CITATION: Jones v. Niklaus, 2008 ONCA 504
DATE: 20080624
DOCKET: C45040
COURT OF APPEAL FOR ONTARIO
WEILER, BORINS and ARMSTRONG JJ.A.
BETWEEN:
CAROL JONES, JENNIFER JONES, CHARLES JONES, by his litigation guardian CAROL JONES, WALTER BEETON and KATHLEEN ARCHER
Plaintiffs (Appellants)
and
WALTER NIKLAUS
Defendant (Respondent)
Paul J. Pape and John J. Adair for the appellants
Patrick J. Monaghan for the respondent
Heard: December 11, 2007
On appeal from the judgment of Justice Douglas M. Belch of the Superior Court of Justice, sitting with a jury, dated February 20, 2006.
ARMSTRONG J.A.:
INTRODUCTION
[1] On a clear sunny day on July 26, 1998, shortly before 11:00 a.m., Carol Jones, the appellant, was driving her 16-year-old son, Charles, to work. As they travelled down a paved country road, the car collided with a dog. Ms. Jones lost control of the car. The car hit a tree and Ms. Jones was severely injured.
[2] Nearly eight years later, at a trial presided over by Justice Belch of the Superior Court, a jury found Walter Niklaus, the respondent and the owner of the dog, 35 per cent responsible for Ms. Jones’s damages and Ms. Jones 65 per cent responsible for her loss. Ms. Jones’s damages were assessed at $664,745. In the result, Ms. Jones received judgment in her favour of $232,660.75 for damages and $32,352.51 for prejudgment interest.
[3] The trial judge ordered Ms. Jones to pay Mr. Niklaus costs in the amount of $65,000 inclusive of disbursements and GST.
[4] Ms. Jones appeals to this court in respect of the jury’s findings of contributory negligence and damages.
FACTS
Evidence Relating to the Collision
[5] There were four witnesses to the accident: Ms. Jones and her son, Charles, and two children, Cassandra and Johnny Niles, who were playing in the front yard of their father’s house which was adjacent to the roadway where the accident happened. The Niles children’s version of how the accident happened was diametrically opposed to that of Mrs. Jones and her son.
[6] The road on which the accident occurred is a two-lane country road in the town of Newcastle. The speed limit is 80 kilometres per hour. As one travels eastbound toward the location of the accident, the road is straight with a slight decline. A person driving on that section of the road would have a completely unobstructed view of the road in front of him or her.
[7] Ms. Jones testified that she was driving eastbound on the country road when a dog suddenly came out of nowhere to her left and was charging her vehicle. Ms. Jones said that she made a small corrective manoeuvre to the right to avoid the dog. She was unable to avoid hitting the dog. Her car hit the shoulder of the road, she lost control of it and eventually hit a tree.
[8] She also testified that at the time of the accident, she was travelling within the speed limit. She estimated that the time between when she first saw the dog on the road and when it came into contact with her car was “split seconds”.
[9] Charles Jones confirmed his mother’s evidence. He testified that as they drove down the road, the dog came out of nowhere. The dog came into contact with the side of the car and then the car went into the ditch and struck a tree. The elapsed time between seeing the dog and impact with the dog was a “split second”.
[10] Charles Jones did not know at what speed the car was travelling. However, he testified that his mother did not go over the speed limit.
[11] Cassandra Niles was 17 years old at the time of trial. At the time of the accident, she was 9 years old and she and her brother, Johnny, were visiting their father’s house. Cassandra Niles went outside to play and was told by her stepmother to shut the gate to the driveway. When she went outside, Mr. Niklaus’s dog was in her father’s front yard. While she was closing the gate, the dog ran to the other side of the gate. The dog then went onto the road and she observed a car crest the hill while the dog stood stationary and directed his head towards the car.
[12] According to Ms. Niles, the car was travelling fast. She tried to call the dog off the road but he paid no attention to her. The car struck the dog, swerved and went into the ditch.
[13] In February 2002, approximately three and one-half years after the accident, Cassandra Niles gave a statement concerning her recollection of the events. Counsel for the appellant cross-examined her on this statement and in particular on an opinion she had advanced in the concluding paragraph of the statement:
Q. And at the end of the statement, the very last paragraph, and I’ll read it out to you, Miss Niles. “If the lady was going slower, driving in her own lane and paying better attention, she would have noticed the dog sooner and would have been able to react more calmly to avoid hitting the dog and also going into the ditch. She seemed to just suddenly notice [the dog] Buddy at the last second and then to react very quickly and in a panic just before she hit him.” Are those your words?
