of the damages”.

[12] The appellant contends that the jury’s acceptance of an assessment based on the respondent continuing in his employment as a house-framer until age 65 was unrealistic and ignored the evidence relating to negative contingencies. Again, in the absence of a challenge to the jury charge on these issues, we cannot see any basis for overturning or reducing the jury’s award.

[13] The appellant submits that the jury award for future income loss with respect to the respondent’s part-time employment in the military reserve should be reduced because it was based on his continuing participation until age 65, whereas the respondent would have been compelled to retire at age 40. The respondent agrees with this submission and quantifies this error as $140,000. The appellant accepts this calculation.

[14] The appellant submits that the jury award for past and future housekeeping costs of $250,000 was, at a minimum, $100,000 too high. Again, in the absence of a challenge to the jury charge on this issue, and bearing in mind that the jury award represented only one-half of the amount sought, we would not interfere with this component of the award.

[15] For these reasons, the appeal is allowed, but only to the extent of reducing the jury award by $140,000.

[16] The parties are agreed that a proper costs award in this appeal would be $54,000 to the successful party. Success is divided, but the balance tips in the respondent’s favour. We award the respondent costs fixed at $25,000 inclusive of disbursements and GST.

RELEASED: September 17, 2007 (‘JCM”)

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”