Court File and Parties

CITATION: Guerrero v. Fukuda, 2010 ONCA 502

DATE: 20100709

DOCKET: C49525

COURT OF APPEAL FOR ONTARIO

MacPherson, Cronk and Karakatsanis JJ.A.

BETWEEN

Dellanira Montero Guerrero also known as Dellanira Montero

Plaintiff (Respondent in Appeal)

and

Mikko Fukuda and Ellchi Fukuda

Defendants (Appellants in Appeal)

Counsel: Alan L. Rachlin, for the appellants Jasmine T. Akbarali and Louise F. Moher, for the respondent

Heard and released orally: July 8, 2010

On appeal from the judgment of Justice T. David Little of the Superior Court of Justice, sitting with a jury, dated September 26, 2008.

Endorsement

[1] The appellants, Mikoko and Ellchi Fukuda, appeal from the trial judge’s determination of a threshold motion on the issue of whether the plaintiff/respondent Dellarina Montero Guerrero had sustained serious impairment of an important physical, mental or psychological function. The appellant also appeals from part of the jury award, namely, the $16,000 award (as reduced by the trial judge for statutory reasons from the jury’s figure of $20,000) for past lost income.

[2] We see no basis for interfering with the trial judge’s threshold determination. He carefully considered the relevant statutory provisions, the evidence of the plaintiff, who he described as “industrious, honest, perhaps understated and naive”, the evidence of the plaintiff’s family doctor, who he described as “a wonderful, straightforward witness”, and the evidence of the physiatrist called by the defence, which he described as “a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.” The trial judge’s conclusion that the plaintiff met the statutory threshold was, in our view, entirely open to him on the record. In particular, in the circumstances of this case, the trial judge’s reasons and the plaintiff’s medical evidence adequately addressed the evidentiary requirements of the applicable regulation.

[3] Nor do we see any basis for setting aside the jury’s very modest award for past lost net income. We do not accept the appellant’s assertion that there was “absolutely no evidence” to allow the jury to properly determine the quantum of the plaintiff’s past lost income. There was evidence of her post-accident work history and income that clearly grounded the jury’s modest award.

[4] This was a brief, simple, largely non-jurisprudential trial that resulted in a very modest judgment in favour of an “industrious, honest” plaintiff. In our view, there is no serious basis for challenging the trial judge’s decision on the threshold or the jury’s award of damages to the plaintiff.

[5] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $12,500 inclusive of disbursements and GST.

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”

“Karakatsanis J.A.”