A. Those are my words.
Q. So you decided when you finished this statement to sum it up in that way? Is that true?
A. I would say so.
Q. And…
A. I guess that would be my opinion.
[14] Cassandra Niles and her stepmother, Diane Smith, testified that Johnny Niles was inside the house at the time of the accident. However, Johnny Niles, who was 11 years old at the time of the accident and 18 years old at the time of trial, testified that he was in the driveway walking back towards the house. When he was about 20 metres from the road, he heard the brakes squealing on a car. He turned back and saw a car hit the dog and swerve into the ditch and hit a tree. There was an interval of three or four seconds between the time he heard the brakes and saw the car hit the dog.
[15] Johnny Niles also gave a statement in February 2002 concerning his recollection of the accident. Counsel for the appellant put the following excerpts of the statement to Johnny Niles in cross-examination:
Even having hit the dog, if she [the driver] had accepted the impact, and not panicked and turned so suddenly, she still would not have lost control of her car.
She was driving too fast, she was not paying attention and she was in the wrong lane when the accident happened.
[16] The jury heard evidence from a number of people who were familiar with the habits of Mr. Niklaus’s dog and his propensity or otherwise to chase cars. The appellant led evidence that the dog had a wheel fetish and chased cars. Witnesses called on behalf of the respondent testified to the contrary. One witness said the dog was well behaved and when he crossed the road, he looked both ways. Another witness who visited Mr. Niklaus’s property two or three times a week testified that he never saw the dog interact with cars in any way.
Evidence Relating to Damages
[17] Ms. Jones was badly injured in the accident. The most severe of her injuries was a shattered right leg. She underwent surgery on her leg and was hospitalized for two and one-half months – returning home in October 1998. She received intensive physiotherapy and other medical care for more than three years and underwent numerous surgeries. Although she was enrolled part-time in an at-home program at Laurentian University, the evidence suggested that Ms. Jones was not fit to return to work or continue her academic studies full-time until the end of 2001 or the beginning of 2002.
[18] After graduating from high school in 1969, Ms. Jones worked in an administrative position at Simpson’s department store for ten years. She then worked at home until 1986. From 1986 to 1994, she returned to a series of administrative jobs. Over the years, she acquired a number of employable skills including book-keeping and a proficiency with computers. In 1994, having found that administrative work had become unfulfilling and unbearable, she enrolled as an at-home student at Laurentian University (referred to above) and received a B.A. in sociology. Ms. Jones also had a very positive experience working with and teaching children on a volunteer basis at her local Anglican Church and at her children’s school. At the time of the accident, she had been accepted at teacher’s college at York University and was scheduled to begin classes in August 1998.
[19] After two one-year deferments of her enrolment in teacher’s college, Ms. Jones was denied a third deferment. In or around the summer of 2000, she realized that her lack of mobility would not permit her to pursue a career as a teacher.
[20] Ms. Jones decided to explore a career as a counsellor. She obtained a second B.A. degree in religious studies at Laurentian University and in September 2003 enrolled in a Master of Divinity / Counselling degree program at Tyndale College in Toronto at a reduced course load. It was anticipated that she would complete the Master of Divinity program in 2008 and then begin working as a counsellor.
The Jury Verdict
[21] In respect of Walter Niklaus, the jury concluded that his dog did not attack the car of Carol Jones. However, the jury found that Mr. Niklaus was negligent and provided the following particulars of negligence:
Failed to comply with by-law having been advised by Animal Control officer dog could cause harm to the public.
Failed to keep dog on his property.
Failed to take reasonable steps to secure dog knowing it would leave his property.
[22] In respect of Carol Jones, the jury concluded that she was contributorily negligent and provided the following particulars of negligence:
Failed to keep a proper lookout.
Failed to apply brakes in time or at all.
Failed to keep proper control of vehicle by over- reacting to the situation.
[23] The jury assessed the damages of Carol Jones as follows:
a) General damages $150,000
b) Financial loss:
(i) Past loss of income from
July 26, 1998 to November
15, 2005 $156,311
(ii) Future loss of income from
November 15, 2005 $289,361
(iii) Cost of future housekeeping $ 69,073
ISSUES
[24] The appellant raises two issues on appeal:
(1) Is the jury’s finding that the appellant was contributorily negligent unreasonable?
(2) Is the jury’s assessment of damages unreasonable?
