COURT OF APPEAL FOR ONTARIO

CITATION: Placzek v. Green, 2012 ONCA 45

DATE: 20120126

DOCKET: C52959

Doherty, LaForme and Hoy JJ.A.

BETWEEN

Carmen Placzek

Respondent (Plaintiff)

and

Albert Green

Appellant (Defendant)

Todd J. McCarthy, for the appellant (defendant)

Barbara Legate and Sue Noorloos, for the respondent (plaintiff)

Heard: January 19, 2012

On appeal from the judgment of Justice H.A. Rady of the Superior Court of Justice, dated October 15, 2010.

ENDORSEMENT

[1] At the end of oral argument, we advised counsel that the appeal would be dismissed with reasons to follow. These are those reasons.

[2] The respondent, Carmen Placzek, was injured in a “rear end collision”. The appellant, Albert Green, was the driver of the vehicle that struck the vehicle in which the respondent was riding. Liability, while not conceded, was not strongly contested. Damages were very much in issue.

[3] The respondent had suffered from severe fibromyalgia for many years prior to the accident. The appellant argued that to the extent that the respondent’s physical problems interfered with her life after the accident, those problems were attributable in whole or in the main to the serious pre-existing condition and not to the relatively minor accident involving the vehicle driven by the appellant.

[4] The trial judge struck the jury at the outset of the trial. She ultimately found the appellant liable. With respect to damages, the trial judge held that despite the respondent’s prior physical problems, the injuries suffered as a result of the car accident had caused significant problems for the respondent. The trial judge ultimately awarded damages in the amount of $919,237. A large portion of that amount went toward damages attributable to the lost income and lost future income claims.

[5] There are two grounds of appeal.

I

The Decision to Discharge the Jury

[6] As indicated above, the trial judge discharged the jury at the outset of the trial. The decision to discharge a jury is a discretionary one. This court will defer to the exercise of that broad discretion unless it is shown that the discretion was exercised on a wrong principle or that its exercise in the circumstances can properly be characterized as arbitrary, capricious or unreasonable. Clearly, trial courts are given considerable leeway in exercising their discretion on this question: Hunt v. Sutton (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 at para. 52 (C.A.); Cowles v. Balac (2006), 83 O.R. (3d) 680 at paras. 31-46 (C.A.).

[7] The trial judge recognized that the right to trial by jury was a substantive one and that the respondent bore the onus of demonstrating that the justice of the case would be better served by the discharge of the jury. Nor is it argued that the trial judge erred in making her determination prior to the commencement of the evidence.

[8] We had the benefit of a careful and critical review of the trial judge’s reasons for discharging the jury. As we read those reasons, paras. 16 through 20 speak to the anticipated complexity of the evidence relevant to the damage assessment. In the trial judge’s view, that complexity arose out of several aspects of the evidence. First, there was the respondent’s pre-existing medical condition and the need to determine the impact of that condition on the respondent’s post-accident medical condition (paras. 16-18). Second, there was competing expert evidence relating to the respondent’s loss of income and loss of future income claims. The respondent was a self-employed realtor and there were several factual variables relevant to her lost income claims. Those variables complicated the quantification of that claim (para. 19). Third, there was competing and somewhat complex medical, engineering and biomedical evidence (para. 20).

[9] Based on these evidentiary complexities, the trial judge concluded, at para. 21:

As a result, of all of the foregoing I am satisfied that this case is of sufficient complexity that it is in the interest of justice that the jury notice be struck.

[10] It was open to the trial judge to reach this conclusion. While counsel for the appellant mounted a powerful argument in support of his position that this was not really a complicated case at all, we cannot describe the trial judge’s characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. Other judges may have reached a different assessment of the complexity of the evidence and declined to strike the jury. The fact that other judges may have exercised their discretion differently is, of course, not a basis upon which this court can interfere with this trial judge’s exercise of her discretion.

[11] The trial judge, after indicating that the evidentiary complexity satisfied her that the interests of justice required that the jury notice be struck, went on to address certain other factors which, in her view, also supported the exercise of her discretion in favour of striking the jury (paras. 22-24). We agree with counsel for the appellant that some of these considerations were irrelevant to the question of whether the jury should be struck. For example, the trial judge speculated about the manner in which some of the evidence would be put before the jury and the advantages or disadvantages that one side or the other might have as a consequence. This kind of speculation is unhelpful and had no relevance to whether the jury should be struck before the trial started. Similarly, the concerns expressed by the trial judge about the position taken by the appellant on liability could not, in our view, provide any basis for striking the jury. The determination of liability would not have posed any problem for a jury in this case.

[12] The trial judge, however, made it clear in her reasons that she struck the jury because of the anticipated evidentiary complexity on matters relating to damages. She clearly would have struck the jury without regard to the other factors, some of which we find to be inappropriate considerations. Errors in respect of those matters did not taint the exercise of the trial judge’s discretion.

[13] We would not interfere with the trial judge’s decision to strike the jury.

II

Damages

[14] The appellant argues that the trial judge did not attempt to quantify the damages based on a critical assessment of the evidence, but instead simply picked a point somewhere in the middle between the various scenarios advanced by the parties. We see no support for this submission in the record. The trial judge decided that the respondent’s post-accident problems were attributable to the accident. She found that as a result of the accident, the respondent’s working life was shortened and that she would work only part-time for part of that shortened working life. These findings were available on the evidence and drove the damage calculation, especially as it related to the calculation of the respondent’s loss of income claims.

[15] The appellant has not offered any basis upon which this court should interfere with the damage assessment.

III

CONCLUSION

[16] The appeal is dismissed. The respondent is entitled to her costs in the amount of $25,000, inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“H.S. LaForme J.A.”

“Alexandra Hoy J.A.”