[25] After the oral argument was completed, the court requested counsel to address in writing an additional issue concerning the apportionment of responsibility made by the jury. The precise question put to counsel was: “[A]ccepting the jury’s findings of fact, was the 35/65 [percent] division of responsibility appropriate?”
STANDARD OF REVIEW
[26] Before addressing the above issues, it is necessary to consider the standard of review of findings of fact made by a jury. In Deshane v. Deere & Co. (1993), 1993 8678 (ON CA), 15 O.R. (3d) 225 at 231 (C.A.), Lacourcière J.A. (dissenting on other grounds) said:
The principles governing appellate review of the verdict of a jury have been laid down by the Supreme Court of Canada in McLean v. McCannell, 1937 1 (SCC), [1937] S.C.R. 341 at p. 343, [1937] 2 D.L.R. 639, so that ‘the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it’. The principle has been re-affirmed in Vancouver-Fraser Park District v. Olmstead, 1974 196 (SCC), [1975] 2 S.C.R. 831 at p. 839, 51 D.L.R. (3d) 416, where de Grandpré J., delivering the judgment of the court, stated:
All of the relevant cases make it abundantly clear that jury verdicts must be treated with considerable respect and must be accorded great weight. This does not mean however that they should be regarded with awe.
It was in that case also that the court, at p. 836, rejected the suggestion that a verdict should be ‘perverse’, implying moral turpitude, before it could be set aside. Instead, the court adopted a test that examines whether the evidence so preponderates against the verdict as to show that it was unreasonable and unjust. There is a further principle enunciated by Laskin C.J.C. delivering the majority judgment in Cameron v. Excelsior Life Insurance Co., 1981 168 (SCC), [1981] 1 S.C.R. 138 at p. 142, 119 D.L.R. (3d) 257, and it is that jury’s findings are ‘entitled to rational appreciation and to be regarded in as favourable a light as the evidence supporting it’.
See also Barker (c.o.b. Mike Barber Auto Sales) v. Zurich Insurance Co. (2001), 2001 24144 (ON CA), 140 O.A.C. 358 (C.A.) at para. 26; and Plester v. Wawanesa Mutual Insurance Co. (2006), 2006 17918 (ON CA), 269 D.L.R. (4th) 624 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 315.
ANALYSIS
(1) Is the Jury’s Finding of Contributory Negligence Unreasonable?
Introduction
[27] Counsel for the appellant raises three arguments in support of his submission that the jury’s finding of contributory negligence is unreasonable. First, he argues that the jury’s conclusion on this issue cannot stand because the trial judge failed, in his charge, to caution the jury regarding the relative reliability of children’s evidence. According to the appellant, since the jury’s finding of contributory negligence was based solely on the evidence of the Niles children, that finding was unreasonable given this omission in the jury charge. Second, the appellant argues that the jury’s findings that Ms. Jones failed to keep a proper lookout and failed to keep proper control of her car are also unreasonable because they are based upon lay opinion evidence from the Niles children, taken primarily from their February 2002 statements, referred to above. According to the appellant, since the Niles children were not qualified to offer these opinions, they were “not entitled” to give such evidence in the first place or, if they were entitled to give the evidence, such evidence should receive no weight. Third, the appellant also attacks the jury’s finding that Ms. Jones failed to apply her brakes on the basis that it finds no support in the evidentiary record. For the following reasons, I disagree with these submissions and would decline to interfere with the jury’s finding of contributory negligence.
(a) Reliability of the Children’s Evidence
[28] Counsel for the appellant submits that prior to the jury charge, trial counsel for the appellant requested the trial judge to caution the jury about the reliability of children’s evidence and he declined to do so. Counsel for the appellant submitted that the trial judge was obliged to accede to this request at trial.
[29] In my view, the appellant has fallen short of establishing that the trial judge’s failure to charge the jury concerning the reliability of the children’s evidence occasioned a “substantial wrong or miscarriage of justice” justifying a new trial under the Courts of Justice Act, R.S.O. 1990, c. C.43.
[30] I have great difficulty finding substantial prejudice or a miscarriage of justice in this case in the face of the Supreme Court of Canada’s comments in R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, to the effect that children’s evidence is not per se less reliable than the evidence of adults. As McLachlin J. stated in W.(R.):
The law affecting the evidence of children has undergone … major changes in recent years. The first is the removal of the notion … that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child’s evidence be corroborated has been removed [see, in the civil context in Ontario, s. 18.2(1), Evidence Act, R.S.O. 1990, c. E.23] … The repeal of provisions creating a legal requirement that children’s evidence be corroborated does not prevent a judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formally applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults … [Citations omitted. Emphasis added.]
[31] It is the trial judge who is best positioned to determine, in the overall context of a civil trial, whether the circumstances merit a specific caution to the jury on the issue of a witness’s relative youth at the material time. In the case at bar, the trial judge declined to issue the caution, partly in light of the fact that the Niles children had aged considerably since the collision, with Cassandra Niles being 17 years old, and Johnny Niles being 18 years old, at the time of trial. In my view, this discretionary decision on the part of the trial judge is supportable in the overall context of this case.
[32] In any event, on several occasions during the course of the trial, the appellant’s counsel had the opportunity to warn the jury to be wary of relying on the children’s evidence. For example, the appellant’s counsel at trial had ample opportunity to cross-examine the children on issues relating to the fact that they were very young at the time of the collision. Moreover, in his closing submissions to the jury, the appellant’s counsel emphasized the general frailty of children’s evidence, and asked the members of the jury to approach this issue from the perspective of their own life experience:
You also know from your own experience as parents, grandparents, aunts and uncles, that young children are impressionable, and subject to being influenced by adults and persons in authority.
Indeed, at the conclusion of his charge to the jury, the trial judge summarized the appellant’s position at trial on this issue in the following strong terms:
The evidence of Cassandra and Johnny Niles must be viewed with great caution. They are recalling events that occurred many years ago when they were young children … For both children there is a real concern that their recollections [were] influenced by adults or persons in authority.
Therefore, the jury was alerted to the appellant’s position regarding the potential frailties in the children’s testimony. This, I note, occurred despite the Supreme Court’s holding in W.(R.) to the effect that children’s evidence is not per se less reliable than that of their adult counterparts. This also suggests that the appellant suffered no substantial prejudice from the trial judge’s failure to charge the jury on the issue of the children’s youth at the time of the collision.
(b) Opinion Evidence of the Niles Children
[33] Counsel argues that a lay witness who offers opinion evidence must, among other attributes, have the necessary experience upon which to base the opinion. See John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Markham, Ontario: Butterworths Canada Ltd., 1999) at 609. Counsel notes that at the time of the accident, neither Cassandra Niles nor Johnny Niles had any driving experience. They were both under 16 years of age and had never driven a car at the time that they gave their statements in February 2002. Even at the time of trial, Cassandra had not yet driven a car.
[34] Counsel’s submission on appeal that the Niles children were “not entitled” to offer opinion evidence loses much of its force when one considers that this evidence was led through cross-examination by the appellant’s own counsel at trial. See paragraphs 13 and 15 above. Also, as this court noted in Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 814 at para. 15, “if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful.” Although the appellant argues that the opinions were only led by his trial counsel in the context of a prior inconsistent statement, it was his obligation to seek a clear limiting instruction from the trial judge regarding the use for which the jury could put this evidence. I would not give effect to this ground of appeal.
(c) Jury’s Finding that the Appellant Failed to Apply the Brakes
[35] Counsel for the appellant submits that the jury’s finding that Ms. Jones failed to apply her brakes in time or at all is unreasonable. He submits that at no time during the trial did counsel for the respondent suggest to the jury that Ms. Jones was negligent because of her failure to apply her brakes in time or at all. However, this allegation was made in the statement of defence and the trial judge referred to it in his charge to the jury as follows:
Well another one that they allege was that she failed to apply her brakes. Well the only people that mentioned brakes were the Niles children. Johnny said he heard them but you have to determine whether he was in the house watching cartoons or out in the yard. And Cassandra said she heard them. The photographs two days after the accident don’t appear to show any skid marks, but I don’t know, there’s no evidence as to whether there was rain. … I thought I heard that Diane Smith asked them to wash down where the dog had been killed. Whether that would have any impact if there had been skid marks I don’t know.
[36] In respect of the above excerpt from the jury charge, counsel for the appellant submits:
In this review of the evidence, the trial Judge recognized that the Niles children were the only witnesses to give evidence as to the application of brakes. Both children testified that the plaintiff had applied her brakes. Cassandra did so in her February 2002 statement but said at trial that she could not recall whether the brakes had been applied. Johnny Niles testified that he heard the brakes for 3-4 seconds prior to the accident. The jury’s finding is inconsistent with the only evidence on this issue. That particular of negligence is therefore unreasonable and significantly undermines the jury’s finding that Jones was negligen[t].
[37] I accept that the evidence of the Niles children is inconsistent with a finding that there was a failure to apply the brakes. However, the finding of negligence on this point is that Ms. Jones “failed to apply the brakes in time or at all”. [Emphasis added.] In my view, there was evidence from which a jury could find that Ms. Jones failed to apply the brakes in time. If the jury believed the evidence of Cassandra Niles that the dog stood stationary in an unobstructed position several hundred metres below the crest of the hill, that would have been sufficient to ground a finding that Ms. Jones failed to apply the brakes in time.
[38] While the language of the jury finding could have been more carefully crafted, the fact that the jury added the words “or at all” does not, in my view, render the first part of the finding inconsistent or unreasonable.
[39] Finally, in oral argument, counsel for the appellant submitted that the accident could not have happened in the way that the jury found. The only reasonable explanation is that the dog charged the car. Counsel submits that the distance from the crest of the hill to the location of the accident is four-tenths of a kilometre. Accepting that the appellant was travelling at 80 kilometres per hour, it would have taken the car eighteen seconds to travel that distance. Counsel submits that it was not possible for Ms. Jones to have missed seeing the dog in the road for eighteen seconds.
[40] Counsel is asking us to second guess the jury. The jury did not accept the appellant’s evidence that the dog charged the car. While eighteen seconds is a long time, as already stated, this court cannot interfere with the jury’s verdict unless we conclude “it is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it.” See McLean v. McCannell, supra at 343. While there is a certain attractiveness to counsel’s argument, I simply cannot conclude that the jury’s verdict is so plainly unreasonable and unjust that it could not have reached it, acting judicially.
(e) Was the 35/65 percent Division of Responsibility Appropriate?
[41] It would be both convenient and logical at this point to deal with the issue raised by the court after the completion of the oral argument: “[A]ccepting the jury’s findings of fact, was the 35/65 [percent] division of responsibility appropriate?”
[42] Counsel for the appellant concedes that if Cassandra Niles’s evidence is to be accepted in its entirety, then the 35/65 percent division of responsibility was appropriate. He also argues that there is a view of the evidence available to the court which could lead to a different division of responsibility. He reasons as follows:
However, it is open to this Court to determine that the case at trial was not one of diametrically opposed versions of events. Rather, it was open to the jury to accept some of the child’s evidence, but not all of it, in arriving at its findings of fact. In that case, it was open to the jury to strip away the more unreliable (and implausible) aspects of the child’s evidence (concerning the more adult subject matter of driving, timing, etc.) while at the same time accepting her basic assertion that the dog walked onto, rather than charged onto, the road. On that view of the evidence, there was a moment of inattention by the plaintiff (consistent with the jury’s findings), but something significantly less than the 18 seconds that Cassandra would unreasonably attribute to the plaintiff. Then, given the brief nature of the inattention, Carol made the all too human error of over-reacting to the situation and losing control of her vehicle, again consistent with the finding of the jury.
On the basis of the above analysis, counsel concludes that liability should be divided 75 percent to the respondent and 25 percent to the appellant.
[43] A jury’s decision on apportionment of damages can only be disturbed in exceptional circumstances. See Deshane v. Deere & Co., supra, at 238 and Jack (litigation guardian of) v. Kirkrude, 2002 9922 (ON CA), [2002] O.J. No. 192 at para. 3. As this court noted in McIntyre v. Gregg (2006), 2006 37326 (ON CA), 274 D.L.R. (4th) 28 at para. 38, in “the absence of a material misdirection or non-direction”, an appellate court will not disturb a jury’s apportionment decision unless “no jury reviewing the evidence as a whole and acting judicially could have arrived at that conclusion.” The appellant has failed to convince me that such interference is justified in this case.
[44] I do not agree that, on the issue of apportionment, there is a useful distinction in this case between the “basic assertion” in Cassandra’s evidence and the portions of her evidence relating to the “adult subject matter of driving, timing etc.” In my view, the aspect of Cassandra Niles’s evidence most relevant to apportionment was her position that the dog stood stationary on the road during the entire time that Ms. Jones’ car travelled from the crest of the hill to the scene of the collision. This core aspect of Cassandra Niles’s evidence – which was the “basic assertion” in her testimony – is diametrically opposed to the evidence of Ms. Jones and her son. It firmly grounds the jury’s apportionment of damages without necessary resort to “implausible aspects of the child’s evidence concerning the more adult subject matter of driving, timing, etc.”
[45] Counsel’s theory as to how the court could come to a 75/25 percent split in favour of the appellant would involve the court re-trying the issue, which is an impermissible course to follow. Even if I was prepared to accept that Cassandra Niles’s evidence can be divided as the appellant has suggested, it is trite law that a jury is entitled to rely on all of a witness’s evidence; the jury in this case was entitled to rely on all of Cassandra Niles’s evidence in apportioning liability. Although I may well have come to a different apportionment of the responsibility for this accident, the appellant has failed to point to “exceptional circumstances” that could justify appellate interference.
(2) Is the Jury’s Assessment of Damages for Past and Future Loss of Income unreasonable?
[46] Counsel for the appellant challenges the jury’s assessment of past loss of income and future loss of income on the following bases:
(a) the jury was misdirected on the issue of mitigation;
(b) there was no basis to support the respondent’s suggested figures for future income and pension loss; and
(c) the respondent’s assumptions and actuarial theories should not have gone to the jury.
(a) Was the Jury Misdirected on the Issue of Mitigation?
[47] In respect of mitigation, the appellant’s position at trial was twofold. First, she argued that the respondent had failed to prove that she could have found administrative work in 2002 even if she wanted to. In other words, she attacked the respondent’s position that she could have earned $40,000 per year starting in 2002, had she been prepared to accept administrative work. Second, she also argued that her own interests were important and that she acted reasonably by pursuing a master’s degree and counselling career rather than undertaking administrative work that she found unbearable. In this context, the trial judge gave what he described as the “standard charge” on mitigation:
[237] When a plaintiff is wronged, he or she is required to act reasonably to mitigate or lessen the loss. No damages are recoverable for any loss that Carol Jones could have avoided through reasonable action.
[238] In this case you must decide whether Carol Jones could have pursued job opportunities more actively. On this issue the burden of proof rests with Walter Niklaus. Walter Niklaus must prove on the balance of probabilities that Carol Jones did not act reasonably. Merely suggesting some other course that Carol Jones might have followed is not good enough. Criticism of Carol Jones, her conduct, by Walter Niklaus must be viewed with caution as you may decide that it was Walter Niklaus who was responsible for these damages.
[239] Carol Jones is not held to a high standard of conduct in mitigation. The law is satisfied if Carol Jones takes steps that a reasonable person would take in the circumstances to reduce the loss. Whether Carol Jones did act reasonably to reduce her damages is a question of fact for you to decide. If Walter Niklaus satisfies you that Carol Jones did not act reasonably you must not award Carol Jones compensation for any losses which could have been avoided had she acted reasonably to reduce the damages.
[240] Now upon reflection, and you may find that there are other things that you would have considered in this area, but I suggest that you may want to have reviewed when everybody said the active treatment period had ended. And you may want to look at, were there any jobs available, such as the $40,000 job that the defendant suggests she should have taken beginning in September of 2002.
[48] At the conclusion of the charge, trial counsel for the appellant took issue with the sufficiency of the last passage from the charge on mitigation:
… Your Honour, you explained to the jury that one issue they would have to consider is when the plaintiff was physically and emotionally able to return to work. A second issue for them to consider was whether or not when she was able to return to work were there any jobs available to her. There is a third issue which I would ask that the jury be instructed on, and that is they could answer yes to those two questions, or two issues, but if they considered that the plaintiff’s vocational plans were reasonable, they could conclude that she has fulfilled her duty to mitigate.
The trial judge declined to re-charge the jury on the basis that his charge on mitigation was sufficient.
[49] Counsel for the appellant on appeal argues that the trial judge misdirected the jury on mitigation by failing to instruct the jury that the appellant’s interests should play an “important role” on this issue. Instead, counsel submits that the judge emphasized the appellant’s ability to obtain employment in 2002. The jury charge ignored her concern that administrative jobs had become unbearable and that counselling was an appropriate alternative to a teaching job which she was denied as a result of her injuries caused by the respondent.
[50] As I understand the position of counsel on appeal, he does not take issue with the abstract statements of law contained in the first three paragraphs of the charge on mitigation. Instead, according to counsel for the appellant, because the fourth paragraph of the charge “was skewed towards a consideration of [Ms Jones’] ability to obtain alternative employment in 2002, as proposed by the defendant [at trial]”, the trial judge was obliged to go further and instruct the jury that the appellant’s vocational interests were also important. Without this clarification, the appellant submits, the jury was misdirected on mitigation.
[51] Counsel relies on this court’s reasons for judgment in Talon v. Whalley (1988), 1988 4628 (ON CA), 63 O.R. (2d) 723. In that case, the plaintiff was injured while riding his bicycle. At the time of the accident, he was due to become an apprentice gas fitter. Due to his injuries, he could not do heavy labour and was not able to take up the apprenticeship. He decided that he would pursue a career as an optometrist which would take nine years of study and two degrees before he qualified. The trial judge assessed his damages on the basis of nine years’ lost income as a gas fitter. This court, on appeal, found it was not reasonable to compensate the plaintiff for lost income while pursuing a nine-year professional course of study leading to a career that the plaintiff had no intention or expectation of achieving before the accident. However, this court held that compensation at the gas fitter rate for a period of three years while the plaintiff obtained his Bachelor of Science degree was reasonable in the circumstances. According to this court (at p. 726), in mitigating damages, a plaintiff “is bound to act with the defendant’s interest in mind as well as his own.” [Emphasis added.]
[52] The appellant also relies upon the reasons for judgment of this court in Peet v. Babcock & Wilcox Industries Ltd. (2001), 2001 24077 (ON CA), 53 O.R. (3d) 321. This was a wrongful dismissal case in which the court said at para. 8:
An employee who has been terminated is entitled to consider his or her own long-term interests when seeking another way of earning a living. The respondent’s efforts at mitigation cannot be classified as unreasonable simply because his actions did not neglect all other interests while focussing exclusively on his short-term obligation to mitigate damages for the sake of his former employer.
[53] Both of the above cases are non-jury cases and do not address the specific issue of jury misdirection. The question in cases of alleged misdirection is not whether the charge constitutes a perfect articulation of the law in the relevant area. Instead, as this court noted in Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 2006 12284 (ON CA), 267 D.L.R. (4th) 690, the question is whether the jury would have understood the applicable legal principles, given the charge as a whole:
An appellate court reviewing a trial judge’s charge will not hold the instructions to a standard of perfection: Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (2004), 2004 874 (ON CA), 71 O.R. (3d) 803 at para. 19 (C.A.). The reviewing court is concerned less with whether the law was perfectly stated and more with whether the jury would have properly understood the law at the end of the charge.
[54] In the context of this charge, the appellant focuses on the last paragraph on mitigation, where the trial judge emphasized the appellant’s ability to return to work in 2002 and the availability of administrative jobs at that time. It was this single passage from the charge on mitigation to which the appellant’s counsel objected at trial. In my view, this passage constitutes a comment by the trial judge regarding the evidence; it represents a suggestion by the trial judge that the jury consider two aspects of the evidence when examining mitigation.
[55] The trial judge’s comments were fair given the parties’ relative positions on mitigation at trial. The appellant’s own position at trial was that the respondent had failed to prove that there was administrative work available to the appellant in 2002. In other words, by pointing the jury to the evidence concerning the availability of administrative work in 2002, the trial judge was merely encouraging it to make a finding on an issue on which both parties had taken clear and opposing positions. Bearing in mind that a trial judge is permitted to express opinions on the evidence, it is relevant to me that the trial judge neutrally pointed to a factual issue central to both parties’ positions on mitigation.
[56] Also, before making the impugned evidentiary suggestions, the trial judge clearly instructed the jury, in terms favourable to the appellant, that there was an important overarching question on mitigation: whether the defendant had proven, on a balance of probabilities, that the plaintiff failed to take steps that a reasonable person would take in the circumstances to reduce her loss. The jury was therefore clearly told to consider the reasonableness of the appellant’s conduct, which would include her conduct in choosing to spend five years pursuing a third university degree – a master’s degree from Tyndale College – rather than pursue more immediate employment. The concept of reasonableness was pivotal to mitigation and I am satisfied that the trial judge’s charge on this issue was more than adequate. What I believe becomes clear from the jury’s assessment of the damages is that the jury simply did not accept as reasonable the appellant’s plan to pursue a third university degree over a five-year period.
[57] Before making the impugned comments, the trial judge told the jury that it was free to consider other aspects of the evidence beyond those raised by the trial judge. In the end, the trial judge simply suggested two aspects of the evidence that the jury “may” want to consider on mitigation.
[58] In conclusion, I find nothing legally defective or improper in the trial judge’s charge on mitigation and would decline to find the jury award unreasonable on that basis.
(b) Was there a Basis to Support the Respondent’s Suggested Figures for Future Income and Pension Loss?
[59] Under this ground of appeal, counsel for the appellant argues that the jury’s award of damages for future income loss was based on a theory postulated by counsel for the respondent that Ms. Jones’s future income loss should be calculated on the assumption that the difference between what she would earn as a teacher and what she would earn if she entered the workforce in an administrative position would stay constant each year. Counsel submits that there was no evidence to support this assumption.
[60] The so-called “lock-step” theory was derived from the respondent’s cross-examination of the actuarial expert called by counsel for the appellant. As I read the evidence, counsel in cross-examination was testing the opinion of the appellant’s expert by putting to him hypothetical questions which counsel is entitled to do. In his charge to the jury, the trial judge cautioned the jury as to the limited application of the “lock-step” theory. While he could have added that the evidence was based upon answers to hypothetical questions, I do not believe his failure to do so is any reason to interfere with the jury’s award of damages. It would have been clear from the actual questions that the theory was postulated on a hypothetical basis.
[61] In any event, the quantification of future loss is ultimately an uncertain exercise: see Waddams, The Law of Damages, loose-leaf (Aurora, Ontario: Canada Law Book, 2007) at para. 13.60. In this case, much of the evidence bearing on future loss came from actuarial testimony premised on various assumptions and hypothetical questions. Some assumptions and hypothetical scenarios are more likely or plausible than others, but this is a question for the jury to decide. In my view, the jury was adequately instructed on the limited use to which it could put the “lock-step” theory and it was entitled to assess future loss as it did.
[62] In respect of the pension portion of the future income loss, the appellant submits that counsel for the respondent advanced another erroneous theory in his cross-examination of the actuary. He asked the actuary to assume that the appellant would have obtained pensionable employment from 2002 rather than 2008 when she was expected to graduate with her master’s degree from Tyndale College.
[63] Counsel for the appellant contends that this assumption required Ms. Jones to have completed her counselling degree by 2002. I disagree. A fair reading of the entire cross-examination on this issue makes it clear that counsel was not limiting his questions to the assumption that Ms. Jones would have obtained work as a counsellor in 2002. In one answer given by the witness, it was the witness who limited his response to Ms. Jones completing her degree in counselling and obtaining a counselling job in 2002. However, as soon as the witness did so, counsel made it clear that the job he was positing was not limited to a position as a counsellor. It included a broader category of government jobs. This is also clear from counsel’s closing address to the jury. In any event, it is clear that the thrust of this cross-examination was to establish the simple point that the earlier one starts contributing to a pension plan, the greater will be the future entitlement. In my view, counsel for the appellant takes an unreasonably restrictive view of the scope of the respondent’s position on the issue of pension entitlement during the cross-examination of the actuary.
[64] I also observe that the argument made by counsel in respect of future loss of income is premised on the basis that the jury simply adopted the figures advanced by the respondent at trial. I do not accept this premise. The respondent’s position at trial was that the jury should award a total of $240,000 for future loss of income, including loss of pension entitlement. The jury award was nearly $50,000 greater than that number.
(c) Should the Respondent’s Assumptions and Actuarial Theories have Gone to the Jury?
[65] Finally, counsel for the appellant submits that the respondent’s assumptions and actuarial theories should not have gone to the jury. This argument is essentially a repetition of the argument in respect of the jury’s award for loss of past and future income and, as indicated, I am not persuaded by the appellant’s submission. Counsel further submits that the respondent’s theories were confusing to the appellant’s counsel and the trial judge. He points out that this is demonstrated by the fact that the trial judge personally contacted the actuary outside of court hours to confirm that the “lock-step” theory was plausible. Appellant’s counsel does not suggest any impropriety on the part of the trial judge other than to observe that it was a highly unusual step. That said, there was no objection at trial and no objection in this court. Whatever the trial judge’s confusion may have been, he appears to have cleared it up before he charged the jury. Moreover, as I noted above, the respondent was free to introduce assumptions and hypothetical questions in the course of leading evidence on future loss of income.
DISPOSITION
[66] For the above reasons, I would dismiss the appeal.
COSTS
[67] I would award the respondent his costs of the appeal on a partial indemnity basis fixed in the amount of $15,000 including disbursements and GST.
RELEASED:
“JUN 24 2008”
“KMW” “Robert P. Armstrong J.A.”
“I agree K.M. Weiler J.A.”
“I agree S. Borins J.A.”